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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12089
________________________
D.C. Docket No. 1:17-cr-20216-JAL-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRIGITH DAYANA GOMEZ,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 14, 2020)
Before JORDAN and JILL PRYOR, Circuit Judges, and COOGLER, * District
Judge.
COOGLER, District Judge:
*
Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama,
sitting by designation.
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Brigith Dayana Gomez appeals her convictions, following a jury trial, for
one count of conspiracy to transmit an interstate extortionate communication, in
violation of
18 U.S.C. §§ 371 and 875(d); three counts of transmission of
extortionate communications, in violation of
18 U.S.C. §§ 875(d) and 2; and one
count of traveling in interstate or foreign commerce with intent to promote the
unlawful activity of extortion, in violation of
Fla. Stat. § 836.05, and thereafter
performing acts to promote that unlawful activity, in violation of
18 U.S.C. §§
1952(a)(3) and 2.
The evidence at trial showed that from approximately February 18, 2017,
through March 7, 2017, Gomez and her co-defendant, Carolina Del Carmen
Roldan, threatened to release to the media personally damaging photos and videos
of Ivan Gabriel Aguilera, the son of the famous, now-deceased Mexican singer
Juan Gabriel, unless Aguilera paid them $50,000. Gomez and Roldan coordinated
their extortionate plan as documented in text messages and then sent the threat via
text to Aguilera. Aguilera showed the threat to his lawyer, who engaged in a series
of recorded communications and negotiations with Roldan and Gomez. Ultimately,
Aguilera and his lawyer alerted the FBI; the FBI recorded additional
communications; Gomez flew from Los Angeles to Miami to collect the $50,000;
and Gomez was arrested. Gomez consented to a search of her cell phone, which
revealed substantial communications confirming the conspiracy.
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On appeal, Gomez challenges the sufficiency of the evidence to support her
convictions and the failure of the district court to give a jury instruction she
requested regarding the
18 U.S.C. §§ 1952(a)(3) and 2 charge. After careful review
and having had the benefit of oral argument, we conclude that the jury had
sufficient evidence to convict Gomez on all five counts and that the district court’s
ruling on the jury instruction was correct. We thus affirm.
I.
A.
In its case-in-chief at trial, the government undertook to establish the
following. Beginning in approximately 2014, Aguilera partied with a group of
women, including Roldan and Gomez, while he accompanied his father on his
concert tours. Although he was married, Aguilera had affairs and exchanged
sexually explicit photos with various women.
When Gabriel died unexpectedly in August 2016, Aguilera began receiving
intense media coverage, as he was reported to be the sole heir of his father’s
fortune. Shortly thereafter, Gomez, Roldan, and other women in their social group
began to discuss via text messages selling images and videos of Aguilera to the
media. The women exchanged pictures and videos of Aguilera naked and kissing
women. Gomez specifically wrote that they should describe to the media that
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Aguilera was exploiting his deceased father to maintain his lifestyle of “sex,
extravagance [and] women.”
Ultimately, Gomez and Roldan decided to attempt an extortionate plan
without the other women. Hoping to capitalize on Aguilera’s increased visibility,
they timed their threatening communication with Aguilera to coincide with a large
tribute concert that was to be held on February 18, 2017, to honor Gabriel’s legacy.
On the morning of the concert, Gomez instructed Roldan to send Aguilera a text
message threatening to reveal photos and videos to the media unless they were
paid. Gomez further directed Roldan to attach videos “so that he sees that we are
not playing games.”
Just before the concert was to begin on February 18, Aguilera received a text
message on his cell phone that read:
Hello Ivan, how are you? You know, we have some information
on you which would be very interesting for the media, for social
media, as well as for your wife and your wife’s brother. We are close
to negotiating this information with Telemundo, but we decided to
contact you first. There’s no point in reminding you not to try to do
anything against the person receiving the exchange because someone
else has everything and will disclose it to the public, meaning this is
between you and me. The issue is that we have some very
compromising videos and photos of you and your brother-in-law in
Las Vegas; it would be a shame to reveal how you enjoy your father’s
inheritance. May he rest in peace. I will send you a portion of what I
have, only a portion because I have a lot more photos and videos. Do
we negotiate with you or do you prefer that I go to the media?
