United States v. Gomez, No. 19-50313 (9th Cir. 2021)
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The Ninth Circuit affirmed defendant's convictions and sentence for conspiracy with intent to distribute at least 50 grams of methamphetamine, distribution of methamphetamine, and being a felon in possession of a firearm.
The panel held that the district court did not err by allowing the government to rebut defendant's entrapment defense in its case in chief, or by allowing the government to introduce evidence of his affiliation with gangs to rebut that defense. Furthermore, any error in allowing defendant's parole officer to testify was harmless. Finally, the panel concluded that the district court did not err by applying a two-level sentence enhancement under USSG 2D1.1(b)(1) for possession of a firearm during a drug-trafficking offense.
Court Description: Criminal Law. The panel affirmed Julio Cesar Gomez’s convictions and sentence for conspiracy with intent to distribute at least 50 grams of methamphetamine, distribution of methamphetamine, and being a felon in possession of a firearm. The panel held that because Gomez clearly indicated that he would present an entrapment defense at trial, the district court did not err by allowing the government to preemptively rebut that defense by presenting predisposition evidence in its case in chief. The panel held that the district court did not abuse its discretion in allowing the government to present gang- affiliation evidence. The panel explained that the evidence presented by the government, which showed Gomez’s predisposition to commit drug offenses and to possess and use firearms, was permissible under Fed. R. Evid. 405(a) as evidence about Gomez’s reputation and character. The panel noted that the gang-affiliation witnesses did not identify any specific prior crimes or bad acts of Gomez to show that Gomez had a propensity to commit similar bad acts. The panel rejected Gomez’s argument that the evidence was unfairly prejudicial. UNITED STATES V. GOMEZ 3 Assuming without deciding that the district court erred by allowing Gomez’s parole officer to testify that Gomez had been convicted of a carjacking offense, the panel held that any error was harmless because the evidence against Gomez was overwhelming. The panel held that the district court did not clearly err in applying a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during a drug- trafficking offense, where the sale of the firearm and methamphetamine were bundled together. Dissenting, District Judge Steele wrote that the trial court committed reversible error by allowing the government to present evidence to the jury in its case-in-chief to “rebut” an anticipated entrapment defense which was never presented by the defendant. He wrote that given the overwhelmingly prejudicial nature of the evidence, the harmless error doctrine cannot save the government’s convictions, and he would therefore reverse the convictions and remand for a new trial.
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