418 F.

3d 90

UNITED STATES, Appellee,

v.
Fernando GMEZ-ROSARIO, Appellant, Defendant.
No. 03-2719.

United States Court of Appeals, First Circuit.

Heard May 5, 2005.
Decided August 12, 2005.

COPYRIGHT MATERIAL OMITTED Andrew Nathanson, with whom

Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. was on brief, for
appellant.
Germn A. Reickehoff, Assistant United States Attorney, with whom H.S.
Garcia, United States Attorney, and Nelson Prez-Sosa, Assistant United
States Attorney, were on brief, for appellee.
Before LYNCH, Circuit Judge, BALDOCK,* Senior Circuit Judge, and
LIPEZ, Circuit Judge.
LIPEZ, Circuit Judge.

Following a jury trial, defendant Fernando Gmez-Rosario ("Gmez") was

acquitted of conspiring to import heroin, see 21 U.S.C. 952(a), 963, but
convicted of conspiring to possess heroin, see 21 U.S.C. 841(a)(1), 846. The
district court subsequently sentenced the defendant under the mandatory
guidelines to 121 months in prison and three years of supervised release. On
appeal, Gmez asserts, inter alia, (1) that the district court 1 violated his Sixth
Amendment rights by denying his request to proceed pro se, (2) that the court's
instructions to the jury constructively amended the indictment in violation of
the Fifth Amendment, (3) that there was insufficient evidence to support his
conviction, (4) that the delay between his arrest and the filing of the
superseding indictment violated his constitutional rights, and (5) that he should
be resentenced in light of United States v. Booker. Although the first claim
poses important questions regarding the right of self-representation and the
appointment of standby counsel, we ultimately conclude that Gmez's right to

conduct his own defense was not violated in this case. The second, third and
fourth claims are also without merit. Concluding that Booker error was present
here, however, we remand for resentencing.
I.
2

We turn to the trial record for the following background, presenting the facts in
the light most favorable to the verdict. See Baron v. Suffolk County Sheriff's
Dep't, 402 F.3d 225, 229 (1st Cir.2005).
A. The heroin transaction

On April 21, 2000, customs agents intercepted Eugene Sarruco at the airport in
Carolina, Puerto Rico following his arrival on a flight from Curacao.
Suspecting that Sarruco was a drug courier, the agents took him to the airport's
medical facility where he was arrested after passing five pellets of heroin, each
containing slightly less than eight grams of heroin.

Sarruco told agents that he had ingested eighty-five heroin pellets2 and carried
them to Puerto Rico on behalf of a drug dealer in Curacao named Andrs
Hueck. Upon his arrival in Puerto Rico, Sarruco was under instructions to go to
the Hotel San Jorge or the Hotel Iberia. The buyer whose identity Sarruco
did not know would meet him at the hotel with a bottle of laxatives and pick
up the heroin in exchange for $7,000.

With Sarruco's cooperation, the agents set up a "controlled delivery" of the

heroin pellets. They had Sarruco call Hueck with a message that he was in
Room 209 at the Hotel Iberia. Hueck told Sarruco that someone would be
coming, presumably to pick up the heroin. Agent Luis Carmona, who was
enlisted to act undercover as Sarruco's stand-in, took the five pellets that
Sarruco had expelled to Room 209 of the Hotel Iberia. Agent Carmona put one
of the pellets in a drawer in the night stand and put the other four pellets,
wrapped in toilet paper, in a dresser drawer. Other agents set up audio and
video surveillance of Rooms 209 and 210, as well as surveillance outside the
hotel.

Sometime after 4 p.m. on April 21, 2000, Gmez drove up to the Hotel Iberia in
a green Ford Windstar. He parked the van, leaving two passengers inside, and
went into the hotel. A Datsun parked in front of the van, and its driver also
went inside the hotel. When the Datsun's driver returned, two agents detained
him for questioning until a third agent exited the hotel, yelling that they had the

wrong person and that the man in the room was the driver of the green van.
One of the passengers in the van jumped into the front seat and drove away.
The agents pursued the van to a dead end street, where the van's passengers fled
on foot. Upon searching the van, the agents found a loaded gun in plain view
between the front seats. They also seized a rental agreement listing Fernando
Gmez as an "additional renter."
7

In the meantime, Gmez arrived at Room 209 of the hotel, where Agent
Carmona was waiting pursuant to the instructions that Hueck had given
Sarruco. Carmona, posing as Sarruco, invited Gmez inside and gave him the
four pellets wrapped in toilet paper. When Gmez asked Carmona how many
he had swallowed, he responded eighty-five. Carmona told Gmez that he was
having trouble expelling the remaining pellets. Gmez told him that he needed
a laxative and offered to get him one. Gmez then placed the pellets back in the
dresser drawer. Carmona went into the bathroom, ostensibly because he was
having stomach cramps. Another agent, who had been hiding in the closet, then
came out and arrested Gmez.
B. Legal proceedings
1. First indictment

On May 3, 2000, a grand jury returned a three-count indictment against Gmez

and Sarruco. Count One charged them with aiding and abetting the importation
of approximately 975 grams of heroin into the United States in violation of 21
U.S.C. 952(a) and 963. Count Two charged the defendants with aiding and
abetting the unlawful possession with intent to distribute approximately 975
grams of heroin in violation of 21 U.S.C. 841(a)(1). Count Three charged
Gmez with possessing a firearm in furtherance of a drug crime (specifically,
possession of heroin with intent to distribute) in violation of 18 U.S.C. 924(c)
(1)(A).

Gmez went to trial on February 19, 2003.3 The government presented several
witnesses, including Sarruco and Agent Carmona, and played the audio and
video surveillance tapes of Gmez's interaction with Agent Carmona. Gmez
rested without presenting any evidence. At the close of evidence, he moved for
a judgment of acquittal on all counts. The district court granted the motion as to
Counts Two (possession of heroin with intent to distribute) and Three
(possession of a firearm). With respect to Count Two, the court reasoned that
Gmez did not exercise dominion and control over the drugs when he briefly
inspected them in the hotel room, nor had he aided and abetted Sarruco's

possession of drugs because the two did not have a prior relationship. Because
Count Three alleged possession of a gun in furtherance of the crime of drug
possession, it necessarily turned on Count Two. Count One (importation) went
to the jury, which could not agree on a verdict. The court declared a mistrial
and ordered the case to be reset for trial.
2. Superseding indictment
10

Instead of retrying Gmez on the importation count, the government obtained a

two-count superseding indictment on March 12, 2003. Count One charged
Gmez with conspiring to import into the United States approximately 975
grams of heroin in violation of 21 U.S.C. 952(a) and 963. Count Two
charged Gmez with conspiring to possess with intent to distribute
approximately 975 grams of heroin in violation of 21 U.S.C. 841(a) and 846.

