USA v. Zarate-Suarez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Criminal Case No. 18-cr-00266-PAB-4
UNITED STATES OF AMERICA,
Plaintiff,
v.
4. OMAR HUMBERTO GONZALEZ-HERNANDEZ,
Defendant.
ORDER
This matter comes before the Court on Defendant Omar Humberto Gonzalez-
Hernandez’s Motion for New Trial [Docket No. 293], wherein defendant requests a post-
verdict judgment of acquittal under Fed. R. Crim. P. 29 or, in the alternative, a new trial
under Fed. R. Crim. P. 33.
I. BACKGROUND
On July 10, 2018, defendant was indicted for conspiring to possess with intent to
distribute methamphetamine in violation of 21 U.S.C. §§ 841(a) and 846. Docket No.
52. The second superseding indictment, filed on September 13, 2018, alleges in
relevant part:
[f]rom on or about October 15, 2016, through on or about May 12, 2018,
within the District of Colorado and elsewhere, the defendants [Joanna
Zarate-Suarez, Edwin Roman-Acevedo, Christina Fitzgerald, Omar
Humberto Gonzalez-Hernandez, Jeremiah Serr] and others both known
and unknown to the Grand Jury, did knowingly and intentionally conspire
to distribute and to possess with intent to distribute a quantity of a
Controlled Substance, namely more than 500 grams of a mixture and
substance containing a detectable amount of Methamphetamine and
Case No. 1:18-cr-00266-PAB Document 323 filed 04/30/19 USDC Colorado pg 1
of 9

more than 50 grams of Methamphetamine, and did so with
interdependence.
Docket No. 101 at 1-2. Defendant was tried with one of his alleged coconspirators,
Jeremiah Serr, in February 2019. Docket No. 260. On March 5, 2019, the jury found
defendant guilty of conspiring to distribute or to possess with the intent to distribute 50
grams or more of actual methamphetamine or 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine. Docket No. 274 at 1-
2. On April 2, 2019, defendant moved for a post-verdict judgment of acquittal or, in the
alternative, for a new trial. Docket No. 293. The government filed a response to the
motion on April 16, 2019. Docket No. 301.
II. ANALYSIS
A. Motion for Judgment of Acquittal
The Court turns first to defendant’s motion for judgment of acquittal. In
considering a motion for judgment of acquittal under Fed. R. Crim. P. 29, a court views
the evidence “in the light most favorable to the government, and without weighing
conflicting evidence or considering the credibility of witnesses, determine[s] whether
that evidence, if believed, would establish each element of the crime.” United States v.
Fuller, 751 F.3d 1150, 1153 (10th Cir. 2014) (quotations omitted). A court may enter a
judgment of acquittal “only if the evidence that defendant committed the crime is
nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable
doubt.” Id. (quotations omitted).
Defendant contends that the Court should grant his motion for judgment of
acquittal because the evidence presented at trial was insufficient to support his
2
Case No. 1:18-cr-00266-PAB Document 323 filed 04/30/19 USDC Colorado pg 2
of 9

conspiracy conviction. Defendant advances two principal arguments in support of this
conclusion: (1) defendant’s mere association with the other alleged coconspirators and
acquiescence in the object of the conspiracy is not sufficient to support his conviction;
and (2) even if defendant was involved in the May 2018 drug transaction, that
transaction was separate and distinct from the conspiracies occurring in October 2016
and November 2016. Docket No. 293 at 4-9. Both of these arguments are unavailing.
Regarding the first argument, defendant mischaracterizes the evidence
presented at trial. Contrary to defendant’s assertion that there was no evidence
showing his direct involvement in any aspect of the alleged drug conspiracy, see Docket
No. 293 at 5 (stating that Ms. Fitzgerald “testified she had never had any direct dealings
in the drug trade with the defendant” and that there was no evidence that defendant
“did anything other than sit silently by during the conversations regarding drugs”), Ms.
Fitzgerald testified to defendant’s active participation in at least two transactions related
to the conspiracy.1 The first occurred in November 2016, when S.M., the girlfriend of
Ms. Fitzgerald’s Virginia buyer, flew to Colorado with Ms. Fitzgerald to pick up four
pounds of methamphetamine. Ms. Fitzgerald testified that defendant and Ms. Zarate-
Suarez picked her and S.M. up from the airport, after which Ms. Fitzgerald, Ms. Zarate-
Suarez, and defendant formulated a plan to rob S.M. of the money that she had
brought with her to purchase the drugs. Although Ms. Fitzgerald testified that defendant
was “more so just listening to the conversation” about the robbery and “taking orders
1A more detailed summary of the evidence pertaining to the conspiracy can be
found in the Court’s order on defendant Serr’s motion for a new trial. See Docket No.
322.
3
Case No. 1:18-cr-00266-PAB Document 323 filed 04/30/19 USDC Colorado pg 3
of 9

