United States v. Gomes
2011 U.S. App. LEXIS 7560
1st Cir.2011Background
- Gomes convicted in Oct. 2008 on conspiracy to distribute crack and two counts of sale within 1,000 feet of a school and aiding/abetting.
- Gomes allegedly conspired with Alex Curet to distribute crack; two sales on Sept. 25 and Oct. 3, 2007, involved a cooperating witness (CW).
- Gomes reportedly drove and/or acted as lookout; in Sep. sale, CW used hidden recording; Gomes filmed in driver's seat.
- During Oct. sale, CW’s car carried hidden cameras; Fitzgerald testified Gomes left a car Gomes had driven and surveilled the CW.
- Defense argued Gomes did not handle drugs or money; no incriminating statements by Gomes.
- Gomes challenged government witness questioning and closing arguments as improper vouching; all counts resulted in conviction and 78-month sentence; appeal follows.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether cross-examination questions constituted vouching | Gomes | Gomes | Not vouching; questions were explanatory, not asserting personal belief. |
| Whether closing remark constituted vouching | Gomes | Gomes | Crossed line into vouching; reviewed for plain error; affirmed without reversal. |
| Preservation and standard of review | Gomes | Gomes | Objection not preserved; plain-error standard applied and not met. |
Key Cases Cited
- United States v. Castro-Davis, 612 F.3d 53 (1st Cir. 2010) (prosecutor vouching—improper when personal belief implied)
- United States v. Thiongo, 344 F.3d 55 (1st Cir. 2003) (improper vouching concepts; distinction from questions)
- United States v. Manning, 23 F.3d 570 (1st Cir. 1994) (vouching context and risk to fairness)
- United States v. Perez-Ruiz, 353 F.3d 1 (1st Cir. 2003) (prosecutor credibility concerns; government evidence not to substitute for witness)
- United States v. Santana-Perez, 619 F.3d 117 (1st Cir. 2010) (vouching and witness credibility standards)
- United States v. Gentles, 619 F.3d 75 (1st Cir. 2010) (prosecutor vouching and evidentiary impact)
- United States v. Flores-De-Jesus, 569 F.3d 8 (1st Cir.) (vouching considerations and safeguards)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error review framework)