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Attached to the text message were four videos showing Aguilera partying with a
group of women, including Gomez and Roldan.
Aguilera viewed the message as a threat to his reputation, his marriage, and
his family’s business. He told his wife about the threat, and she echoed his fear that
their family’s business would suffer. Aguilera showed the message to his lawyer,
Guillermo Pous, and they decided that Pous would try to resolve the situation by
responding that he was interested in negotiating. Meanwhile, Roldan told Gomez
that she had sent the text as directed, and they both agreed not to “back down.”
On February 20, 2017, Pous and Roldan spoke on the phone three times,
ultimately reaching a deal whereby Aguilera would pay $50,000 in exchange for
Roldan and Gomez not releasing the photos and videos to the media. Roldan
suggested to Pous that she was working for an unidentified “man” and refused to
give him her full name, going by Carmen alone.
Over the next two weeks, Roldan spoke on the phone with Pous nearly
twenty times, with Gomez often directing Roldan’s strategy. As Pous attempted to
buy time so that he could inform law enforcement authorities, Roldan and Gomez
became increasingly aggressive in tone. For example, on February 28, Roldan told
Pous that the “man” would release the materials to the media the next day.
During this time Gomez was also communicating with her sister via text
messages and phone calls, seeking advice on how to go about obtaining the money.
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In those communications, Gomez described what she and Roldan were doing as
“blackmailing” Aguilera and referred to herself and Roldan as “swindlers.”
Gomez’s sister warned Gomez not to reveal her identity or to collect the money in
person because that could mean going to “jail” for “extortion.” Gomez’s sister also
recommended that Gomez and Roldan request wire transfers to two accounts so as
not to raise red flags with any banks. However, Gomez told her sister that she
wanted to fly to Miami herself to pick up the cash because getting another person
involved to handle those aspects of the plan would mean they would have to split
the profits further.
On March 1, 2017, Gomez and Roldan traveled from Los Angeles to the
Telemundo television network in Miami to try to sell the photos and videos.
Telemundo offered only $5,000, so Gomez decided she would give Pous a few
more days to come up with the $50,000.
Pous ultimately reported Gomez and Roldan’s threats to FBI agents, who
met with Aguilera and his wife and facilitated additional recorded phone calls. On
March 6, 2017, Pous and Roldan spoke on the phone twice. Roldan revealed her
full name and told him that she was working for Gomez. Roldan also gave Pous
Gomez’s phone number so Pous could call Gomez directly to coordinate Gomez’s
travel to Miami to collect the money. When Pous called Gomez later that day,
Gomez said that she had flown to Miami on her own expense the week before with
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the intent of getting paid, and therefore that she would return to Miami a second
time only if Pous paid for her flight and guaranteed payment. Pous agreed,
purchasing a plane ticket in Gomez’s name from Los Angeles to Miami for the
next day and sent her an email confirming the details. Gomez then took the flight
as planned and was arrested by the FBI about twenty minutes after she arrived at
the Miami airport.
Following her arrest, Gomez consented to a search of her cell phone. The
FBI found extensive written and audio communications with Roldan establishing
the conspiracy dating back to September 2016.
B.
On March 23, 2017, a Southern District of Florida grand jury returned an
indictment charging Gomez and Roldan, in Count 1, with conspiracy to transmit an
interstate extortionate communication, in violation of
18 U.S.C. §§ 371 and 875(d);
in Counts 2-4, with transmission of extortionate communications, in violation of
18
U.S.C. §§ 875(d) and 2; and in Count 5, with traveling in interstate or foreign
commerce with intent to promote the unlawful activity of extortion, in violation of
Fla. Stat. § 836.05, and thereafter performing acts to promote that unlawful
activity, in violation of
18 U.S.C. §§ 1952(a)(3) and 2.
Roldan pled guilty to Count 1 in exchange for the dismissal of the other
counts against her. Gomez’s trial began on January 24, 2018. The government
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called Aguilera, his wife, Pous, and four FBI special agents involved in the
investigation. Numerous audio and text messages and emails were admitted. The
defense called two witnesses: Ricdamis Garcia, the producer for Telemundo who
met with Gomez and Roldan during the conspiracy, and Ivonne Solorzano, one of
the women with whom Aguilera had an affair. Gomez attempted to establish
through their testimony and through cross-examination of government witnesses
that she was not guilty of extortion because Aguilera’s reputation was already
tarnished and that she played a minimal role in the offense.