11

The charges in the superseding indictment were tried before a jury in June
2003. The government presented substantially the same evidence that it had
offered during the first trial. The defense presented two witnesses, Gmez and
his mother, neither of whom had testified at the first trial. Gmez testified to an
alternative version of events on the afternoon of his arrest. According to his
testimony, he went to the Hotel Iberia on April 21 to visit a woman named
Bonnie whom he met the previous night while out with friends. He knocked on
the door of Room 209 believing that it was Bonnie's room, and was surprised
when a male (Agent Carmona, posing as Sarruco) emerged from the room. As
soon as Gmez entered the room, the man told him that he was not feeling well
and began to rub his stomach. Gmez asked the man if he was all right. The
man responded that he needed something to help him "evacuate," and Gmez
asked if he meant a laxative. The man then handed Gmez a package (the four
heroin pellets wrapped in toilet paper), which Gmez put down without looking
at its contents.4 After saying that he had been in pain for several hours, the man
excused himself to use the restroom and Gmez was arrested. Gmez's mother
testified regarding her relationship with Gmez and her contact with him in the
week leading up to his arrest.

12

After approximately seven hours of deliberations, the jury found that Gmez
was not guilty as to Count One (conspiracy to import) but guilty as to Count
Two (conspiracy to possess with intent to distribute). In response to a question
on the jury verdict form, the jury decided that the amount of heroin involved
was less than 100 grams.

13

On November 4, 2003, the district court sentenced Gmez to 121 months in

prison, the bottom of the applicable guidelines range, and three years of
supervised release.
II.
A. Request for Self-Representation
14

It is well-settled that the Sixth Amendment encompasses a right to selfrepresentation by criminal defendants. See Faretta v. California, 422 U.S. 806,
814-17, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A criminal defendant has the
right to "conduct his own defense, provided only that he knowingly and
intelligently forgoes his right to counsel and that he is able and willing to abide
by rules of procedure and courtroom protocol." McKaskle v. Wiggins, 465 U.S.
168, 173, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).
1. History

15

To set Gmez's Sixth Amendment claims in context, we begin by reviewing the

history of his representation in this case.

16

By April 2002, some two years after he was arrested and nine months before
his first trial, Gmez though represented by counsel had already filed
more than two dozen pro se motions, many of them long, confusing,
contradictory, and devoid of merit. Denied bail early on, he nonetheless
continued to seek release on bail. He sought mandamus against the government
several times. A number of motions repeatedly sought dismissal of the
indictment on fanciful theories or claims of misconduct. One, for example, was
captioned "Motion to dismiss the indictment based on some or all the violation
committed by the government against federal and state laws and defendants
constitutional rights or for appeal." Other motions asked the court to explain
why it had denied earlier motions or to reconsider the denials and rule in his
favor. He thus filed repetitive motions on subjects already ruled on.

17

Further, some of Gmez's filings were not motions in the proper sense, but
instead rants directed at the district court and attorneys for both sides. On July
31, 2001, for example, Gmez submitted a motion entitled "Motion to set time
and place for the trial," in which he argued that his trial should be held in
Florida "due to all the complecety and friendship that there is between attorney
and U.S. Attorneys" and because "it is the law that the personal wishes or
convenience of the judge are not factor to be considered in determining the
proper place of trial." And on August 29, 2001, Gmez filed a motion entitled

"Pro-se motion claiming duprocess violation by the court by dismissing

defendant's pro-se motion under not justifiable grond, after the defendant being
wheting way over two month for this honorable court to rules up on those
motion."
18

On April 12, 2002, Gmez asked the court to permit his then-counsel Bruce
McGiverin to withdraw so that he could proceed pro se. The court agreed, but
in order to minimize pro se motions that were so incomprehensible as to be a
"total waste of time" for the court, the court appointed McGiverin as standby
counsel and told him to read Gmez's pro se motions, "advis[e] the court what
motions you as a professional would adopt," and offer Gmez drafting advice.
The court stated that regardless of McGiverin's opinions, Gmez would be free
to file the motions, which would then be filtered by a magistrate judge.

19

After the April 12, 2002 order, Gmez filed several dozen more pro se motions,
including many after he retained a new counsel of record, Linda George, and
despite the fact that his various counsel had filed all of the customary discovery
and other motions. These new pro se motions were confusing and many were
meritless. On May 14, 2003, for example, Gmez filed an eight-page, singlespaced motion, accompanied by a four-page affidavit, asking that the case be
dismissed for "double jeopardy" (of which there was none). The motion stated
that "even knowing" that Gmez's affidavit was based on government perjury,
"the District Court . . . has desregarded and/or ignored the matter by not holding
a hearing as to the issue."

20

We quote such passages not to make light of Gmez's motions, but to

emphasize the difficulties they created for the district court. The court received
dozens of such filings over a three-year period, many of them quite long and
packed with muddled, contradictory, meritless legal argument. Each needed a
response from the court, and many led to hearings, not to mention appearances
by counsel and replies from the government. Despite the burden Gmez's pro
se motions imposed, the district court did not treat them lightly. It ruled on
many of them, denying the vast majority but allowing some. Most of those it
found to have merit had to do with Gmez's various requests for dismissal of
his lawyers, for extensions of time, and for transcripts of previous hearings.

21

By May 2003, the defense had filed more than 95 motions, the majority of
which were pro se. One such pro se motion, which Gmez filed on March 28,
2003, sought the withdrawal of his then-counsel George. The court held a
hearing on Gmez's motion on May 22, 2003.5 The court first informed Gmez
that it would not allow George to withdraw and to be replaced by a courtappointed attorney because Gmez had not offered a valid reason for his

dissatisfaction with George.

22

George suggested that Gmez proceed pro se while she acted as standby
counsel. The court initially rejected that proposal, noting that it had made a
similar arrangement with McGiverin but that "there were a considerable
[number] of motions that were filed that were either thoroughly out of bounds
or were simply not indicated for this type of case. So therefore, I have to stop
him. There is a moment when the court has to stop receiving all those motions."
After several more exchanges, the court agreed to allow Gmez to proceed pro
se with George acting as standby counsel. The court explained the duties it
assigned to George, now acting as standby counsel:

23

Court: [T]he first thing I have to ask you is to examine all the motions that he's
filed [pro se], and to see which ones you're going to adopt. And then adopt them
. . . by doing a refiling. The court . . . will not authorize his participation pro se
unless you do a screening of the motions.

