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United States v. Cortes-Gomez

United States District Court, D. Kansas

September 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCO ANTONIO CORTES-GOMEZ (01), Defendant.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE.

         On December 2, 2016, a jury convicted defendant Marco Antonio Cortes-Gomez of two counts: (1) one for conspiracy to possess with intent to distribute a controlled substance; and (2) for attempted possession with intent to distribute a controlled substance. Doc. 38. Soon after, Mr. Cortes-Gomez filed pro se a Motion for New Trial (Doc. 40) and a Motion for Suspension of Sentencing (Doc. 41). Mr. Cortes-Gomez also filed a Motion for Judgment of Acquittal (Doc. 42) and Motion for New Trial (Doc. 43). Later, Mr. Cortes-Gomez filed pro se a Motion to Vacate Conviction (Doc. 57). The court appointed Forrest A. Lowry as new counsel for Mr. Cortes-Gomez in January 2017, and, with the assistance of counsel, Mr. Cortes-Gomez has filed memoranda supporting his Motion for Judgment of Acquittal and Motion for New Trial. Docs. 62, 63. On August 21, 2017, the court held a motion hearing. During the hearing, the court found as moot the pro se Motions for New Trial (Doc. 40), for Suspension of Sentencing (Doc. 41), and to Vacate (Doc. 57). Doc. 69 at 1. The court took under advisement the Motions for Acquittal (Doc. 42) and for New Trial (Doc. 43). Id. After carefully considering the facts and arguments presented by the parties, the court denies Mr. Cortes-Gomez's Motions.

         I. Factual and Procedural Background

         Law enforcement officers arrested Mr. Cortes-Gomez during a controlled methamphetamine delivery in Topeka, Kansas. Officers arranged the controlled delivery after a Kansas Highway patrol trooper seized 2.3 kilograms of methamphetamine during a traffic stop in Ellis County, Kansas. The methamphetamine was wrapped in five bundles and hidden in a spare tire. The vehicle's driver agreed to cooperate with law enforcement by setting up the controlled delivery and taking the methamphetamine to its intended recipients.

         On December 18, 2015, the cooperating driver set up the meeting to drop off a spare tire to two recipients in a Walmart parking lot. Officers later identified the two recipients as Mr. Cortes-Gomez and Juanita Garcia. Before the driver arrived at the Walmart, Mr. Cortes-Gomez suggested they should move to a nearby AutoZone. The driver took the tire to AutoZone where Mr. Cortes-Gomez and Ms. Garcia were waiting to meet him. Officers then arrested Mr. Cortes-Gomez and Ms. Garcia in connection with the planned exchange.

         The government charged Brenda Sanders, Robert Worthington, James Ross, Ms. Garcia, and Mr. Cortes-Gomez with conspiracy to distribute methamphetamine from 2013-2015. Ms. Garcia, Ms. Sanders, Mr. Ross, and Mr. Worthington pleaded guilty. See Case No. 16-40004, Docs. 106, 124, 148, 149. Mr. Cortes-Gomez pleaded not guilty, and his jury trial began on November 29, 2016. The court appointed Lance Sandage and Sarah Hess to represent Mr. Cortes-Gomez at this trial.

         Ms. Garcia, Ms. Sanders, Mr. Ross, and Mr. Worthington all testified for the prosecution at trial. Ms. Garcia testified that she traveled with Mr. Cortes-Gomez to the Topeka Walmart parking lot to pay for and pick up drugs. Doc. 60 at 256-57. She testified that she knew the tire contained drugs because previously she had received methamphetamine deliveries inside a tire. Id. at 257. Ms. Garcia also testified that the intended recipients of the methamphetamine were Ms. Sanders, Mr. Ross, and a man named Bob. Id. at 260. Ms. Garcia testified that she does not remember if she and Mr. Cortes-Gomez ever had a conversation about distributing methamphetamine, but that she started getting involved with Mr. Cortes-Gomez's distribution little-by-little-taking money, talking on the phone, sending messages, or riding with Mr. Cortes-Gomez to Topeka. Id. at 263. Also, she testified that her phone conversations and messages involved distributing methamphetamine. Id. And, Ms. Garcia testified that when she would ride with Mr. Cortes-Gomez to Topeka, it was for the purpose of distributing methamphetamine, or for retrieving money for methamphetamine. Id. Ms. Garcia offered testimony that the night that she and Mr. Cortes-Gomez were arrested, she had a notebook in Mr. Cortes-Gomez's car, Doc. 60 at 267, and that the notebook served as a ledger of his drug business. Id. at 268-69. The ledger listed names of people that they had distributed methamphetamine to, and the amount that they had distributed to them. Id. at 271-72. In one of the ledger's pages, she had written that they had given Ms. Sanders four pounds and 10 ounces of methamphetamine, and that she had given Mr. Woods three pounds and five ounces of methamphetamine. Id. Ms. Garcia testified that Mr. Cortes-Gomez decided how much to charge for the methamphetamine. Id. at 274-75.

