2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-8-2014

USA v. Axel Gomez

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-3715

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 13-3715

_____________

UNITED STATES OF AMERICA

v.

AXEL GOMEZ,

 Appellant 

_____________

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-10-cr-00321-001

District Judge: The Honorable Gene E. K. Pratter

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

July 7, 2014

Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges

(Filed: August 8, 2014)

 

_____________________

OPINION

_____________________

SMITH, Circuit Judge.
2

Following a jury trial in the United States District Court for the Eastern 

District of Pennsylvania, Axel Gomez was convicted of various crimes, including 

21 U.S.C. § 841 (distribution of cocaine and heroin), 21 U.S.C. § 846 (conspiracy), 

18 U.S.C. § 924(c) (possession of a firearm in furtherance of drug trafficking 

offense), and 18 U.S.C. § 922(g) (possession of a firearm by a convicted felon). 

On appeal, Gomez challenges these convictions on two grounds: (1) that police 

violated his Fourth Amendment rights by using pen registers and trap and trace 

devices without a warrant, and (2) that the evidence adduced at trial was 

insufficient to sustain a conviction for conspiracy under 21 U.S.C. § 846.

1

 For the 

reasons that follow, we will affirm the judgment of the District Court. 

I.

The DEA began investigating Gomez for drug distribution in 2009. In May 

2009, the DEA arranged the sale of 20 grams of heroin from Gomez to a 

government informant. This informant provided the DEA with the number to 

Gomez’s cellular telephone, and from July 9, 2009, to at least August 18, 2009, the 

 

1 Gomez raises two other issues, but acknowledges that they are foreclosed by 

Almendarez-Torres v. United States, 523 U.S. 224 (1998), and United States v. 

Singletary, 268 F.3d 196 (3d Cir. 2001), and presents them only for purposes of 

preservation. They are: (1) his Fifth/Sixth Amendment rights were violated when he was 

exposed to greater punishment based on a putative prior conviction that was neither 

charged in the indictment nor proved to the jury beyond a reasonable doubt; and (2) the 

Commerce Clause does not authorize federal regulation of firearm possession based 

solely on the gun’s one-time travel in interstate commerce. 
3

DEA used a pen register2and a “trap and trace” device3to monitor this phone’s 

activity pursuant to court orders issued under 18 U.S.C. § 3123. These devices 

allowed the DEA to record a large amount of call data, such as the telephone 

numbers dialed by Gomez, the telephone numbers of persons who called Gomez, 

and the time of day and duration of these communications. Importantly, all of this 

information was disclosed to Gomez’s cell phone carrier, Sprint Corporation, when 

the calls were placed. This call data revealed that Gomez regularly communicated 

with suspected drug traffickers and individuals using prepaid phones, which 

suggested that Gomez was involved in the distribution of illegal drugs. During this 

period, the DEA also successfully arranged and recorded multiple drug purchases 

from Gomez to confidential informants.

Using the call data and the evidence obtained through the undercover 

purchases, the DEA obtained an order for a wiretap and began intercepting and 

recording Gomez’s cell phone conversations on August 24, 2009. On September 

12, 2009, Gomez abruptly stopped using the tapped phone. A confidential 

informant provided the DEA with Gomez’s new cell phone number and the DEA 

 

2 A pen register records outgoing dialing information from the subject’s phone (i.e., 

what numbers the subject dialed, when he dialed them, whether the call was connected, 

and the duration of the call). See 18 U.S.C. § 3127(3) (defining pen register).

3 A “trap and trace” device records incoming dialing information to the subject’s 

phone (i.e., when the caller dialed the subject’s number, whether the call was connected, 

and the duration of the call). See 18 U.S.C. § 3127(4) (defining trap and trace device).
4

obtained authorization for a wiretap for the new phone. Both wiretaps yielded

additional evidence that Gomez was engaged in the distribution of illegal drugs. 

Using all of the foregoing evidence, the DEA obtained and executed a search 

warrant for Gomez’s apartment, where they recovered almost $6,000 in cash, drug 

packaging materials and a digital scale, and a loaded .40 caliber handgun with an 

obliterated serial number. Thereafter, Gomez was indicted on charges of 

distribution of controlled substances, conspiracy, and possession of a firearm in 

connection with drug trafficking.

Prior to trial, Gomez moved to suppress the introduction of much of the 

foregoing evidence, arguing that the DEA violated his Fourth Amendment rights 

by engaging in extensive call pattern surveillance without a warrant. The District 

Court denied this motion, concluding that Gomez’s argument was squarely

foreclosed by Smith v. Maryland, 442 U.S. 735 (1979).