24

George: I will, Your Honor. I'll go over every one.

25

Court: That's the only way I'm going to permit it. Pro se is out of the question.
It's out of the question because you cannot handle what is appropriate. You
don't know enough law, what is appropriate for a case. And you keep filing
motions that are totally out of bounds with the facts and with the law. . . . I'm
not going to have the U.S. Attorney answer some of these motions that I
understand are totally out of bounds.

26

George: I will review those and I'll refile them.

27

Court: Refile those that you understand, that you . . . as a member of the court
deem to be applicable to this case. And I urge that you use your discretion as a
lawyer and your reputation as a lawyer before this court. That's all I have to say.
I feel totally at ease if you do that.

28

George: Okay.

29

Court: All right. And that's the only way I'm going to allow you to represent
yourself in this case. That's it.

30

Gmez: Your Honor, if that's what you want, I mean

31

Court: It's not what I want. This is what the court must do, considering the
history of motions that have been filed in this case.

32

Gmez: Your Honor, but the thing is most have been filed because they need to
be filed. Any of the motions

33

Court: As long as they are reviewed by counsel, I have no problems.

34

The court thus allowed Gmez to proceed pro se but imposed the condition that
George review motions written by Gmez and refuse to file those that were, in
the court's words, "totally out of bounds with the facts and with the law."

35

Following the May 22 hearing, Gmez participated fully in jury selection. Trial
then began before a different district court judge. Before the jury was sworn in
on the trial's first day, there was some confusion as to Gmez's status. The
judge indicated that he thought Gmez was proceeding with counsel. However,
Gmez and George quickly clarified that the May 22 order allowed Gmez to
represent himself. Gmez told the court, and George verified, that "I was
supposed to be represented by myself, pro se." He went on to explain that "Mr.
Domnguez, the judge . . . addressed the matter and he decided for me to be
represented by myself with Linda George as helping counsel. I was permitted to
address the court." After hearing this, the judge questioned Gmez to confirm
that he had knowingly and voluntarily waived the right to counsel.6 The judge
then agreed that Gmez could represent himself, and noted that George was
standby counsel "in the event that [Gmez] ha[s] questions or any information
[he] need[s] from her." When it came time for Gmez to deliver his opening
statement, however, Gmez informed the trial judge that he did not have a
statement prepared. The judge told Gmez that he could make (or waive) the
statement himself, retaining his pro se status, or allow George to make the
statement, relinquishing his pro se status. Faced with waiving his opening
statement, Gmez allowed George to take over his representation.

36

Although George represented Gmez at trial, Gmez continued to file pro se

motions after the trial pursuant to the guidelines set forth in the court's May 22
order, i.e., screening by George. Gmez was also permitted to participate
actively in a post-judgment motions hearing on August 27, 2003.7 As the court
explained at the hearing, "[y]ou're authorized to speak to the court. . . . One
thing is to speak to the court and another is to be filing motions. Two totally
different things." With the court's permission, both Gmez and his counsel
participated at his sentencing hearing on November 4, 2003.

2. October 2001 motion to proceed pro se

37

Gmez first argues that the district court erred in handling his October 2, 2001
motion to remove his then-counsel McGiverin8 and to proceed pro se.
Specifically, Gmez maintains that the court did not comply with its duty to
determine whether the motion constituted a valid waiver of his right to counsel
and that, instead, the court "effectively ignored the motion, failing to conduct a
hearing on it for more than six months" and then rejected the motion "out of
hand."

38

Gmez's account of these proceedings does not square with the record. The
court did not "effectively ignore[ ]" Gmez's motion to proceed pro se. To the
contrary, the court scheduled a hearing on the motion for October 15, 2001,
two weeks after it had been filed. The hearing had to be rescheduled, however,
after the United States marshals informed the court that Gmez was out of
control, exhibiting violent behavior and expressing ill will toward his mother
and his lawyer. Faced with this information, together with the fact that
McGiverin was the fifth attorney that Gmez fired or sought to have removed,
the court concluded that it had "no other alternative but to order [Gmez's]
psychiatric evaluation immediately." Such an evaluation was entirely
appropriate under the circumstances, see Godinez v. Moran, 509 U.S. 389, 400,
113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (noting that a court must determine
that a defendant seeking to waive counsel is competent), and Gmez does not
contend otherwise.

39

The sealed psychiatric examination was filed with the court on February 1,
2002. On February 15, 2002, the court issued a sealed order finding the
defendant competent to stand trial. The court subsequently granted a motion by
Gmez to discuss his legal representation, scheduling a hearing for April 12,
2002. At the April 12 hearing, the court expressed concern about Gmez's
ability to represent himself effectively, noting that he had "fill[ed] this record
with totally incoherent motions, which are contradictory and taken totally out of
context." Nevertheless, the court granted Gmez's motion to proceed pro se,
subject to a requirement that he have standby counsel.9

40

A court may appoint standby counsel even over the defendant's objections. See
United States v. Kneeland, 148 F.3d 6, 13 (1st Cir.1998) (noting that "a trial
court may appoint standby counsel against a defendant's wishes"). Thus, the
requirement that McGiverin act as standby counsel in this case was not
inconsistent with Gmez's pro se status. Cf. United States v. Walsh, 742 F.2d
1006, 1007 (6th Cir.1984) (per curiam) (holding that standby counsel did not
eviscerate the defendant's right to self-representation where the defendant "was

required to submit his motions to advisory counsel for review"). Indeed, Gmez
represented himself at a bail hearing within days of the court granting his
motion for self-representation. Although McGiverin also participated in the bail
hearing by delivering a final argument, he did so only in response to an explicit
request by Gmez.10
41

In short, Gmez's claims that the court rejected his October 2, 2001 motion for
self-representation "out of hand" and that "[a]t no time did the [district court]
allow [him] to represent himself" are flatly incorrect. The court did not err in
handling the motion to proceed pro se.
2. May 22, 2003 screening order

42

Gmez next faults the court's handling of his motion to have his counsel this
time, his sixth attorney, Linda George withdraw and to proceed pro se.
Emphasizing that Gmez's previous pro se motions had been incomprehensible,
the court ruled on May 22, 2003 that Gmez could represent himself only if
George filtered and approved his motions before they were filed. On appeal,
Gmez asserts that this ruling violated his Sixth Amendment right to selfrepresentation. We disagree.

