United States Court of Appeals For the First Circuit

No. 15-2345

UNITED STATES OF AMERICA,

Appellee,

v.

SANTOS GÓMEZ-ENCARNACIÓN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Lynch, Circuit Judge, Souter, Associate Justice,* and Kayatta, Circuit 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.

March 20, 2018

* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. KAYATTA, Circuit Judge. In 2014, Defendant Santos

Gómez-Encarnación was charged with both money laundering and

conspiracy to commit money laundering in violation of

. 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

- 2 - 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.

- 3 - 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 court imposed

- 4 - a fifty-one month sentence. Gómez-Encarnación now appeals his

conviction and sentence.

II.

Gómez-Encarnación contends that the district court erred

in: (1) denying his motion for acquittal on the basis that the

evidence was insufficient to support a conviction, (2) imposing a

six-level enhancement for the money laundering having involved the

proceeds of drug trafficking, and (3) denying him a reduction based

on his having a "minor or minimal" role in the offense. We take

each contention in turn.

A.

We review the denial of a Rule 29 motion for acquittal

de novo. United States v. Acevedo,

(1st Cir.

2018). Under such a review, "we must affirm unless the evidence,

viewed in the light most favorable to the government, could not

have persuaded any trier of fact of the defendant's guilt beyond

a reasonable doubt."

Gómez-Encarnación's primary argument is that Polanco's

claim that Gómez-Encarnación "gave" him the money rendered the

gist of Polanco's testimony necessarily unreliable because the

agent who observed the pick-up testified that Trinidad, not Gómez-

Encarnación, was the one who physically went to Polanco's car to

deliver the money. We do not see that potential inconsistency as

sufficient to vacate the conviction. The wiretap, the

- 5 - surveillance, and the agents' testimony directly corroborated

Polanco's claim that he arranged to get the cash from Gómez-

Encarnación at the place where Gómez-Encarnación resided. While

Polanco's testimony that Gómez-Encarnación "gave" him the money,

coupled with the agent's testimony that Trinidad physically

delivered it to the car, invited fair argument that Polanco was

not credible, such an argument fell far short of being so

compelling that no reasonable jury could rely on Polanco's

testimony in finding Gómez-Encarnación guilty beyond a reasonable

doubt. There are many ways to "give" money to someone, including

having an associate carry the cash from one's home to an individual

whom one knows is waiting outside for the cash. The important

point on which the agent and Polanco agreed was that Polanco

received something outside Gómez-Encarnación's residence after the

phone calls arranging the pick-up and before Polanco proceeded to

the money transfer business.

Gómez-Encarnación's second argument in support of his

challenge to the sufficiency of the evidence -- that no agent

observed him do anything illegal -- carries even less force. There

is simply no requirement that a government agent witness the

charged criminal act.

Finally, Gómez-Encarnación's claim that it could not be

known with any certainty that it was his voice on the wiretaps is

simply a veiled request to view the evidence in his favor, rather

- 6 - than in favor of the government as we are required to do at this

stage. A government agent who interviewed Gómez-Encarnación for

an hour after his arrest listened to the phone calls and identified

Gómez-Encarnación's voice on the recordings. Testimony to that

effect was enough to permit a jury to find that the voice belonged

to Gómez-Encarnación.

In sum, with the wiretaps, the agents' observations, the

items seized after Gómez-Encarnación's arrest, and the testimony

of Polanco, there was sufficient evidence for a conviction, so we

will not disturb the jury's verdict.

B.

Gómez-Encarnación also contests the application of a

six-level enhancement pursuant to U.S.S.G. § 2S1.1(b)(1), which

applies where "the defendant knew or believed that any of the

laundered funds were the proceeds of, or were intended to promote

. . . an offense involving the manufacture, importation, or

distribution of a controlled substance." For a sentencing

enhancement to apply, the district court must find it supported by

a preponderance of the evidence. United States v. Lacouture,

, 189–90 (1st Cir. 2016). We review factual findings of

a sentencing court for clear error, and will not reverse absent "a

strong, unyielding belief that a mistake has been made." United

States v. Torres-Velazquez,

(1st Cir. 2007).

- 7 - Gómez-Encarnación was caught on wiretaps using drug-

related code language. An agent also testified that Gómez-

Encarnación's changing of cell phones was consistent with the

habits of drug traffickers. Furthermore, though the district court

sustained objections when Polanco testified that Gómez-Encarnación

was in the drug business, it admitted Polanco's testimony that

Polanco and several other co-conspirators were knowingly involved

in drug trafficking. From this testimony, a factfinder might infer

that another member of the conspiracy, Gómez-Encarnación, also

knew that the money laundering involved drug proceeds. Considering

cumulatively the testimony described above, we see no clear error

in the application of this enhancement.

C.

Finally, Gómez-Encarnación contends that the district

court should have granted him a two- or four-level reduction for

having a minor or minimal role in the offense, pursuant to U.S.S.G

§ 3B1.2(a) or (b). To qualify for this reduction, "the defendant

must satisfy a two-pronged test. First, he must demonstrate that

he is less culpable than most of those involved in the offense of

conviction. Second, he must establish that he is less culpable

than most of those who have perpetrated similar crimes." United

States v. Mateo-Espejo,

(1st Cir. 2005) (internal

citations omitted). Similar to the enhancement discussed supra,

the preponderance of the evidence standard governs the court's

- 8 - determination of whether a reduction is merited; however, the

burden to establish the appropriateness of such a reduction falls

on the defendant. See United States v. Cortez-Vergara,

(1st Cir. 2017). A district court's factual findings as

to a defendant's role in the offense are reviewed for clear error.

See United States v. Melendez-Rivera,

, 28–29 (1st Cir.

2015).

Gómez-Encarnación cannot overcome the clear error

hurdle. As the government correctly points out, Gómez-Encarnación

stored cash at his residence and used it as a pick-up point. One

hundred and five thousand dollars -- the sum of the money given to

Polanco and found at Gómez-Encarnación's residence -- is enough to

suggest that Gómez-Encarnación was well-trusted by the

conspirators with responsibility not easily granted to a minor

player in the conspiracy. And he discussed cash transfers and

drug supply over the phone with co-conspirators. On this record,

we cannot say that the district court clearly erred in denying his

request for a minor or minimal participant reduction.

III.

The evidence in this case was sufficient to support the

conviction, the sentencing enhancement, and the denial of the minor

or minimal role reduction. We therefore affirm.

- 9 -