         Mr. Ross also testified at trial against Mr. Cortes-Gomez. He explained that he and Mr. Cortes-Gomez discussed distributing methamphetamine. Doc. 60 at 313. Mr. Ross testified that he paid Ms. Sanders $5, 000 for her to introduce him to Mr. Cortes-Gomez so that he would no longer need to use her as a “middleman.” Id. at 314. And, Mr. Ross testified, when he met Mr. Cortes-Gomez, Ms. Garcia translated for them. Id. at 314-15. He testified that he purchased a pound of methamphetamine from Mr. Cortes-Gomez, and that he did not intend it for personal use. Id. at 315-16. Mr. Ross testified that he had purchased methamphetamine from Mr. Cortes-Gomez about 10 times, and that sometimes, Mr. Cortes-Gomez would front the methamphetamine, meaning that Mr. Cortes-Gomez would provide him with the methamphetamine and he would pay for it later. Doc. 60 at 317. Mr. Ross testified that his transactions with Mr. Cortes-Gomez occurred in Topeka. Id. at 319. Mr. Ross also testified that Mr. Cortes-Gomez was present during the transactions, id., and that Mr. Cortes-Gomez had helped him take the methamphetamine out of a tire before. Id. at 322-23. Mr. Ross testified that he purchased the methamphetamine to sell to make money. Id. at 315-16.

         Mr. Worthington testified as well. He explained that he had purchased about two pounds of methamphetamine from Mr. Cortes-Gomez every week for almost two years. Id. at 135-36. Mr. Worthington testified that he had bought around 100 kilograms of methamphetamine from Mr. Cortes-Gomez. Id. at 139. And, Mr. Worthington testified that he had been with Mr. Cortes-Gomez once when Ms. Sanders had dropped off 11 pounds of methamphetamine inside a tire. Id. at 141-42.

         A woman named Tara Morales also testified at trial. Doc. 59 at 243. Ms. Morales testified that Mr. Cortes-Gomez talked to her about transporting methamphetamine sometime around 2012. Id. at 248-49. Ms. Morales was living in Dallas, Texas, when Mr. Cortes-Gomez asked her to get involved with his drug trafficking efforts. She agreed. Id. at 249-50. According to Ms. Morales, Mr. Cortes-Gomez set up everything required for the transportation and all she had to do was transport the drugs. Id. at 249-51. She testified that she would drive the methamphetamine to Kansas City and Topeka. Id. at 252. And, Ms. Morales testified that Mr. Cortes-Gomez was present when the methamphetamine was unloaded. Id. at 253. Ms. Morales also testified that she allowed Mr. Cortes-Gomez to deposit thousands of dollars into her bank account. Id. at 248.

         In addition to Mr. Cortes-Gomez's co-conspirators, the government presented evidence from DEA Chemist Edward Erisman who testified that the substance Mr. Cortes-Gomez and Ms. Garcia intended to receive was methamphetamine. Doc. 59 at 210-213.

         The jury convicted Mr. Cortes-Gomez of both counts on December 2, 2016, and he was remanded to custody. Mr. Cortes-Gomez immediately filed a Motion for New Trial and Motion for Stay of Sentencing pro se. Docs. 40, 41. Mr. Cortes-Gomez's counsel then filed a Motion for Judgment of Acquittal and Motion for New Trial, and requested more time to file the supporting memoranda, which the court granted. See Docs. 42, 43, 45. Soon after, Mr. Sandage and Ms. Hess withdrew as Mr. Cortes-Gomez's attorneys. Docs. 46, 51. The court then appointed Mr. Lowry as Mr. Cortes-Gomez's counsel. Doc. 52. Plaintiff then filed a pro se Motion to Vacate the Conviction. Doc. 57. And, Mr. Lowry filed memoranda supporting Mr. Cortes-Gomez's Motion for Judgment of Acquittal and Motion for New Trial. Docs. 62, 63.

         II. Motion for Judgment of Acquittal

         A. Legal Standard

         On a motion for judgment of acquittal under Fed. R. Crim. P. 29(c), the court must uphold the jury's verdict of guilty if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Haber, 251 F.3d 881, 887 (10th Cir. 2001) (citation and internal quotation marks omitted). Put another way, the court will reverse a jury's verdict only if no reasonable juror could have found the defendant guilty. United States v. Dewberry, 790 F.3d 1022, 1028 (10th Cir. 2015); United States v. Magleby, 241 F.3d 1306, 1312 (10th Cir. 2001).