Gomez was found guilty as charged of each count of the indictment. Post-
verdict, Gomez, reiterating the arguments she asserted after the close of the
government’s case-in-chief, moved unsuccessfully for a judgment of acquittal.
On May 9, 2018, the district court sentenced Gomez to 20 months’ and
fifteen days’ imprisonment as to Counts 1-5, all to run concurrently, followed by
two years’ supervised release. Judgment was entered the following day. This
appeal followed.
II.
A.
Gomez challenges the sufficiency of the evidence on all counts of
conviction. This Court reviews de novo the sufficiency of evidence, accepting all
reasonable inferences in favor of the jury’s verdict. United States v. Diaz-Boyzo,
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432 F.3d 1264, 1269 (11th Cir. 2005) (per curiam). “The evidence is sufficient so
long as a reasonable trier of fact, choosing among reasonable interpretations of the
evidence, could find guilt beyond a reasonable doubt.”
Id. (quoting United States v.
Pineiro,
389 F.3d 1359, 1367 (11th Cir. 2004)). We conclude that the evidence
presented at trial was sufficient to convict Gomez on all five counts of the
indictment.
Count 1 charged Gomez with knowingly and willfully conspiring to extort
money from Aguilera by use of interstate communications, in violation of
18
U.S.C. §§ 371 and 875(d). The indictment specified the overt acts as including the
transmission of the first threat via text message to Aguilera on February 18,
Gomez’s call on March 6 to Pous to arrange her travel to Miami, and Gomez’s
flight from Los Angeles to Miami on March 6 to collect the cash. To prove the §
371 conspiracy, the government was required to establish “(1) the existence of an
agreement to achieve an unlawful objective; (2) the defendants’ knowing and
voluntary participation in the agreement; and (3) the commission of an act in
furtherance of the agreement.” United States v. Adkinson,
158 F.3d 1147, 1153
(11th Cir. 1998) (emphasis removed).
The government presented overwhelming evidence of Gomez’s guilt at trial,
much of it in the form of Gomez’s own words in written text messages and
recorded calls establishing the extortionate plot and her willing participation in it.
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Gomez disclaims any criminal intent and attempts to minimize her role in the
scheme, but the evidence showed that Gomez directed and assisted Roldan
throughout the conspiracy. Gomez instructed Roldan on what to say in the first text
message Roldan sent to Aguilera on February 18, after which the two agreed they
were not “back[ing] down,” and over the next two weeks, Gomez stayed in close
contact with both Roldan and her sister via text, discussing how to accelerate the
timeline for payment. On March 6, Gomez spoke directly with Pous to finalize the
deal and then traveled to Miami to collect the extortionate demand. Additionally,
Aguilera, his wife, and Pous testified at length that they considered the text
messages and other communications true threats to the reputation and livelihood of
Aguilera and his family. The evidence clearly supports the guilty verdict on Count
1.
The record also supports the jury’s verdicts of guilt on Counts 2, 3, and 4,
each of which charged Gomez with transmitting an extortionate threat in
interstate or foreign commerce, in violation of
18 U.S.C. §§ 875(d) and 2. Section
875(d) provides:
Whoever, with intent to extort from any person, firm, association, or
corporation, any money or other thing of value, transmits in interstate
or foreign commerce any communication containing any threat to
injure the property or reputation of the addressee or of another or the
reputation of a deceased person or any threat to accuse the addressee
or any other person of a crime, shall be fined under this title or
imprisoned not more than two years, or both.
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18 U.S.C. § 875(d). To prevail under a theory of aiding and abetting pursuant to §
2, the government was required to prove that “(1) the substantive offense was
committed by someone; (2) the defendant committed an act which contributed to
and furthered the offense; and (3) the defendant intended to aid in its commission.”
United States v. Seabrooks,
839 F.3d 1326, 1333 (11th Cir. 2016) (quoting United
States v. Camacho,
233 F.3d 1308, 1317 (11th Cir. 2000)).
Count 2 is based upon the first text message that Roldan sent to Aguilera on
February 18 threatening to release images and videos if Aguilera did not pay.
