United States v. Jimenez ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 29, 2000
________________________
THOMAS K. KAHN
CLERK
No. 98-5063
________________________
D.C. Docket No. No. 96-14015-CR-EBD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO RODRIGUEZ JIMINEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 29, 2000)
Before TJOFLAT, MARCUS and CUDAHY*, Circuit Judges.
_______________
*Honorable Richard D. Cudahy, U.S. Circuit Judge for the Seventh Circuit, sitting by
designation.
CUDAHY, Circuit Judge:
A federal jury convicted Alberto Jimenez of knowingly and intentionally
conspiring to possess with intent to distribute methamphetamine in violation of 21
U.S.C. § 846. The district court sentenced Jimenez to 262 months in prison. Prior
to the trial, Jimenez had moved to suppress, on various grounds, evidence obtained
through a wiretap and by the search of his residence. These motions were denied.
Jimenez appeals both the denial of these suppression motions and his sentence.
We affirm
I. Facts and Disposition Below
In early March of 1995, the United States Customs Service commenced an
investigation, in conjunction with the Highlands County Sheriff’s Office and other
law enforcement agencies, of the importation of methamphetamine from Mexico.
That investigation led them to suspect Alberto Jimenez, who during the time of the
investigation was living with his girlfriend Mary Evelyn Sims. From May 11 to
May 31, 1995, the agents and police maintained a valid wiretap on the telephone
line at 902 West Prairie Street in Avon Park, Florida. Jimenez and Sims lived at
that address, and the investigating officers intercepted about 1200 of their
conversations.
On May 27, 1995, the police arrested Jimenez in his car in nearby Frost
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Proof, Florida. When they searched his car, the police discovered six foil-wrapped
bricks of marijuana, a handgun and ammunition. Jimenez was released on bond
shortly after his arrest. The Sheriff’s Office then applied for a search warrant, and
the Highlands County Circuit Court authorized the search for evidence of
marijuana and methamphetamine possession at the 902 West Prairie Street
residence. When the agents and police executed the search warrant on May 29,
1995, both Jimenez and Sims were present, and Jimenez drew a gun from under a
mattress. The police safely disarmed Jimenez and searched the house. As a result
of that search, the agents seized a zippered “drug ledger” containing records of
methamphetamine sales, $5,677 in cash, several firearms, $14,500 in uncashed
payroll and travelers’ checks and a small amount of marijuana.
A little less than a year later, a federal grand jury indicted Jimenez and seven
others for knowingly and intentionally conspiring to possess with intent to
distribute methamphetamine in violation of 21 U.S.C. § 846, for money laundering
in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and § 1956(h), and for knowingly and
intentionally using a telephone in facilitation of a felony in violation of 21 U.S.C. §
843(b). Jimenez filed a motion to suppress evidence discovered at his home on
May 29, 1995, alleging that the search warrant affidavit was defective and did not
demonstrate probable cause, a motion to suppress wiretap evidence and a motion to
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suppress physical evidence alleging a violation of the “knock and announce” rule.
After conducting hearings, the federal magistrate judge recommended that the three
motions be denied. The district court adopted the magistrate judge’s report and
recommendations and denied Jimenez’s pretrial motions.
At trial, the government introduced about 33 of the recorded telephone
conversations into evidence. In two of the conversations, Sims made explicit
references to Jimenez’s physically abusing her. Other conversations contained
coded references to marijuana and methamphetamine transactions, and both
investigating officers and individuals who had conducted drug transactions with
Jimenez and Sims explained the meanings of the various code words. One of these
witnesses, Roger Fortner, testified extensively about drug transactions with Sims's
son, Wayne Elder, and his own direct dealings with Jimenez and Sims. Lucy
Hodge Parker testified that she bought methamphetamine from Sims and resold it
for a profit, but only after Jimenez gave Sims the initial permission to sell. Joseph
Parker testified that he was asked to follow Sims (as a guard) when she would
deliver methamphetamine to customers, which she could only do after Jimenez
gave her permission. The government introduced evidence of Jimenez's arrest for
marijuana and firearm possession on May 27, 1995. It also introduced the physical
evidence seized during the search of 902 West Prairie Street—including the “drug
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ledger” that contained detailed information about methamphetamine transactions
and was used to keep track of amounts owed by various buyers. The government
explained that Jimenez had drawn a gun on the police when they entered to search
the house.
The jury found Jimenez guilty of the methamphetamine conspiracy on
March 2, 1998, and on July 22, the district court conducted a sentencing hearing.