         When reviewing a sufficiency of the evidence argument like Mr. Cortes-Gomez makes here, the court “must ask only whether taking the evidence-both direct and circumstantial, together with the reasonable inferences to be drawn therefrom-in the light most favorable to the government, a reasonable jury could find [defendant] guilty beyond a reasonable doubt.” Magleby, 241 F.3d at 1311-12 (citation and internal quotation marks omitted). “[T]he evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt.” Id. at 1112 (citation and internal quotation marks omitted). And, “where conflicting evidence exists, ” the court must “not question the jury's conclusions regarding the credibility of witnesses or the relative weight of evidence.” Id. Instead, the court simply must “determine whether [the] evidence, if believed, would establish each element of the crime.” United States v. Vallo, 238 F.3d 1242, 1247 (10th Cir. 2001) (quoting United States v. Evans, 42 F.3d 586, 589 (10th Cir. 1994)). The court thus must give “considerable deference to the jury's verdict.” Dewberry, 790 F.3d at 1028 (citation and internal quotation marks omitted). But while the court's review is deferential, the evidence must do “more than raise a mere suspicion of guilt.” Id. (internal quotation marks and citation omitted). And, any inferences drawn from direct and circumstantial evidence “must be more than speculation and conjecture to be reasonable.” Id. (citation and internal quotation marks omitted).

         B. Analysis

         Mr. Cortes-Gomez raises three arguments to support his Motion for Judgment of Acquittal. First, Mr. Cortes-Gomez asserts that the weight of the evidence at trial was insufficient to find him guilty beyond a reasonable doubt on Counts 1 and 2. Second, Mr. Cortes-Gomez contends that the court should have dismissed the Indictment because his Speedy Trial rights were violated. Finally, Mr. Cortes-Gomez asserts that the prosecution's late disclosure of Ms. Morales's proffer harmed his ability to investigate Ms. Morales fully before trial. The court addresses these arguments in the next three sections.

         1. Sufficiency of Evidence

         a. Count 1: Conspiracy to Possess with Intent to Distribute

         Count 1 charges plaintiff with conspiracy to possess with intent to distribute methamphetamine. A conviction on Count 1 requires the government to prove beyond a reasonable doubt: (1) an agreement between Mr. Cortes-Gomez and at least one other person to violate federal drug laws; (2) that Mr. Cortes-Gomez knew of the essential objective of the conspiracy; (3) that Mr. Cortes-Gomez knowingly and voluntarily involved himself in the conspiracy; and (4) interdependence existed among the members of the conspiracy. See United States v. Nicholson, 136 F. App'x 145, 146 (10th Cir. 2005); see also Doc. 35 at 13 (Jury Instruction for Count 1). Here, the government presented far more than sufficient evidence to establish each element of this charge.

         The first element required the government to present evidence supporting an agreement between Mr. Cortes-Gomez and at least one other person to possess and distribute methamphetamine. See United States v. Wardell, 591 F.3d 1279, 1287 (10th Cir. 2009). An agreement may be express or implied, and “may be inferred entirely from circumstantial evidence.” Id. Circumstantial evidence includes “the joint appearance of defendants at transactions and negotiations in furtherance of the conspiracy.” Id.

         The government presented testimony by Mr. Worthington that he had purchased methamphetamine from Mr. Cortes-Gomez, and that he had been with Mr. Cortes-Gomez when Ms. Sanders delivered a tire containing the drug to Mr. Cortes-Gomez. And, Ms. Morales testified that Mr. Cortes-Gomez recruited her to transport methamphetamine from Texas to Kansas. Ms. Garcia also testified that she went with Mr. Cortes-Gomez to Walmart to meet the driver and pick up the tire full of methamphetamine. And, Ms. Garcia testified that she and Mr. Cortes-Gomez were together when the driver arrived to deliver the tire. She also testified that she had gone to Topeka with Mr. Cortes-Gomez to distribute methamphetamine and, at other times, to collect drug proceeds. This evidence is more than sufficient for a reasonable jury to infer that Mr. Cortes-Gomez had an agreement with at least one other person to distribute methamphetamine.