from [Ms. Zarate-Suarez],” the jury could have reasonably inferred that defendant was
more than a passive participant in the transaction, especially in light of Ms. Fitzgerald’s
later testimony that defendant drove to pick her up with his headlights off after she
committed the robbery.
According to Ms. Fitzgerald’s testimony, defendant was also instrumental in the
May 2018 drug transaction. Ms. Fitzgerald testified that she returned to Denver on May
7, 2018 to obtain six pounds of methamphetamine for the Virginia buyer. She testified
that she went out to lunch with defendant and Ms. Zarate-Suarez on May 8, 2018,
during which they discussed the prices of the drugs and their plans for completing the
sale. Ms. Fitzgerald testified that defendant and Ms. Zarate-Suarez conversed in
Spanish, which Ms. Fitzgerald could understand, during the lunch and that defendant
expressed opinions on how much to charge for the drugs, whether to front the drugs to
the Virginia buyer, and where the sale would take place. Finally, Ms. Fitzgerald testified
that they scheduled the drug sale for the evening of May 9, 2018 because defendant
was going to pick up the methamphetamine after he got off work. Defendant then
accompanied Ms. Fitzgerald and Ms. Zarate-Suarez to Burlington, Colorado, where
they were planning to meet Ms. Fitzgerald’s Virginia buyer to complete the transaction.
To convict defendant of the conspiracy charge, the government was required to
prove: “(1) an agreement by two or more persons to violate the law; (2) knowledge of
the objectives of the conspiracy; (3) knowing and voluntary involvement in the
conspiracy; and (4) interdependence among co-conspirators.” United States v. Foy,
641 F.3d 455, 465 (10th Cir. 2011). W hile defendant is correct that “[o]ne does not
4
Case No. 1:18-cr-00266-PAB Document 323 filed 04/30/19 USDC Colorado pg 4
of 9

become a member of a conspiracy merely by associating with conspirators known to be
involved in crime,” United States v. Hamilton, 587 F.3d 1199, 1207 (10th Cir. 2009)
(internal quotation marks and brackets omitted); see also Docket No. 293 at 7 (stating
that “[a]ssociation with conspirators is insufficient to sustain a conviction for
conspiracy”), “[e]ven a single overt act by [a] defendant can be sufficient to connect him
to the conspiracy if that act leads to a reasonable inference of intent to participate in an
unlawful agreement or criminal enterprise.” Hamilton, 587 F.3d at 1207 (internal
quotation marks omitted). Here, the evidence showed that defendant engaged in
multiple acts which, viewed in a light most favorable to the government, support a
reasonable inference that he knowingly and voluntarily participated in a conspiracy to
distribute methamphetamine. The mere fact that defendant’s participation never
included the actual sale of methamphetamine is immaterial. See Hamilton, 587 F.3d at
1210 (stating that it was “irrelevant to the question of [the defendant’s] participation in
[the] drug organization that [his activities] did not directly pertain to the distribution of
drugs, but rather the collection on drug debts”); United States v. Smith, 26 F.3d 739,
744 (7th Cir. 1994) (“Joining a distribution conspiracy does not require an agreement to
distribute personally.”). The critical question is whether defendant “shared a common
purpose” with the other alleged coconspirators and acted in furtherance of the
conspiracy’s objectives. Hamilton, 587 F.3d at 1208-09 (stating that the requirement of
interdependence is satisfied if “the alleged coconspirators were united in a common
unlawful goal or purpose and if a defendant’s activities facilitated the endeavors of
another alleged coconspirator or facilitated the venture as a whole” (emphasis and
5
Case No. 1:18-cr-00266-PAB Document 323 filed 04/30/19 USDC Colorado pg 5
of 9