Although Roldan sent the message, the evidence of Gomez’s actions is sufficient to
sustain Gomez’s conviction on this count under the aiding and abetting theory.
Before Roldan sent the message, she and Gomez discussed their strategy and the
substance of the message in detail and confirmed to each other after Roldan sent
the message that they were not “back[ing] down.”
Count 3 is based on three recorded calls on February 20 between Roldan and
Pous, in which Roldan pretended to be working for an unidentified “man”—whom
she later revealed was in fact Gomez—and specified that “he” wanted $50,000 in
exchange for not turning over photos and videos of a compromising nature to the
media. The evidence showed that Roldan and Gomez remained in close contact via
text while these calls were happening. Also during this period, Gomez specifically
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discussed with her sister the mechanics of the plan. The record thus contains ample
evidence of Gomez’s knowing facilitation of the February 20 threats.
Count 4 is based on three calls on March 6—the first two between Pous and
Roldan and the third between Pous and Gomez. In those final calls, Roldan
revealed to Pous her own and Gomez’s identities. Then, Gomez told Pous that she
would return to Miami a second time only if Pous paid for her flight and
guaranteed payment. Gomez asserts that she was merely making travel
arrangements and nothing she said could be interpreted as a threat, but reasonable
jurors could disagree and instead find that the purpose of these calls was to finalize
the extortionate agreement.
Count 5 charged Gomez with violating the Travel Act, which, among other
things, makes it a crime to “travel[] in interstate or foreign commerce . . . with
intent to . . . promote, manage, establish, carry on, or facilitate the promotion,
management, establishment, or carrying on, of any unlawful activity, and thereafter
[to] perform[] or attempt[] to perform [an act of unlawful activity].”
18 U.S.C. §
1952(a)(3). The statute lists a number of predicate crimes that qualify as unlawful
activities, including “extortion, bribery, or arson” in violation of state or Federal
law.
Id. § 1952(b)(2). The district court instructed the jury according to this
Court’s pattern offense instruction, which listed the elements of
18 U.S.C.
§1952(a)(3) as follows: (1) Gomez traveled in interstate or foreign commerce on or
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about the dates and between the places described in the indictment; (2) Gomez
traveled with the specific intent to promote, manage, establish or carry on an
unlawful activity; and (3) while traveling, Gomez knowingly committed an act to
promote, manage, establish, or carry on an unlawful activity. See Eleventh Circuit
Pattern Jury Instructions (Criminal Cases), 71 (2013). The jury was further
instructed that “unlawful activity” includes “any business enterprise involving
extortion,” and that “[u]nder [Florida] law [making an extortionate threat to a
person’s reputation] is unlawful.” See
id.
Although Gomez characterizes her flight to Miami to collect the $50,000 as
isolated and innocuous, reasonable jurors could instead infer from the evidence
that over the course of several weeks, Gomez and Roldan threatened Aguilera with
the release of compromising images if he did not pay, and that Gomez flew across
the country at Pous’s expense with the specific criminal intent to collect the
demand in person. We are satisfied that the jury’s verdict as to Count 5 is well
supported by the evidence.
B.
Gomez next contends that the district court erred in refusing to instruct the
jury in accordance with instructions she requested. This Court reviews the district
court’s refusal to give a requested jury instruction for abuse of discretion. United
States v. Jordan,
582 F.3d 1239, 1247 (11th Cir. 2009). “Such refusal constitutes
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reversible error if: ‘(1) the requested instruction was a correct statement of the law,
(2) its subject matter was not substantially covered by other instructions, and (3) its
subject matter dealt with an issue in the trial court that was so important that failure
to give it seriously impaired the defendant’s ability to defend [herself].’”
Id. at
1247–48 (quoting United States v. Martinelli,
454 F.3d 1300, 1309 (11th Cir.
2006)). We find no abuse of discretion here.