         Proof of the elements of a conspiracy charge tend to overlap. United States v. Pickel, No. 16-3041, 2017 WL 3028502, at *7 (D. Kan. Jul. 18, 2017). The second element requires the government to show that the defendant had a “general awareness of both the scope and the objective of the” conspiracy. Id. (quoting United States v. Hamilton, 587 F.3d 1199, 1206 (10th Cir. 2009)). Evidence “establishing that a defendant purchased drugs on multiple occasions and for the purpose of resale, as opposed to a one time purchase for personal use” indicates the defendant “shared common goals with the larger conspiracy.” United States v. Small, 423 F.3d 1164, 1183 (10th Cir. 2005). And the third element requires the government to show that defendant knowingly and voluntarily became involved in the conspiracy. The testimony by Mr. Worthington, Mr. Ross, Ms. Sanders, and Ms. Garcia supports these second and third elements in addition to the first element.

         Finally, the government presented evidence at trial showing interdependence among the members of the conspiracy. “Interdependence is established when each co-conspirator's actions are necessary to establish a common, illicit goal.” United States v. Rogers, 556 F.3d 1130, 1138-39 (10th Cir. 2009). The testimony at trial provided ample evidence for a rational jury to conclude that Mr. Cortes-Gomez's role was necessary to the ultimate objectives of the conspiracy-possessing methamphetamine with the intent to distribute it. In sum, a reasonable jury could conclude that Mr. Cortes-Gomez is guilty of Count 1 beyond a reasonable doubt.

         Mr. Cortes-Gomez urges the court to consider evidence that, he contends, makes the verdict unreasonable. First, Mr. Cortes-Gomez emphasizes that it was the driver, and not Mr. Cortes-Gomez, who started to reach under the truck to get to the spare tire holding the drugs. Doc. 62 at 2. Then, Mr. Cortes-Gomez contends that the officer at the scene never saw Mr. Cortes-Gomez take possession of the drugs, and that while he saw Mr. Cortes-Gomez talking to the driver, they may not have been talking about the drugs. Id. Indeed, Mr. Cortes-Gomez contends that Ms. Garcia, and not Mr. Cortes-Gomez, asked the driver about the drugs, and that the officer's texts to Ms. Sanders never referenced Mr. Cortes-Gomez when he pretended to be Ms. Garcia. Id. at 3. Finally, Mr. Cortes-Gomez emphasizes that the yellow notebook with the ledger was in Ms. Garcia's bag, and not in Mr. Cortes-Gomez's possession, and Mr. Cortes-Gomez was never seen with methamphetamine-or large amounts of cash-on his person or in his control. Id.

         A Rule 29 Motion requires the court to “determine whether [the] evidence, if believed, would establish each element of the crime.” Vallo, 238 F.3d at 1247 (quoting Evans, 42 F.3d at 589). And here, a reasonable jury could reach the verdict that it did on Count 1. The government presented testimony from four of Mr. Cortes-Gomez's co-conspirators, all who testified about different times that Mr. Cortes-Gomez had facilitated methamphetamine transactions. And, the transactions they described exceeded that of a buyer-seller relationship. Specifically, Mr. Ross and Mr. Worthington described transactions involving quantities capable of supporting a conclusion that Mr. Cortes-Gomez and his co-conspirators agreed to distribute the drug to make a profit. This evidence, if believed, supports that Mr. Cortes-Gomez was part of an agreement, that he knew the essential objectives of the agreement, that he agreed to participate knowingly and voluntarily, and that his actions were necessary to establish the goal of the conspiracy.

         Mr. Cortes-Gomez urges the court to consider other evidence that, if believed, could cast some doubt on whether Mr. Cortes-Gomez was a fully knowing and voluntary member of the conspiracy. And, as discussed above, the “evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt.” Magleby, 241 F.3d at 1311-12 (citation and internal quotation marks omitted). The evidence the government presented at trial sufficiently supports the verdict so that a reasonable jury could find Mr. Cortes-Gomez guilty of Count 1 beyond a reasonable doubt. The jury so concluded here, and the court must give “considerable deference to the jury's verdict.” Dewberry, 790 F.3d at 1028. The court thus denies defendant's Motion for Judgment of Acquittal on Count 1.

         b. Count 2: Attempted Possession with Intent to Distribute

         Count 2 charges Mr. Cortes-Gomez with attempted possession with intent to distribute 500 grams or more of a substance containing methamphetamine. A conviction on Count 2 requires the government to prove each of the following beyond a reasonable doubt: (1) Mr. Cortes-Gomez knowingly or intentionally possessed or attempted to possess a controlled substance as charged; (2) the substance was methamphetamine; (3) Mr. Cortes-Gomez possessed or attempted to possess the substance with the intent to distribute it; and (4) the amount of the controlled substance he possessed, or attempted to possess, was at least 500 grams or more ...


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