internal quotation marks omitted)). The Court finds that the government’s evidence was
sufficient to make this showing.
Defendant also contends that the evidence established the existence of multiple
conspiracies rather than the single conspiracy alleged in the indictment. To the extent
defendant is claiming that there was a variance between the conspiracy charged in the
indictment and the evidence adduced at trial, this argument fails. The fact that Ms.
Fitzgerald’s incarceration between December 2016 and January 2018 temporarily
halted operations does not, without more, establish that the May 2018 transaction was
“separate and distinct from the other two conspiracies occurring in October 2016 and
November 2016.” Docket No. 293 at 7; see United States v. Alcorta, 853 F.3d 1123,
1139 (10th Cir. 2017) (stating that a coconspirator’s arrest does not automatically
terminate a conspiracy or result in the coconspirator’s withdrawal from the conspiracy);
United States v. Caldwell, 589 F.3d 1323, 1330-31 (10th Cir. 2009) (stating that “a
lapse in time does not necessarily convert a single conspiracy into multiple
conspiracies,” but that “time in combination with other factors” may be sufficient
(emphasis added)); United States v. Williamson, 53 F.3d 1500, 1514 (10th Cir. 1995)
(finding that seven-month hiatus did not sever the single conspiracy alleged in the
indictment into two separate conspiracies, where “operations resumed with the same
participants, the same conspiratorial objective and the same course of conduct”).2
2The jury was also free to disregard Ms. Fitzgerald’s testimony that there was no
ongoing agreement related to the distribution of drugs, especially given Ms. Fitzgerald’s
statement that, at the time she went to prison in December 2016, she still owed Ms.
Zarate-Suarez money for the methamphetamine that had been dissolved in a container
of water in November 2016.
6
Case No. 1:18-cr-00266-PAB Document 323 filed 04/30/19 USDC Colorado pg 6
of 9

Moreover, even assuming the evidence did support the existence of multiple
conspiracies, defendant has made no effort to show that the variance was prejudicial.
See United States v. Sells, 477 F.3d 1226, 1237 (10th Cir. 2007) (“The defendant bears
the burden of proof both to show that a variance occurred and that it was fatal.”).
As defendant acknowledges in his motion, the jury was properly instructed that
“[p]roof of several separate conspiracies is not proof of the single, overall conspiracy
charged in the indictment,” and that “proof that a defendant was a member of some . . .
conspiracy [not charged in the indictment] is not enough to convict.” Docket No. 271 at
22. Based on the evidence presented at trial, the Court finds no reason to believe that
the jury disregarded these instructions. Accordingly, the Court will not disturb the jury’s
determination that defendant was a member of the single conspiracy charged in the
indictment.3
B. Motion for New Trial
Defendant requests, in the alternative, that the Court grant his request for a new
trial under Fed. R. Crim. P. 33 because the government’s case was predicated entirely
on the uncorroborated testimony of Christina Fitzgerald. Docket No. 293 at 9.
Fed. R. Crim. P. 33(a) provides that, “[u]pon the defendant’s motion, the court
may vacate any judgment and grant a new trial if the interest of justice so requires.”
“Although a trial court is afforded discretion in ruling on such a motion, and is free to
3The Court also will not grant defendant’s motion for judgment of acquittal merely
because much of the government’s case rested on the testimony of Ms. Fitzgerald.
See United States v. Dewberry, 790 F.3d 1022, 1029 (10th Cir. 2015) (stating that the
court would not “reverse a conviction merely because the verdict was grounded on the
uncorroborated testimony of a coconspirator”).
7
Case No. 1:18-cr-00266-PAB Document 323 filed 04/30/19 USDC Colorado pg 7
of 9

