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United States v. Gomez-Encarnacion

United States Court of Appeals, First Circuit

March 20, 2018

UNITED STATES OF AMERICA, Appellee,
v.
SANTOS GOMEZ-ENCARNACIÓN, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge]

          Elaine Pourinski on brief for appellant.

          Thomas F. Klumper, Assistant United States Attorney, Acting Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.

          Before Lynch, Circuit Judge, Souter, Associate Justice, [*] and Kayatta, Circuit Judge.

          KAYATTA, Circuit Judge.

         In 2014, Defendant Santos Gómez-Encarnación was charged with both money laundering and conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1956. Tried, convicted on both counts, and sentenced to fifty-one months in prison, he now appeals both his conviction and his sentence. For the following reasons, we affirm.

         I.

         In 2014, the Drug Enforcement Administration ("DEA") began an investigation into potential bulk cash smuggling by Juan Polanco-Ventura ("Polanco"). On April 28, 2014, the DEA intercepted a call between Polanco and a co-conspirator, Daniel Pilier, during which Polanco told Pilier that he was going to Pilier's friend's house and Pilier told Polanco to pick up the money. Shortly thereafter, Polanco called the defendant, Santos Gómez-Encarnación, and asked if he could come by. An agent observed Polanco go to Gómez-Encarnación's residence, where Polanco received something through his car window from a person later identified by the agent as co-defendant Pedro Trinidad-Marine ("Trinidad"). Contemporaneously, Polanco called Pilier and informed him that he had picked up the money and would wire him some. Polanco was seen shortly thereafter near a money transfer business, holding a piece of paper similar to a receipt.

         The next month, agents intercepted several calls between Polanco and an associate outside the United States during which the callers discussed the smuggling of currency to fund drug shipments. The month after that, agents began surveilling Gómez-Encarnación's residence, and on June 12, observed Trinidad pick up Gómez-Encarnación at his home. On June 26, after receiving intelligence that co-defendant Henry Carmona Reyes ("Carmona") was coming to San Juan, agents established surveillance on Carmona and observed him and Trinidad drive (with a few stops) to Gómez-Encarnación's residence, where agents observed the three men talking.

         Agents also intercepted several phone calls between Pilier and Gómez-Encarnación. On one call, Pilier told Gómez-Encarnación that he needed "pigeon peas, " which, an agent testified, was a code phrase referring to drugs. Subsequent calls used additional coded language referring to drug pricing. The conversations also revealed that Gómez-Encarnación had changed phone numbers, which, an agent would later testify at trial, is typical in a drug trafficking operation.

         On August 28, DEA agents arrested Gómez-Encarnación at his residence. Gómez-Encarnación told agents about some currency in a dresser, but denied the presence of firearms or drugs. A search of the residence recovered marijuana, ketamine, approximately $65, 000 cash, and weapons including a Glock 21 pistol that had been modified so as to be capable of firing in fully automatic mode.

         In October 2014, Gómez-Encarnación was indicted for conspiring to conduct financial transactions involving the proceeds of specified unlawful activity, described in the indictment as "the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in controlled substances." The indictment also charged the underlying substantive crime of money laundering.

         Gómez-Encarnación elected to go to trial. At trial, agents testified as to the facts described above and the wiretaps were introduced as evidence. Crucially, Polanco testified against Gómez-Encarnación, stating that Polanco had made arrangements to pick up $40, 000 from Gómez-Encarnación, that Gómez-Encarnación "gave" it to him outside Gómez-Encarnación's residence, and that the money was derived from drug proceeds. Gómez-Encarnación was convicted by a jury of both money laundering and conspiracy to launder money. The district court denied his motion for acquittal under Federal Rule of Criminal Procedure 29.

         At sentencing, the court imposed a six-level enhancement under U.S.S.G. § 2S1.1(b)(1) after finding that Gómez-Encarnación knew that the crime involved drug trafficking proceeds. In addition, the district court denied Gómez-Encarnación's request for a reduction under U.S.S.G. § 3B1.2(a) or (b) for having only a minor or minimal role in the offense. The district ...


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