43

Gmez first contends that the court's May 22 order denied his request to
proceed pro se and therefore violated his Sixth Amendment right of self
representation. See Faretta, 422 U.S. at 807, 95 S.Ct. 2525. The record does not
support this claim. The court did not deny Gmez's request to proceed pro se.
Rather, as we have described, it granted the request but imposed one limitation
on Gmez's self-representationnamely, a requirement that George, as standby
counsel, screen Gmez's motions. Gmez was permitted to represent himself in
other areas, including at jury selection. As the court explained during a hearing
on August 27, 2003, the May 22 order left Gmez free to "speak to the court,"
just not to "file motions on your own." We therefore reject Gmez's claim that
the court denied his request to represent himself "out of hand."

44

Perhaps anticipating this result, Gmez also asserts that George's unwelcome
participation as standby counsel i.e., her screening of the motions so
interfered with his right of self-representation as to "effectively render[ ] his
right to self-representation meaningless." Armant v. Marquez, 772 F.2d 552,
558 (9th Cir.1985). We consider this claim under the standards set forth in
McKaskle v. Wiggins, which dealt with the role that standby counsel, present at
trial over the defendant's objections, may play without eviscerating the Faretta
right of self-representation. The McKaskle Court identified two criteria as being

central to its analysis:

45

First, the pro se defendant is entitled to preserve actual control over the case he
chooses to present to the jury. . . . If standby counsel's participation over the
defendant's objection effectively allows counsel to make or substantially
interfere with any significant tactical decisions . . . or to speak instead of the
defendant on any matter of importance, the Faretta right is eroded.

46

Second, participation by standby counsel without the defendant's consent

should not be allowed to destroy the jury's perception that the defendant is
representing himself.

47

465 U.S. at 178, 104 S.Ct. 944.

48

Gmez first asserts that as a result of the court's screening order, he was
"unable to submit motions that counsel did not approve of." Because this
contention pertains solely to George's participation in Gmez's motions
practice, which occurred outside the presence of the jury, only the first prong of
the McKaskle analysis is relevant to our inquiry. See id. at 179. ("Participation
by standby counsel outside the presence of the jury engages only the first of
these two limitations."). Gmez has not demonstrated that his Faretta right was
"eroded" according to this standard.

49

Although it is true that he could not submit a motion without George's

approval, Gmez has not identified on appeal any motions that George
prevented him from filing. Indeed, the record includes a number of pro se
motions that were drafted by Gmez and filed by George after the court's May
22 order. Moreover, George's ability to block Gmez from filing motions that
were irrelevant or "totally out of bounds" cannot be said to constitute either
interference with a "significant tactical decision" or a preemption of Gmez's
ability to speak on a "matter of importance." McKaskle, 465 U.S. at 178, 104
S.Ct. 944. Rather, the court designated George as standby counsel, and defined
her role, to "ensure the defendant's compliance with basic rules of courtroom
protocol and procedure," a practice that does not infringe on a pro se
defendant's Faretta rights. Id. at 183.

50

Basic rules of courtroom protocol and procedure impose an obligation, both on

counsel and on individuals acting as their own counsel, to comply with court
rules and not file frivolous motions. Federal courts "possess discretionary
powers to regulate the conduct of abusive litigants." Cok v. Family Court of
Rhode Island, 985 F.2d 32, 34 (1st Cir.1993). This power includes the ability to

enjoin a party even a pro se party from filing frivolous and vexatious
motions. Sires v. Fair, No. 96-1454, 1997 WL 51408 (1st Cir. Feb.10, 1997)
(unpublished); Castro v. United States, 775 F.2d 399, 408 (1st Cir.1985)
(abrogated on other grounds by Stevens v. Dep't of the Treasury, 500 U.S. 1,
111 S.Ct. 1562, 114 L.Ed.2d 1 (1991)). This court reviews such orders for
abuse of discretion. Castro, 775 F.2d at 408. In fact, in a parallel situation, we
upheld a district court order which enjoined a pro se litigant "from filing any
motions, pleadings or papers . . . without prior leave of the Court," Hart v.
United States, No. 92-1801, 1994 WL 89442, at *1 (1st Cir. Mar.22, 1994),
where the defendant had "deluged the court with at least sixty-six different
motions, most of them pro se." Id. (quoting United States v. Hart, 933 F.2d 80,
81-82 (1st Cir.1991)).
51

Gmez nevertheless maintains that George's screening role was inconsistent

with his right of self-representation. His argument relies on the Court's
statement in McKaskle that

52

Faretta rights [to self-representation] are adequately vindicated in proceedings

outside the presence of the jury if the pro se defendant is allowed to address the
court freely on his own behalf and if disagreements between counsel and the
pro se defendant are resolved in the defendant's favor whenever the matter is
one that would normally be left to the discretion of counsel.

53

McKaskle, 465 U.S. at 179, 104 S.Ct. 944. Gmez asserts that as long as
George was screening his motions, he was unable to "address the court freely"
and that by allowing George, rather than Gmez, to decide which motions to
file, the court failed to resolve disagreements in favor of the defendant, all in
contravention of McKaskle.

54

The statement from McKaskle on which Gmez relies cannot be read in

isolation. That statement was a reiteration of the first prong of the test set forth
earlier in the opinion, namely the requirement that standby counsel's
unwelcome participation not "substantially interfere with any significant tactical
decisions" or result in counsel "speak[ing] instead of the defendant on any
matter of importance." Id. at 178, 104 S.Ct. 944 (emphasis omitted). This
formulation informs the meaning of the reiteration relied upon by Gmez.
Moreover, that reiteration must also be read in conjunction with the Court's
subsequent statement that there is no "significant interference with the
defendant's actual control over the presentation of his defense, and thus no
infringement of his Faretta rights, when `counsel merely helps to ensure the
defendant's compliance with basic rules of courtroom protocol and procedure.'"
McKaskle, 465 U.S. at 183, 104 S.Ct. 944. The McKaskle Court also

emphasized that "[t]he trial judge may be required to make numerous rulings
reconciling the participation of standby counsel with a pro se defendant's
objection to that participation; nothing in the nature of the Faretta right
suggests that the usual deference to `judgment calls' on these issues by the trial
judge should not obtain here as elsewhere." Id. at 177 n. 8, 104 S.Ct. 944.
55

Taken together, these explanations of permissible participation by standby

counsel indicate that the pro se defendant's right to "address the court freely" is
not absolute. Rather, the court may use standby counsel to facilitate the orderly
functioning of the proceedings so long as the defendant retains control over
"significant tactical decisions" and "on any matter of importance." George's
screening role was consistent with that standard. In light of Gmez's long
history in this case of filing irrelevant and frivolous motions, George's
responsibility for preventing the filing of such motions did not deprive Gmez
of control over his defense. Cf. United States v. Collins, 920 F.2d 619, 627
(10th Cir.1990) (noting that "an attorney may be dismissed for pursuing
frivolous theories"); United States v. Masat, 896 F.2d 88, 92 (5th Cir.1990)
(same); Model Rules of Prof'l Conduct R. 3.1 (2003) (noting that "[a] lawyer
shall not . . . assert. . . an issue . . . unless there is a basis in law and fact for
doing so that is not frivolous").