The probation officer determined that Jimenez distributed approximately 8.8
pounds of methamphetamine during the course of the conspiracy, and, in the
Presentence Investigation Report, assigned a base offense level of 34 under the
Sentencing Guidelines. The probation officer recommended a two-level increase
under Guidelines § 2D1.1(b)(1) because firearms had been seized from Jimenez’s
car and house. The probation officer also recommended a four-level increase
under § 3B1.1(a) for Jimenez’s supervisory role in the extensive operation. At
sentencing, Jimenez disputed his role in the enterprise, claiming that he was merely
a partner of Sims and had no control over the resale activities of the people to
whom they sold methamphetamine. The district court approved the firearm
enhancement and found that Jimenez had performed some supervision, adjusting
his offense level by two under § 3B1.1(c)—instead of four under § 3B1.1(a)—for
his supervision of Sims. The district court thus assigned a total offense level of 38,
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and it sentenced Jimenez to 262 months imprisonment. Jimenez appeals.
II. Discussion
On appeal, Jimenez raises three issues: (1) Did the district court err by
denying his motion to suppress the evidence seized during the search of the West
Prairie Street residence on May 29, 1995? (2) Did the district court abuse its
discretion by not excluding evidence of Jimenez’s uncharged marijuana and
firearm possession and by not excluding evidence of his physical abuse of Sims?
And (3) did the district court err by applying the two-level enhancement under §
3B1.1(c) of the Sentencing Guidelines. We address, and reject, each of these
claims in turn.
A. The Search Warrant
We review the district court's denial of Jimenez’s motion to suppress
evidence under a mixed standard of review. See United States v. Gil, 204 F.3d
1347, 1350 (11th Cir. 2000). We review the district court's findings of fact under
the clearly erroneous standard and the district court's application of law to those
facts de novo. See id. Jimenez first argues that the application for the warrant was
fatally deficient because it failed to establish the necessary nexus between him and
the residence to be searched. He apparently concedes that the application’s
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description of the place to be searched was sufficient to describe the house located
at 902 West Prairie Street in Avon Park, Florida, but he vociferously argues that
“there is a complete absence of any facts to support a finding that the residence
where Simms and Jimenez live and supposedly conduct their drug business is in
fact the house described in the Application.” Br. at 25 (emphasis in original).
While it is true that a warrant affidavit must show that there is a fair
probability that contraband or evidence of a crime will be found at the particular
place to be searched, see Illinois v. Gates, 462 U.S. 213, 238 (1983), Jimenez
overstates his case by claiming that there are no facts here establishing the
necessary nexus. The affidavit usually refers to the place to be searched as “their
residence”—referring to Jimenez and Sims—but it does not, as Jimenez points out,
provide facts that show that Jimenez and Sims lived there. Although the affidavit
never does demonstrate that Jimenez lives in that house, it didn’t have to because
there is one statement in the affidavit that clearly establishes the nexus between
902 West Prairie Street and evidence of a crime (regardless whether Jimenez
actually lived there): “The information indicates that Jimenez has secreted large
sums of currency in the residence and the currency is derived from the distribution
of methamphetamine and cannabis.” It is clear to us that “the residence” refers to
the house described in the warrant application, which, as we have noted, Jimenez
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has conceded is 902 West Prairie Street. We find that the affidavit shows the
required nexus—that there was a fair probability that contraband or evidence of a
crime would be found there—by demonstrating the link between Jimenez’s illegal
activity and the house.
Jimenez next argues that the affidavit in support of the application contains
“only the Affiant’s conclusions as to the evidence derived from the wiretap” and
fails “to provide any underlying facts” from which a probable cause determination
could have been made by the issuing judge. Br. at 18 (emphasis in original). The
paragraph Jimenez complains about states, in full:
During the past eighteen days your Affiant received information
from a Title III Wire intercept. The information obtained indicates
that Evelyn Sims and Alberto Jimenez are involved in the
transportation, distribution, and sales of Methamphetamine and
Cannabis on a large scale. The information indicates that Sims and
Jimenez conduct the methamphetamine and cannabis transactions at
their residence and also deliver the methamphetamine and cannabis to
their customers on a continual basis. The information indicates that
Sims and Jimenez keep records, logs, and ledgers detailing the
transactions along with debts owed them for methamphetamine and
cannabis by their customers at their residence. The information
indicates that Jimenez has secreted large sums of currency in the
residence and that the currency is derived from the distribution of
methamphetamine and cannabis. The information provided indicates
that Sims and Jimenez have taken stolen property, specifically
firearms as payment for methamphetamine and cannabis. On 05-27-
94 Your Affiant received information from the reliable source that
Jimenez was en route to the Frostproof area to pick-up narcotics and
return to Highlands County with them. The information resulted in a
Carrol search of Jimenez’s vehicle when he returned to Highlands
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county and the seizure of six pounds of Cannabis and the arrest of
Jimenez, who has since bonded out of jail. During the Carrol Search
of the vehicle a loaded 9mm semi-automatic pistol was located with
the narcotics. Your Affiant noted that the six pounds of Cannabis
were cut into one pound blocks and was comprised of tightly
compressed “bricks” which appeared to have been part of a larger
shipment.