weigh the evidence and assess witness credibility, a motion for new trial is regarded
with disfavor and should only be granted with great caution.” United States v.
Quintanilla, 193 F.3d 1139, 1146 (10th Cir. 1999). T hus, the power to grant a new trial
on the ground that the jury’s verdict is contrary to the weight of the evidence “should be
invoked only in exceptional cases in which the evidence preponderates heavily against
the verdict.” United States v. Evans, 42 F.3d 586, 593 (10th Cir. 1994) (internal
quotation marks omitted).4
That standard has not been in this case. Def endant argues that Ms. Fitzgerald’s
testimony was “unbelievable on its face” because it was both uncorroborated and
shaped by her “desire to save herself.” Docket No. 293 at 9-10. However, Ms.
Fitzgerald’s testimony was largely consistent with the statement she made at the time of
her arrest. See generally Exhibit 33 (May 10, 2018 interview with Christina Fitzgerald).
There was also independent evidence presented at trial that supported aspects of her
testimony, including testimony by law enforcement agents placing defendant at
4In Dewberry, the Tenth Circuit indicated that “[s]ufficiency-of-the-evidence
challenges made in a Rule 29 or Rule 33 motion are adjudicated and reviewed under
the same standard.” 790 F.3d at 1028. This statement appears to conflict with Tenth
Circuit precedent establishing that a district court may weigh the evidence and assess
credibility on a motion for a new trial under Rule 33. See Quintanilla, 193 F.3d at 1146;
Evans, 42 F.3d at 593-94; see also United States v. Cesareo-Ayala, 576 F.3d 1120,
1126 (10th Cir. 2009) (noting that a district court “may order a new trial when it
perceives that the jury improperly weighed some of th[e] evidence,” but that “courts of
appeals routinely affirm the denial of . . . new-trial motions [based on the weight of the
evidence] once they have upheld the sufficiency of the evidence”); 3 Charles Alan
Wright et al., Federal Practice and Procedure § 582 (4th ed.) (updated Apr. 2019)
(noting that a motion for a new trial asserting that the verdict was against the weight of
the evidence is governed by a different legal standard than a motion for judgment of
acquittal under Rule 29). However, even under the more favorable standard, defendant
has failed to show that the weight of the evidence goes against the jury’s verdict.
8
Case No. 1:18-cr-00266-PAB Document 323 filed 04/30/19 USDC Colorado pg 8
of 9

Santiago’s restaurant with Ms. Zarate-Suarez and Ms. Fitzgerald on May 8, 2018, cell
phone location data showing that defendant accompanied Ms. Fitzgerald and Ms.
Zarate-Suarez to Burlington, Colorado on May 9, 2018, Exhibit 154 at 8; Exhibit 155 at
1-2, and text messages indicating that defendant was upset by their failure to complete
the drug sale on that date. See Exhibit 139 at 39 (text message from “Gorda” stating
that “Negro was kinda tripping”). The mere fact that Ms. Fitzgerald stood to benefit from
her cooperation with the government is not a sufficient basis, standing alone, to find her
testimony incredible. See Dewberry, 790 F.3d at 1029 (noting that witnesses are
frequently offered plea deals in criminal prosecutions and that this fact “does not
necessarily render testimony incredible”).
For the foregoing reasons, the Court is unable to conclude that this is one of the
“exceptional cases” in which the “evidence preponderates heavily against the verdict.”
Evans, 42 F.3d at 593 (internal quotation marks omitted). Accordingly, defendant’s
motion for a new trial will be denied.
III. CONCLUSION
Wherefore, it is
ORDERED that Defendant Omar Humberto Gonzalez-Hernandez’s Motion for
New Trial [Docket No. 293] is DENIED.
DATED April 30, 2019.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
Chief United States District Judge
9
Case No. 1:18-cr-00266-PAB Document 323 filed 04/30/19 USDC Colorado pg 9
of 9