56

Gmez also asserts that George's unwelcome standby participation violated the
limits set forth in McKaskle because it left him unable to call witnesses who
would have corroborated a certain aspect of his testimony. Gmez's argument
appears to rely on the following logic: the court's May 22 order regarding
George's screening role led him to believe that he would not be permitted to
proceed pro se at trial; Gmez therefore arrived at trial unprepared to represent
himself; although the trial judge agreed to let Gmez proceed pro se, Gmez's
lack of preparation forced him to ask George to take over his representation
before his opening statement;11 this relinquishment of his pro se status meant
that George, rather than Gmez, chose which witnesses to present. In short,
Gmez contends that, but for George's screening role, he would have
represented himself at trial and called witnesses that George chose not to call.

57

It is true that the judge presiding over Gmez's second trial initially was
confused as to whether the court's May 22 order restricted Gmez's pro se
status only with regard to motions, or with regard to his self-representation
more generally. Given Gmez's claim on appeal that he was unprepared
because he did not believe he would be allowed to represent himself, however,
it is Gmez's understanding of the pre-trial record, rather than the trial judge's
understanding, that is relevant. As we have already observed, Gmez told the
trial judge that he was "supposed to" represent himself and that the previous

district court judge had "decided for me to be represented by myself with Linda
George as helping counsel. I was permitted to address the court." These
statements indicate that Gmez thought that he had been granted pro se status
prior to the trial, undermining his claim that he interpreted the court's May 22
screening order to preclude him from representing himself at trial. Gmez's
lack of preparation at the outset of the second trial was his own fault. His
decision to relinquish his pro se status as a result of that lack of preparation was
entirely voluntary. The claim that George's screening role prevented Gmez
from representing himself at trial and calling particular witnesses is therefore
without merit.12
B. Constructive amendment of the indictment
58

Count Two of the superseding indictment charged Gmez with conspiracy to

possess with intent to distribute approximately 975 grams of heroin. At the
close of the second trial, the jurors were given a special verdict form that read,
in part:

59

COUNT II. CONSPIRACY TO POSSESS WITH INTENT TO DISTRIBUTE

HEROIN

60

3. We, the jury, find the defendant Fernando Gmez-Rosario _____ (guilty/not
guilty).

61

4. (Answer only if you have answered "Guilty" to Question # 3.)

62

(a) Was the amount of heroin at least 100 grams or more?

Yes___ No___

63

(b) [Answer only if you have answered "no" to Question # 4(a).]

64

Was the amount of heroin less than 100 grams?

Yes___ No___

65

Gmez did not object to the special verdict form, which presumably was
designed to comply with the requirement set forth in Apprendi v. New Jersey,
530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that a jury find,
beyond a reasonable doubt, any facts needed to impose a sentence in excess of

the default statutory maximum. See United States v. Perez-Ruiz, 353 F.3d 1, 15
(1st Cir.2003) (applying Apprendi to drug type and quantity determinations),
cert denied, 541 U.S. 1005, 124 S.Ct. 2058, 158 L.Ed.2d 522 (2004).13
66

After approximately three hours of deliberations, the jury sent a note asking the
court to explain "the importance of 100 grams of heroin when the defendant is
guilty or not guilty." The court asked counsel for a suggested response.
Gmez's counsel responded that "I think the court should just read what was on
the verdict sheet again. I don't think we should get into any explanation." The
court substantially complied with this suggestion, instructing the jury that
"under the law, on a finding of guilty, the jury is required to answer the
question regarding quantity. On a finding of not guilty, the jury should not
answer the question regarding quantity." The jury subsequently determined that
Gmez was guilty on Count II but that the amount of heroin involved was less
than 100 grams.

67

On appeal, Gmez argues that through the special verdict question regarding
drug quantity and the corresponding jury instructions, the district court
constructively amended the superseding indictment in contravention of the
Fifth Amendment. A constructive amendment, which is prejudicial per se,
"occurs when the charging terms of the indictment are altered, either literally or
in effect, by prosecution or court after the grand jury has last passed upon
them." United States v. Fisher, 3 F.3d 456, 462-63 (1st Cir.1993) (internal
quotation marks and citation omitted). Gmez contends that the district court
changed the terms of the superseding indictment in this case when it allowed
the jury to determine, via the special verdict form, whether Gmez was part of
a conspiracy to possess less than 100 grams of heroin. In support of this
contention, Gmez asserts that because the superseding indictment charged him
with conspiring to possess approximately 975 grams of heroin, it must have
referred to a conspiracy with Hueck and Sarruco to possess all eighty-five
heroin pellets that Sarruco swallowed (which actually weighed 678 grams). He
reasons that if the jury had found him guilty of this conspiracy, it would have
indicated on the special verdict form that the amount of heroin was more than
100 grams. Because the jury found instead that the amount of heroin was less
than 100 grams, Gmez contends that it must have convicted him of a
conspiracy other than the one charged specifically, an ad hoc conspiracy
with Agent Carmona (posing as Sarruco) to possess the four heroin pellets
present in the hotel room, which weighed approximately 32 grams. We
disagree.

68

No specific drug quantity needs to be proven for a jury to convict a defendant of

conspiracy to possess with intent to distribute. See United States v. Restrepo-

Contreras, 942 F.2d 96, 99 n. 1 (1st Cir.1991). It is therefore not erroneous per
se to allow a jury to find that a defendant is guilty of the crime charged but
responsible for a lesser quantity of drugs than that specified in the indictment.
See, e.g., United States v. Ruiz Solorio, 337 F.3d 580, 589-91 (6th Cir.2003),
cert. denied, 540 U.S. 1063, 124 S.Ct. 850, 157 L.Ed.2d 723 (2003). Gmez
does not contend otherwise. He argues instead that, in this particular case, the
effect of the special verdict question regarding drug quantity was to allow the
jury to consider two different conspiracies, one charged and one uncharged.
69