R1:184 (attachment). Based on this paragraph, the task for the Highland County
Circuit Court judge was “simply to make a practical, common sense decision
whether, given all the circumstances set forth in the affidavit before him, including
the ‘veracity’ and the ‘basis of knowledge’ of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime will
be found in a particular place.” Gates, 462 U.S. at 238. The circuit judge found
that the affidavit established probable cause, and although we review that
determination de novo, we must “take care both to review findings of historical
fact only for clear error and to give due weight to inferences drawn from those
facts by resident judges and local law enforcement officers.” Ornelas v. United
States, 517 U.S. 690, 699 (1996).
In his argument that the affidavit failed to establish probable cause, Jimenez
analogizes the statements in the affidavit to the following: “I have information
which indicates that the defendant is a drug dealer and has drugs in his house, and
therefore there is probable cause to search.” Br. at 23. He also likens it to the
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affidavits found insufficient in Aguilar v. Texas, 378 U.S. 108, 109 (1964)
(“[a]ffiants have received reliable information from a credible person and do
believe that heroin” was being kept at a particular house), overruled by Illinois v.
Gates, 462 U.S. 213 (1983). Thus, Jimenez concludes, the warrant affidavit is too
conclusory and too unsubstantiated to permit the circuit judge to make an adequate
probable cause determination.
The affidavit is not nearly as conclusory as Jimenez argues. A truly
conclusory affidavit would have gone all the way and actually stated that probable
cause exists, like the first supposedly analogous example Jimenez uses. This
affidavit, at worst, summarizes the evidence gained through the wiretap. While it
would perhaps have been preferable for the affidavit to have detailed some
particular phone conversations, the affidavit states that those phone conversations
“indicate that” various drug activities were taking place; this is an objective
presentation of the information gained by the investigating officers. Nor does the
affidavit fail to specify the source of the information, as in the Aguilar example:
the affidavit clearly states that the wiretap was the source of the information, and
this circuit has recently noted that “[t]he fact that a wiretap was the basis for
gaining confidential information” lends reassurance as to the veracity of the
information. United States v. Glinton, 154 F.3d 1245, 1255 (11th Cir. 1998). We
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believe, therefore, that the affidavit was neither conclusory nor unsubstantiated and
provided an adequate, though perhaps not extensive, basis for the circuit court’s
determination that probable cause existed.
Jimenez’s final argument on this point is that the affidavit’s reference to his
arrest on “5-27-94” was “stale information” and could not provide probable cause.
Although Jimenez was actually arrested on May 27, 1995, the government
concedes that we must analyze the arrest’s contribution to probable cause as if
Jimenez had been arrested, as misstated in the affidavit, a year earlier in May of
1994. We can dispense with this argument easily because, even assuming that it
was stale, “such information is not fatal where the government’s affidavit updates,
substantiates, or corroborates the stale material.” United States v. Magluta, 198
F.3d 1265, 1272 (11th Cir. 1999) (quotation omitted). See also United States v.
Green, 40 F.3d 1167, 1172 (11th Cir. 1994); United States v. Harris, 20 F.3d 445,
450 (11th Cir, 1994). Here, the affidavit certainly updated and corroborated
Jimenez’s involvement with drugs based on information garnered from the
seventeen days of wiretap evidence.
In sum, given the statement in the affidavit about Jimenez’s past drug arrest,
corroborated by the summary of the recent information obtained from the wiretap,
there was a fair probability that Jimenez was involved with illegal activity and that
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evidence of that activity would be found at the house described in the warrant.
Accordingly, the search warrant was supported by probable cause, and the district
court properly denied Jimenez’s motions to suppress.1
B. Admitted Evidence
We review the district court’s ruling on admission of evidence for abuse of
discretion. See United States v. Maragh, 174 F.3d 1202, 1204 (11th Cir. 1999).
Jimenez first challenges the district court’s admission of the evidence of Jimenez’s
involvement with marijuana and firearms. He argues that both should have been
excluded under the Federal Rules of Evidence because they were irrelevant to his
prosecution for offenses relating to methamphetamine, and he further postulates
that the only purpose this evidence could serve was to make the jury think he had a
propensity for dealing drugs. This evidence, he continues, citing to Old Chief v.
United States, 117 S. Ct. 644, 650 (1997), was prejudicial because it invited the
jury to generalize his earlier bad acts into bad character traits, improperly
increasing the odds that he committed the methamphetamine crime charged.
The marijuana and firearm possession is evidence of uncharged criminal
activities, which is generally considered inadmissible extrinsic evidence under
1
Because we hold that probable cause existed to support the warrant, we do not address the
“good faith” exception to the exclusionary rule announced in United States v. Leon, 468 U.S.
