United States District Court, D. Kansas
AMENDED MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
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.
Factual and Procedural Background
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
December 17, 2015, the cooperating driver set up the meeting
to drop off a spare tire to two recipients in a
McDonald's parking lot. Officers later identified the two
recipients as Mr. Cortes-Gomez and Juanita Garcia. Before the
driver arrived at the McDonald's, law enforcement
instructed the driver to move the delivery to a nearby
Walmart. Mr. Cortes-Gomez and Ms. Garcia-traveling in an SUV
and a car, respectively-placed the car in the McDonald's
parking lot as compensation for the methamphetamine. They
then traveled to Walmart together in the SUV. The driver
brought the tire to Walmart 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
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.
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.
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
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.
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.
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
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.
Motion for Judgment of Acquittal
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
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).
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
Sufficiency of Evidence
Count 1: Conspiracy to Possess with Intent to
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 Fed.Appx. 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
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
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.
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.
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
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.
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.
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.
Count 2: Attempted Possession with Intent to
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 ...