While Gmez's argument is creative, it is ultimately unpersuasive. The court

asked the jury to determine the drug quantity not to present it with an uncharged
conspiracy, but rather to ascertain a fact necessary for sentencing. The court
instructed the jury that it should convict Gmez on Count II only upon a
finding that "the agreement specified in the indictment, and not some other
agreement or agreements, existed between at least two people to possess a
controlled substance with intent to distribute it" (emphasis added). It further
instructed the jury that it should reach the question of drug quantity only upon a
finding that Gmez was guilty. Nothing in these instructions suggests that the
jury was free to convict Gmez for a conspiracy other than the one charged in
the superseding indictment. See United States v. Owens, 167 F.3d 739, 756 (1st
Cir.1999) (noting that "our system of trial by jury is premised on the
assumption that jurors will scrupulously follow the court's instructions").
Rather, the instructions and special verdict form left room for the jury to
determine that Gmez had participated in the charged conspiracy but to limit
his responsibility to a lower amount. Neither the special verdict form nor the
instructions accompanying it constituted a constructive amendment of the
superseding indictment.14
C. Sufficiency of the evidence

70

To establish that the defendant is guilty on a conspiracy charge, the government

must prove that "an agreement existed to commit the underlying substantive
offense, and that the defendant elected to join the agreement, intending that the
underlying offense be committed." United States v. Medina-Martinez, 396 F.3d
1, 5 (1st Cir.2005), cert. denied, ___ U.S. ___, 125 S.Ct. 1955, 161 L.Ed.2d
786 (2005). Gmez asserts that there was insufficient evidence to convict him
of a conspiracy in this case because there was no one with whom he could have
conspired. We review a sufficiency of the evidence claim de novo, considering
the evidence in the light most favorable to the verdict. See United States v.
Rivera-Ruiz, 244 F.3d 263, 266 (1st Cir.2001). "Our inquiry is only whether the
guilty verdict finds support in a plausible rendition of the record." Id. (internal
quotation marks omitted). The remedy for a successful sufficiency of the

evidence challenge is an order directing a judgment of acquittal. See Burks v.

United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) ("Since we
hold today that the Double Jeopardy Clause precludes a second trial once the
reviewing court has found the evidence legally insufficient, the only `just'
remedy available for that court is the direction of a judgment of acquittal.").
71

1. Evidence of an ad hoc conspiracy with Carmona

72

Gmez's first sufficiency of the evidence claim rests on his contention that the
jury convicted him of an ad hoc conspiracy formed with Agent Carmona in the
hotel room, rather than the charged conspiracy involving Hueck, Sarruco, and
others. Emphasizing that "there can be no conspiracy as a matter of law solely
between a defendant and a government agent," United States v. Castellini, 392
F.3d 35, 51 n. 11 (1st Cir.2004), Gmez asserts that there was no evidence to
support a conviction for the ad hoc conspiracy. We have already rejected the
premise underlying this sufficiency of the evidence claim. Hence, we reject the
related sufficiency of the evidence claim on the same basis.

73

2. Evidence of a conspiracy with Hueck and Sarruco

74

Gmez next argues that he could not be convicted of the charged conspiracy
because there was insufficient evidence to connect him to either Sarruco, the
drug courier, or Hueck, the drug supplier. With regard to Sarruco, Gmez
contends that the government is estopped from claiming that the two were coconspirators because, in granting a judgment of acquittal in the first trial, the
district court found that "the only evidence in this case about the relationship
between Gmez and Sarruco is that there was no relationship." With regard to
Hueck, Gmez simply asserts that there was no evidence of a relationship
between the two, and therefore no possible criminal agreement. We consider
these claims in turn.

75

a. Sarruco

76

Under the doctrine of collateral estoppel, "when an issue of ultimate fact has
once been determined by a valid and final judgment, that issue cannot again be
litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397
U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Gmez asserts that the
district court determined during his first trial that he had no relationship with
Sarruco, and therefore that the government could not attempt to show during
the second trial that he and Sarruco were co-conspirators. The district court,
however, made no such finding during the first trial. It concluded only that

there was no personal relationship between Gmez and Sarruco sufficient to

support a charge that Gmez aided and abetted Sarruco's drug possession.15
The court did not determine that the lack of a personal relationship would
preclude the two from being co-conspirators. To the contrary, the court
suggested that the facts likely would support the existence of a conspiracy.16
The court's finding in the first trial that Sarruco and Gmez did not know each
other therefore did not preclude the government from arguing in the second trial
that the two were co-conspirators. See, e.g., United States v. Soto-Benquez, 356
F.3d 1, 19 (1st Cir.2004) ("The government need not show that each
conspirator knew of or had contact with all other members."), cert. denied, 541
U.S. 1074, 124 S.Ct. 2432, 158 L.Ed.2d 985 (2004).
77

There is ample circumstantial evidence that Sarruco and Gmez were part of a
conspiracy to possess heroin with intent to distribute it. Sarruco told Hueck that
he was waiting in Room 209 of the Hotel Iberia. Within hours, Gmez arrived
at the hotel in a van containing a gun and knocked on the door of Room 209.
After being shown four heroin pellets, Gmez asked Agent Carmona, posing as
Sarruco, how many he had swallowed and offered to get him a laxative. Based
on this evidence, a reasonable jury could have concluded that Gmez's presence
at the hotel was not merely coincidental, as he claimed. Rather, the jury could
have concluded, he visited Room 209 based on his participation in a conspiracy
with Sarruco and others. See United States v. Gmez-Pabon, 911 F.2d 847, 853
(1st Cir.1990) ("[P]roof [of membership in a conspiracy] may consist of
circumstantial evidence, including inferences from surrounding circumstances,
such as acts committed by the defendant that furthered the conspiracy's
purposes.").

78

b. Hueck

79

Emphasizing that there is no direct evidence in the record linking him to Hueck,
Gmez asserts that the two could not have been co-conspirators. As we have
already discussed, however, Gmez's appearance at Room 209 of the Hotel
Iberia shortly after Sarruco talked to Hueck, together with his interaction with
Agent Carmona, were adequate to link Gmez to a conspiracy that included
Hueck.
D. Pre-indictment delay

80

Gmez was arrested in April 2000 on substantive drug possession and

importation charges, and a related firearms charge. His trial on those charges
ended on February 26, 2003 with a judgment of acquittal on two counts (drug

possession and possession of a firearm) and a mistrial on the third count (drug
importation). Instead of retrying Gmez on the drug importation charge, the
government obtained a superseding indictment in March 2003 that charged
Gmez with conspiracy to possess drugs with intent to distribute and conspiracy
to import drugs. Gmez went to trial on the conspiracy charges in June 2003
and was ultimately convicted on the conspiracy to possess charge.
81

On appeal, Gmez asserts that the delay between his arrest in April 2000 and
the filing of the superseding indictment in March 2003 violated his Sixth
Amendment right to a speedy trial. The government points out, however, that
Gmez's development of this argument is more consistent with a Fifth
Amendment due process claim based on pre-indictment delay than with a Sixth
Amendment speedy trial claim. We agree.

