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United States Court of Appeals for the Second Circuit
December 17, 2004, Argued ; May 3, 2005, Decided
Docket No. 04-1956-cr
[*120] MESKILL, Circuit Judge:
Defendant-Appellant Evelyn Gonzalez was convicted following a jury trial in the United States District Court for the Southern District of New York, Duffy, J., of participating in a conspiracy to possess and distribute cocaine in violation of 21 U.S.C. §§ 841 and 846. On appeal, [**2] Gonzalez seeks a new trial, arguing that the district court improperly precluded jury instructions on the defense of coercion or duress and the single transaction rule. She also claims that under the rule of lenity the district court erred in imposing a sentence premised on a drug quantity exceeding that found by the jury. For the reasons that follow, we affirm the district court's jury instructions and United States Sentencing Guidelines calculations. However, in light of United States v. Booker, 160 L. Ed. 2d 621, U.S. , 125 S. Ct. 738 (2005) and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), we remand for the limited purpose of affording the district court an opportunity to consider whether to resentence.
Gonzalez was convicted of participating in a conspiracy to distribute cocaine from New York City to Delaware. The evidence presented at trial, particularly as it bears on Gonzalez's appellate claims that the district court improperly instructed the jury, consisted of the following.
Detective John Barry of the New York City Police Department (NYPD) testified that, through court-authorized wiretaps [**3] and surveillance, the NYPD monitored the activities of Jose Padua, Gonzalez and her "common law husband," Arquimedes Morban. On July 6, 2001, the NYPD arrested [*121] Morban as he transported two kilograms of cocaine in his car.
Gonzalez, who was the sole defense witness, claimed that before her husband's arrest she only engaged in drug activities when she "acted as a translator" for Morban during a single telephone call. 1 However, Gonzalez testified that her involvement escalated after Morban's arrest because Padua threatened to kill her and her family if her husband's drug debts were not repaid. These threats were the basis of Gonzalez's putative duress and coercion defenses.
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407 F.3d 118 *; 2005 U.S. App. LEXIS 7607 **
UNITED STATES OF AMERICA, Appellee, v. EVELYN GONZALEZ, Defendant-Appellant, RAFAEL GUZMAN-CASTILLO and ARQUIMEDES MORBAN, Defendants.
Prior History: [**1] Defendant-Appellant appeals from a judgment of the United States District Court for the Southern District of New York, Duffy, J., convicting her, following a jury trial, of conspiracy to possess and distribute cocaine. Judgment of conviction affirmed and case remanded for further proceedings consistent with United States v. Booker, U.S. , 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).
United States v. Morban, 96 Fed. Appx. 769, 2004 U.S. App. LEXIS 9282 (2004)
district court, Guidelines, sentencing, lenity, duress, ambiguity, coercion, single transaction, calculation, cocaine, quotation, arrest, marks, jury instructions
Criminal Law & Procedure, Defenses, Coercion & Duress, Trials, Burdens of Proof, Defense, General Overview, Jury Instructions, Particular Instructions, Theory of Defense, Inchoate Crimes, Conspiracy, Evidence, Weight & Sufficiency, Controlled Substances, Delivery, Distribution & Sale, Constitutional Law, Fundamental Rights, Criminal Process, Right to Jury Trial, Sentencing Guidelines, Departures From Guidelines, Sentencing, Imposition of Sentence, Evidence, Statutory Maximums, Factors, Appeals, Ranges, Remand & Remittitur, Juries & Jurors, Province of Court & Jury, Sentencing Issues, Governments, Legislation, Interpretation, Interpretation, Rule of Lenity