At trial, Government cooperators Raphael Pagan and Ramon Sanchez 

testified that they sold large quantities of heroin to Gomez on a regular basis. 

Importantly, they testified that they always sold Gomez heroin on credit and were 

not paid until after he distributed the drugs to his customers. They also testified 

that Gomez occasionally sold them cocaine, and that they had sometimes helped 

Gomez cook crack cocaine.

The jury returned a guilty verdict on all counts and the District Court 
5

sentenced Gomez to a term of 25 years’ imprisonment. This timely appeal 

followed.

II.4

Gomez first argues that the DEA’s prolonged warrantless use of a pen 

register and trap and trace device violated his privacy rights under the Fourth 

Amendment. We agree with the District Court that this argument is foreclosed by 

Smith. Gomez provided a third party—in this case, Sprint—with all the data that 

the DEA obtained through the use of the pen register and trap and trace device. In 

so doing, Gomez abandoned his privacy interest in this data because he “assumed 

the risk that the information would be divulged to police.” Smith, 442 U.S. at 745. 

Although Justice Sotomayor has urged the Court to reconsider Smith’s holding that 

“an individual has no reasonable expectation of privacy in information voluntarily 

disclosed to third parties,” United States v. Jones, 132 S. Ct. 945, 957 (2012) 

(Sotomayor, J., concurring), we remain bound by Smith until a majority of the 

Court endorses this view.5 

 

4 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction 

under 28 U.S.C. § 1291. We exercise plenary review over a District Court’s legal 

conclusions with respect to a motion to suppress. United States v. Perez, 280 F.3d 318, 

336 (3d Cir. 2002). When reviewing a challenge to the sufficiency of the evidence, “we 

must view the evidence in the light most favorable to the government, and will sustain the 

verdict if any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)

(internal quotation marks and citations omitted). 

5

In the proceedings below, Gomez conceded that his position was “contrary to” 

Smith, but cited Justice Sotomayor’s concurrence in Jones for the proposition that “Smith

is antiquated and must be reconsidered.” J.A. 60. Gomez presents a different argument 
6

Gomez next argues that the evidence presented at trial did not support his 

conspiracy conviction. Specifically, he argues that the evidence demonstrated, at 

most, a “wholesale buyer-seller relationship” between himself and the 

Government’s cooperating witnesses—not a conspiracy. Gomez concedes that he

did not raise this issue in the District Court and, accordingly, that plain error is the 

proper standard of review in this appeal. See United States v. Mornan, 413 F.3d 

372, 381 (3d Cir. 2005).

Viewing the evidence in the light most favorable to the Government, we 

conclude that a reasonable jury could have found the essential elements of a

conspiracy beyond a reasonable doubt. Pagan and Sanchez testified that they 

always provided Gomez with heroin on credit. In the context of large-scale drug 

distribution, this fact alone provided the jury with sufficient evidence of a 

 

on appeal. Instead of urging us to overrule Smith’s “third party doctrine,” Gomez 

contends that this doctrine has already been “cabined” by five Justices of the Supreme 

Court—a number he reaches by combining Justice Sotomayor’s and Justice Alito’s 

concurrences in Jones. Appellant’s Br. 27, 31. As Gomez did not raise this argument 

before the District Court, it is waived. Holk v. Snapple Beverage Corp., 575 F.3d 329, 

336 (3d Cir. 2009). 

In any event, we reject Gomez’s contention that the concurrences in Jones 

“cabined” Smith. Justice Alito’s concurrence did not explicitly seek to limit Smith, and 

indeed relied heavily on the fact that drivers of automobiles do not expect third parties to 

possess detailed, long-term data regarding their location. Jones, 132 S. Ct. at 964 (Alito, 

J., concurring). By contrast, cell phone users do expect service providers to possess 

detailed, long-term data regarding the numbers they dial because this information is 

necessarily conveyed in the course of connecting a call. Smith, 442 U.S. at 743. By 

disclosing this data, cell phone users, unlike drivers of automobiles, “assume[] the risk” 

that a third party will convey it to law enforcement. Id. at 744. Therefore, we are not 

persuaded that the two concurrences in Jones have limited Smith to short-term call 

monitoring. 
7

conspiracy. United States v. Iglesias, 535 F.3d 150, 156 (3d Cir. 2008). 

Additionally, these witnesses testified that Gomez sold them cocaine, and that they 

helped Gomez cook crack cocaine. Accordingly, we see no reason to disturb 

Gomez’s conspiracy conviction. 

In light of the foregoing analysis, we will affirm the judgment of the District 

Court.