82

The purported Sixth Amendment claim in this case focuses entirely on preindictment delay. While delay between arrest and indictment may be relevant to
the Sixth Amendment inquiry, see United States v. MacDonald, 456 U.S. 1, 7,
102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), we think it peculiar that Gmez's
Speedy Trial Clause claim alleges only pre-indictment delay and is entirely
silent as to pre-trial delay. Moreover, Gmez has not identified the framework
set forth in Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 33 L.Ed.2d
101 (1972), for analyzing a Speedy Trial Clause claim, nor has he explained
how the facts of this case fit that framework. Even after the government pointed
out this omission in its brief on appeal, Gmez failed to develop the Sixth
Amendment argument in his reply brief, focusing instead on the application of
the Fifth Amendment Due Process Clause to his claim. Under these
circumstances, we do not consider Gmez's Sixth Amendment claim.17 See
United States v. Berrio-Callejas, 219 F.3d 1, 3 (1st Cir.2000) (treating a claim
as waived where the appellant "neither presents developed argumentation nor
provides pertinent case citations").

83

The essence of Gmez's complaint of pre-indictment delay is not that he was

denied a speedy trial, but rather that his due process rights were violated. The
Fifth Amendment Due Process Clause requires the dismissal of an indictment
where the defendant can show that "the pre-indictment delay. . . caused
substantial prejudice to [his] right[ ] to a fair trial and that the delay was an
intentional device to gain tactical advantage over the accused." United States v.
Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).
1. Prejudice

84

Gmez identifies two forms of prejudice stemming from the government's delay

84

Gmez identifies two forms of prejudice stemming from the government's delay
in obtaining the superseding indictment. First, he asserts that because the
substantive and conspiracy charges were brought consecutively, instead of
concurrently, he was forced to defend himself twice. In light of the disposition
of Gmez's first trial (the court declared a mistrial on one count and ordered
that a retrial be scheduled), however, Gmez would have had to defend himself
twice even if the superseding indictment had never been filed; the government
just decided to bring different charges for the second trial. Moreover, there is
no evidence that forcing Gmez to defend himself twice caused any prejudice,
let alone substantial prejudice, to his right to a fair trial. See id. He does not
assert that any evidence or witnesses were compromised by the delay, nor does
he explain how the delay otherwise hampered his right to a fair trial.

85

Gmez also assigns prejudice to the three years he spent in prison before the
superseding indictment was filed. The incarceration to which Gmez points,
however, did not result from the pre-indictment delay of which he now
complains. Gmez was imprisoned between April 2000 and February 2003
pending trial on the substantive charges set forth in the original indictment. He
would have spent that time in prison regardless of when the conspiracy charges
were filed. The government obtained the superseding indictment approximately
two weeks after the trial on the substantive charges ended in a mistrial. The
relevant period of pre-indictment incarceration with respect to Gmez's Fifth
Amendment prejudice claim is therefore a matter of weeks, not of years.
2. Tactical advantage

86

Even if Gmez were able to demonstrate prejudice resulting from the preindictment delay, his Fifth Amendment claim would falter on the second prong
of the inquiry. There is simply no evidence that the government intentionally
delayed indicting Gmez on the conspiracy charges to obtain a tactical
advantage.18 Moreover, although Gmez claims that the sequential indictment
allowed the government to get "a second bite at the apple," he has not identified
any specific advantage that the government gained. Gmez did not present any
evidence in the first trial. He cannot argue, therefore, that the sequential
prosecution allowed the government to preview his case or to adapt its case to
his defense. In short, Gmez's due process claim must fail.

III.
87

Finally, Gmez challenges the propriety of his sentence, arguing that a remand
for resentencing is appropriate in light of the Supreme Court's decision in
Booker. We agree and reject the government's contrary position.

88

This court deems Booker error preserved if the defendant argued at sentencing
that the sentence violated Apprendi or Blakely,19 or that the federal Sentencing
Guidelines were unconstitutional. See United States v. Antonakopoulos, 399
F.3d 68, 76 (1st Cir.2005). Where the defendant has preserved a Booker claim,
we review for harmless error, remanding for resentencing unless the
government can show beyond a reasonable doubt that a lower sentence would
not be imposed under the post-Booker regime. United States v. Vzquez-Rivera,
407 F.3d 476, 489 (1st Cir.2005).

89

In this case, the district court took account of several facts not found by the jury
including, inter alia, the amount of heroin involved, the presence of a
firearm, and the court's conclusion that Gmez perjured himself at trial in
determining a sentence, and Gmez timely objected to the judicial fact-finding.
Thus, Gmez preserved his claim of error. The government has not met its
burden of proving that Gmez would not receive a lower sentence under the
advisory Guidelines. See Vazquez-Rivera, 407 F.3d at 490 (even "factual
certainty" as to basis for enhancements is not sufficient to show beyond a
reasonable doubt that the judge would have applied the same sentence under an
advisory Guidelines system). We remand for resentencing.

90

The government asserts that a full remand is inappropriate. Contending that

Gmez preserved his Booker claim only with respect to the amount of drugs
involved in the conspiracy, and not with respect to the gun and perjury findings,
it argues that we should therefore review the latter two issues under a plain
error standard. The government maintains that Gmez cannot meet that
standard and thus that we should issue a partial remand, instructing the district
court only to recalculate the base offense level. We reject this invitation to
disaggregate Booker claims and consider them piecemeal. Such an approach is
inconsistent with this court's Booker jurisprudence under Antonakopoulos.

91

Of course, our decision to remand should not be read as a "suggestion or a

prediction that [Gmez's] sentence will necessarily be altered." United States v.
Heldeman, 402 F.3d 220, 224 (1st Cir.2005). This is especially true "where the
remand arises out of a preserved error and where the harmless error test makes
even a modest possibility of change enough to warrant remand." United States
v. Lata, 415 F.3d 107, 112 (1st Cir.2005).

IV.
92

Gmez's conviction is affirmed; his sentence on that conviction is vacated. We

remand for resentencing consistent with this opinion.

93

So ordered.

Notes:
*

Of the Tenth Circuit, sitting by designation

We refer throughout this opinion to "the district court," a generic term which
might suggest that a single judge presided over all the proceedings that
culminated in this appeal. That is not the case. At least three different district
court judges, and an array of magistrate judges, have been involved in different
stages of this case. Judge Domnguez handled the October 2001 and March
2003 motions to proceedpro se that are discussed in Section II.A., while Judge
McAuliffe presided over the first trial, which ended in a judgment of acquittal
on two counts and a mistrial on one count, and Judge Singal presided over the
second trial, which resulted in Gmez's conviction for conspiracy to possess
drugs with intent to distribute. Only rulings of Judge Domnguez and Judge
Singal are at issue in this appeal.