Gomez’s requested instruction related to the applicable mens rea under
18
U.S.C. § 1952(a)(3), the Travel Act violation charged in Count 5. Gomez’s
argument at the charge conference was that by referencing Florida’s extortion
statute,
Fla. Stat. § 836.05 (2014), in the indictment, the government imposed on
itself the burden of proving not only the mens rea required under § 1952(a)(3)—
knowingly traveling with the specific intent to promote the unlawful activity of
extortion—but also that she acted with the state-specific mens rea of “actual
malice,” which one Florida court had found necessary under
Fla. Stat. § 836.05.1
The language Gomez proposed adding to the instruction was as follows:
[U]nder Florida law, making an extortionate threat to reputation is
unlawful. However, Florida law requires that the government prove
1
Fla. Stat. § 836.05 provides, in part: “Whoever, either verbally or by a written or printed
communication, . . . maliciously threatens an injury to the . . . reputation of another, or
maliciously threatens to expose another to disgrace, or to expose any secret affecting another . . .
with intent thereby to extort money or any pecuniary advantage whatsoever . . . shall be guilty of
a felony . . . .” Florida’s Fifth District Court of Appeal has defined the term “maliciously” under
that statute as acting with “ill will, hatred, spite, or evil intent.” Calamia v. State,
125 So. 3d
1007, 1010 (Fla. Dist. Ct. App. 2013).
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beyond a reasonable doubt that the defendant made the extortionate
threat with actual malice. That means the government must prove the
defendant made the threat with ill will, hatred, spite, or an evil intent.
The district court denied Gomez’s request, instead instructing the jury using this
Court’s pattern offense instruction, which specified that “unlawful activity”
includes “extortion” and “[u]nder Florida law, making an extortionate threat to a
person’s reputation is unlawful.”
The district court did not abuse its discretion in declining to give Gomez’s
requested instruction because it was not a correct statement of the law. Jordan,
582
F.3d at 1247. In a case where the relevant unlawful activity underlying the Travel
Act violation was arson, the former Fifth Circuit rejected a defendant’s argument
that the district court erred by not providing the jury with the state law definition of
the offense. United States v. Conway,
507 F.2d 1047, 1051–52 (5th Cir. 1975)
(“There was sufficient evidence upon which the jury could find that the appellant
traveled in interstate commerce with intent to bomb and/or burn a Maryland
building. There is no requirement that the jury be instructed on the Maryland
definition of arson and there is no reversible error here.”). 2 In so holding, the court
relied upon the United States Supreme Court’s decision in United States v.
Nardello,
393 U.S. 286 (1969), which addressed the Travel Act’s prohibition
2
In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
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against extortion. Conway,
507 F.2d at 1051–52. The defendants in Nardello were
indicted for their participation in a scheme to obtain money from victims by threats
to expose alleged homosexual conduct.
393 U.S. at 287. The indictments charged
that the defendants traveled in interstate commerce to promote their activities,
which the indictments referred to as “the unlawful activity of blackmail, in
violation of the laws of the Common-wealth of Pennsylvania.”
Id. at 287–88. The
Pennsylvania statutes distinguished between “extortion” and “blackmail,” with
“extortion” applicable only to the conduct of public officials.
Id. at 288. The
defendants argued that the indictments were defective because they were not public
officials.
Id. The federal district court agreed and dismissed the indictments.
Id. On
direct appeal to the Supreme Court by the United States pursuant to
18 U.S.C. §
3731,
id. at 288–89, the Court “decline[d] to give the term ‘extortion’ [in § 1952(b)
such] an unnaturally narrow reading,” id. at 296. As the Court explained, so long
as the acts for which a defendant has been indicted fall within the generic term of
extortion as used in the Travel Act—which the Court defined as “obtaining
something of value from another with his consent induced by the wrongful use of
force, fear, or threats,” id. at 290—then such acts constitute a violation of the
Travel Act’s prohibition, regardless of the specific state label given to that
unlawful act. Id. at 296.
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We are bound by the holdings of Nardello and Conway. Accordingly, there
is no requirement that the jury be instructed on the state-specific definition of the
predicate crime. Conway,
507 F.2d at 1051–52; see also Martinelli,
454 F.3d at
1313–14 (drawing from Conway in rejecting similar claim in money laundering
context). “[T]he inquiry is not the manner in which States classify their criminal
prohibitions but whether the particular State involved prohibits the extortionate
activity charged.” Nardello,
393 U.S. at 295. Here, the district court properly
instructed the jury that Florida law prohibits making extortionate threats to one’s
reputation. No more was required of the district court.
III.
Accordingly, the judgment of the district court is
AFFIRMED.
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