US v. Gonzalez

Filing 920100730

Opinion

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var WPFootnote1 = '                   The Hon. David H. Souter, Associate Justice (Ret.) of the\
Supreme Court of the United States, sitting by designation.\
'

var WPFootnote2 = '                   The Browns were separately charged with and convicted of\
obstruction of justice, conspiracy, and several related offenses\
arising from their refusal to surrender. Their appeal is pending. \
'

var WPFootnote3 = '                   Randy Weaver, whose 1992 standoff with federal\
authorities at Ruby Ridge resulted in multiple deaths, see Idaho\
v. Horiuchi, 215 F.3d 986, 988-91 (9th Cir. 2000), vacated as moot\
by Idaho v. Horiuchi, 266 F.3d 979 (9th Cir. 2001), eventually\
joined the Browns on their property for some portion of the\
standoff.\
'

var WPFootnote4 = '                   Indeed, we have, in a different context, defined\
"prevent" more broadly than we do here. See Wood v. Spencer, 487\
F.3d 1, 7 (1st Cir. 2007).\
'

var WPFootnote5 = '                   Section 372 has been amended twice to expand the scope of\
its jurisdiction: once in 1909 to include "District[s]" and again\
in 1948 to include "Possession[s]." H.R. Rep. No. 80-304 (1948),\
reprinted in 1948 U.S.C.C.A.N. 2477. It was also amended in 2002\
to remove a $5,000 cap on fines for violations of the statute,\
Criminal Law Technical Amendments Act of 2002, Pub. L. No. 107-273,\
§ 4002(d)(1)(D), 116 Stat. 1759, 1861 (2002).\
'

var WPFootnote6 = '                   The pertinent House Report explains that special\
conspiracy statutes were retained "(1) where the conspiracy would\
constitute the only offense, or (2) where the punishment provided\
in this section would not be commensurate with the gravity of the\
offense." H.R. Rep. No. 80-304 (1947), reprinted in 1948\
U.S.C.C.A.N. 2475, 2476.\
'

var WPFootnote7 = '                   It is unclear if they are arguing that the indictment was\
defective because it did not supply citations to the U.S. Code. If\
so, defendants\' argument turns on its head the usual rule that\
statutory citations cannot normally supply a missing element in an\
indictment. See United States v. McLennan, 672 F.2d 239, 243 (1st\
Cir. 1982).\
'

var WPFootnote8 = '                   We need not address the entirely different situation of\
a defendant\'s assistance to an offender in the period preceding\
conviction. Those circumstances could raise questions regarding\
the adequacy of notice to a defendant of what underlying offense \
the defendant was supposedly an accessory to. In that situation,\
the defendant could argue he must have fair notice of the elements\
of the underlying offense he allegedly aided to be sure he has the\
requisite knowledge. See, e.g., United States v. Graves, 143 F.3d\
1185, 1190 (9th Cir. 1998).\
'

var WPFootnote9 = '                   If Gerhard and Gonzalez intended to raise an additional\
argument under Apprendi v. New Jersey, 530 U.S. 466 (2000), their\
claim "lacks sufficient developed argumentation and is therefore\
waived." United States v. Gonzalez-Melendez, 594 F.3d 28, 34 (1st\
Cir. 2010).\
'

var WPFootnote10 = '                   Defendants, who were not themselves convicted of tax\
evasion, seem to have modeled their argument on "the hackneyed tax\
protester refrain that federal criminal jurisdiction only extends\
to the District of Columbia, United States territorial possessions\
and ceded territories." United States v. Collins, 920 F.2d 619,\
629 (10th Cir. 1990) (collecting cases). Those arguments have been\
sanctioned as frivolous, e.g., id. at 623, 633-34, and are no less\
so when made in the context of this case.\
'

var WPFootnote11 = '                   To the extent that Riley claims he did not ask for\
counsel to be appointed at his first appearance, the record flatly\
contradicts his assertion. Riley also makes a separate complaint,\
which we discuss later, that his first appointed counsel provided\
ineffective assistance.\
'

var WPFootnote12 = '                   There was no abuse of discretion in the district court\'s\
denial of a continuance of the trial date to Riley\'s counsel, who\
had been involved in the case for almost six months. Riley has\
failed to "identify specific ways in which the court\'s\
[purportedly] erroneous denial of a continuance prejudiced his . .\
. defense." United States v. Rodriguez-Marrero, 390 F.3d 1, 22 &\
n.10 (1st Cir. 2004).\
'

var WPFootnote13 = '                   The court instructed the jury that it could find\
defendants guilty if the government carried its burden as to either\
object of the conspiracy. The pertinent part of the instructions\
stated that the jury could only render a guilty verdict if it found\
that a defendant joined in an agreement "to either (A) assault,\
resist, or impede officers of the United States in the discharge of\
their duties, or (B) receive, relieve comfort or assist Edward and\
Elaine Brown in order to hinder and prevent their apprehension,\
trial and punishment." The verdict form required the jury to\
indicate whether it found each defendant guilty "of conspiracy to\
hinder or prevent the U.S. Marshals in attempting to arrest Edward\
and Elaine Brown." No party objected to the form of the verdict. \
'

var WPFootnote14 = '                   For the same reason, we reject Gonzalez\'s related\
challenge to his sentence, anchored in his erroneous assertion that\
he was wrongly sentenced on both objects of the Count 2 conspiracy,\
though the jury\'s "special verdict" only found him guilty of one. \
'

var WPFootnote15 = '                   Once again, there is no need for us to address the\
unrelated situation of a defendant charged with assisting an\
offender before that offender\'s conviction. Cf. Graves, 143 F.3d\
at 1190.\
'

var WPFootnote16 = '                   When more than one underlying offense is at issue, courts\
should use the most serious offense to calculate a defendant\'s\
guidelines range. U.S.S.G. § 1B1.5 comment. (n.3).\
'

var WPFootnote17 = '                   When calculating a defendant\'s guidelines range,\
conviction of a conspiracy to commit more than one offense is\
treated "as if the defendant had been convicted on a separate count\
of conspiracy for each offense that the defendant conspired to\
commit." U.S.S.G. § 1B1.2(d). As a result, the district court\
considered Counts 2A and 2B separately.\
'

var WPFootnote18 = '                   Gerhard\'s guidelines sentence on Count 4, 18 U.S.C.\
§ 924(c) (possession of a firearm in furtherance of a crime of\
violence) was the mandatory-minimum sentence required by statute to\
be imposed separately and consecutively to the other counts. \
U.S.S.G. § 2K2.4(b). Gerhard does not object to the district\
court\'s calculation for Count 4.\
'

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