Sarruco expelled the remaining eighty pellets at the San Juan Health Center
under the supervision of two customs agents. In total, he carried approximately
678 grams of heroin

Sarruco pled guilty before the trial

Gmez's testimony on this point is inconsistent with the account offered by

Agent Carmona, who testified that Gmez looked through an open end of the
package before putting it down and then asked how many he had swallowed.
Based on such inconsistencies, the court found at sentencing that "the defendant
. . . perjure[d] himself during trial when he was claiming that he was at the
hotel to find this unknown female in an unknown room. I find that in fact he
went to the hotel to pick up the drugs."

Gmez cites the two-month interval between the filing of his motion and the
hearing as evidence of the district court's "indifference to the defendant's
assertion of an absolute Sixth Amendment right." This claim is manifestly
unfair to the district court, which expended a great deal of effort in attempting
to accommodate Gmez. Moreover, there was good reason for the delay.
Shortly after Gmez filed his motion, the district court judge temporarily
recused himself from the case and reassigned all pending motions to a
magistrate judge. The magistrate promptly issued an order giving George an
opportunity to respond to the motion to withdraw, and scheduled the hearing a
month later, by which point the district court judge had returned to the case

Before concluding that the waiver of the right to counsel was knowing and
voluntary, the trial judge took great pains to ensure that Gmez had "a sense of
the magnitude of the undertaking,"Maynard v. Meachum, 545 F.2d 273, 279
(1st Cir.1976). For example, the judge warned Gmez:
I think it is unwise of you to try to represent yourself. You are not familiar with
the law in spite of what you think. You are not familiar with court procedure . .
. and you are not familiar with the Rules of Evidence in spite of what you think.
This is a very serious set of charges. If you represent yourself, you're going to
be bound by the result and you can't come back to me later and say, `Gee, I
made a horrible mistake and now, I think I ought to do it all over again with an
attorney. I urge you strongly, in the strongest possible terms, because I think
you are making a big mistake, not to try to represent yourself.'

The August 27, 2003 hearing involved another change of counsel. Gmez had
filed a civil suit against George, creating a conflict of interest between the two.
The court concluded that in light of the conflict of interest, it had to allow
George to withdraw. The court again agreed to let Gmez "proceedpro se with
standby counsel" subject to a limitation that "standby counsel is the only person
authorized to sign motions," and appointed attorney Miriam Ramos Grateroles
as the standby counsel.

Gmez claimed that McGiverin would not file motions that Gmez believed
were necessary to his defense and to preserve his appellate rights

Although there was some ambiguity during the hearing as to McGiverin's exact
role as standby counsel, the court ultimately explained that it wanted
McGiverin to examine Gmez'spro se motions, but that Gmez retained control
over their filing.

10

Gmez employed this hybrid representation arrangement again at a motions

hearing on August 15, 2002, representing himself throughout much of the
hearing but asking McGiverin, his standby counsel, to cross-examine a witness
about an evidentiary issue

11

As already noted, when it became apparent that Gmez had not prepared an
opening statement, the trial judge informed Gmez that he could make (or
waive) the statement himself, retaining hispro se status, or allow George to
make the statement, relinquishing his pro se status. Faced with waiving his
opening statement, Gmez allowed George to take over his representation and
to conduct his defense.

12

Nor is there merit to Gmez's claim that the court should have granted a

continuance on the morning of trial,sua sponte, to give him additional time to

prepare, or alternatively, allowed a hybrid representation arrangement under
which George could make the opening statement before allowing Gmez to
resume his self-representation. See United States v. Betancourt-Arretuche, 933
F.2d 89, 95 (1st Cir.1991) (discussing both the court's discretion to permit
hybrid representation and the relevance of timeliness of requests for pro se
representation and/or a continuance).
13

The default statutory maximum for conspiracy to possess with intent to

distribute heroin in violation of 21 U.S.C. 841(a), the crime specified in
Count II of the superseding indictment, is twenty yearsSee Perez-Ruiz, 353
F.3d at 15. Because the superseding indictment alleged 975 grams of heroin, a
conviction had the potential to trigger a sentence above the default maximum.
See 21 U.S.C. 841(b)(1)(B)(i) (providing a 40-year maximum sentence for
violations involving 100 grams or more of heroin). For a conviction to actually
trigger the higher statutory maximum, however, the jury had to find beyond a
reasonable doubt that the conspiracy was responsible for at least 100 grams of
heroin. See Perez-Ruiz, 353 F.3d at 15.

14

Gmez asserts that the district court could have avoided the alleged
constructive amendment by explaining to the jury that its finding on drug
quantity was relevant only to sentencing. Gmez failed to preserve an objection
to the jury instructions, in which the court properly told the jury that it should
answer the drug quantity question only if it found that Gmez was guilty.
Gmez did not object to the instruction after it was given. Moreover, when the
court asked for input on a response to the jury's note about "the importance of
100 grams of heroin," Gmez agreed that no additional explanation regarding
the significance of the drug quantity was necessary. Even if the instruction that
he suggests on appeal would have been useful in avoiding jury confusion, the
court's failure to give it certainly was not reversible error

15

The court explained that "[t]he only evidence in this case about the relationship
between Gmez and Sarruco is that there was no relationship. That Sarruco did
not know Gmez, never had met Gmez, wouldn't recognize Gmez, didn't
know who Gmez was. Didn't have any care who showed up at the door. And
Sarruco is the one who possessed [the heroin]And this is framed not as a
conspiracy, but as he aided and abetted Sarruco. So this question is, what did
he do to aid and abet Sarruco's possession." (Emphasis added.)

16

Specifically, the court noted that Gmez was "part of the distributive chain" but
that "it's a different matter to say he possessed [the heroin] with intent to
distribute. He tried to, he would have had he not been arrested quickly. It was
an attempted possession, probably a conspiracy, but none of that has been

charged."
17

We note that, even if we were to reach the Sixth Amendment claim, its fate
would almost certainly mirror the fate of the Fifth Amendment due process
claim, which requires us to consider some of the same factors

18

The government explained on appeal that it did not realize until the end of the
first trial that the offenses were more properly charged as conspiracies than as
substantive drug crimes. We have no reason to doubt the government's
characterization of this delayed realization as an innocent mistake

19

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)
and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004) were two of the cases that led to the Booker holding.