897 (1984). See United States v. Foree, 43 F.3d 1572, 1577 n.7 (11th Cir. 1995).
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FED. R. EVID. 404(b). However, such evidence is admissible if it is “(1) an
uncharged offense which arose out of the same transaction or series of transactions
as the charged offense, (2) necessary to complete the story of the crime, or (3)
inextricably intertwined with the evidence regarding the charged offense.” United
States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998) (quoting United States v.
Ramsdale, 61 F.3d 825, 829 (11th Cir. 1995). Marijuana evidence is not
necessarily irrelevant to proof of methamphetamine distribution.2 The marijuana
evidence may not tend directly to prove Jimenez’s distribution of
methamphetamine, but it arose as part of the methamphetamine conspiracy, and it
corroborates the government’s evidence that referenced both methamphetamine
and marijuana. For example, the government introduced taped telephone
conversations containing references to both “cupcakes with white icing” and
“cupcakes with green icing,” explaining that “white icing” referred to
methamphetamine and “green icing” referred to marijuana. Evidence that Jimenez
was involved with marijuana supports the government’s proposed meanings of
these code words and, therefore, indirectly supports the government’s claim that
2
We will not explore here whether, and to what extent, for purposes of admission of
evidence under FED. R. EVID. 404, offenses involving one controlled substance are crimes
“other” than the same offense involving another controlled substance. Cf. Horton v. United
States, No. 99-3481, citation pending (7th Cir. 2000); Edwards v. United States, 105 F.3d 1179,
1180-81 (7th Cir. 1997) (holding types of drug that formed the object of a conspiracy is only a
sentencing factor). This possible issue has not been raised as such by the parties.
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Jimenez was guilty of the charged methamphetamine offense. The fact that
Jimenez drew a gun on the police when they searched his house does, as the
government argues, lend support to the government’s claim that he was involved in
a drug conspiracy that required him to arm himself. Although this may not be the
most obvious case for admissibility of this evidence, we cannot say that the
admission of the marijuana or firearm evidence was an abuse of discretion.3
Jimenez also challenges the admission of evidence of his physical abuse of
Sims. The district court admitted and the government played tapes of two
conversations made on May 27, 1995. On these tapes, the jury heard Sims say, in
an understandably agitated state, “He jumped on me again and beat me. . . . He hit
me in my stomach, too! . . . He beat the hell out of me . . . with his fists.” The
government justified playing these portions of the tapes by claiming that they were
“inextricably intertwined” with comments Sims made regarding Jimenez’s ongoing
participation in the drug conspiracy. In United States v. Hands, 184 F.3d 1322(11th Cir. 1999), we explained that “[s]ome types of extrinsic acts are particularly
likely to incite a jury to an irrational decision . . . . [F]ew would doubt that violent
spousal abuse falls into this category,” id. at 1328 (quotation omitted), and we find
3
In any event, even if we were to assume that this evidence was improperly admitted by the
district court, there was plenty of properly admitted evidence that supports Jimenez’s conviction.
We would therefore find the admission of the marijuana and firearm evidence harmless. See
United States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999).
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it hard to believe that the government could not have successfully redacted the
abuse-related comments from these taped conversations. We need not, however,
actually decide whether the abuse references were inextricably intertwined with
other government evidence or were erroneously admitted because “[a]n erroneous
evidentiary ruling will result in reversal only if the resulting error was not
harmless.” Id. at 1329. Here, there was much properly-admitted evidence against
Jimenez, and we are convinced that any possible error “‘had no substantial
influence on the outcome and sufficient evidence uninfected by error supports the
verdict.’” Id. (quoting United States v. Fortenberry, 971 F.2d 717, 722 (11th Cir.
1992)).
C. Sentencing
Lastly, Jimenez argues that the district court improperly imposed a two-level
enhancement for being a supervisor of the conspiracy under § 3B1.1(c) of the
Sentencing Guidelines. Under that section, “[i]f the defendant was an organizer,
leader, manager, or supervisor in any criminal activity, other than described in (a)
or (b), increase [the defendant’s offense level] by 2 levels.” USSG § 3B1.1(c).4
We will reverse the district court’s determination of Jimenez’s role in the offense
4
Sections 3B1.1(a) and (b) both pertain to the organization or supervision of an enterprise
with five or more participants. Section 3B1.1(c) has no such restriction on the number of
participants supervised.
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only if that determination was clearly erroneous. See United States v. DeVaron,
175 F.3d 930, 938 (11th Cir. 1999).
Although Jimenez correctly notes that being a drug supplier does not
automatically make him a “supervisor” under the Guidelines, see United States v.
Yates, 990 F.2d 1179, 1182 (11th Cir. 1993), the assertion of control or influence
over only one individual is enough to support a § 3B1.1(c) enhancement. See
United States v. Glover, 179 F.3d 1300, 1302 (11th Cir. 1999). Two witnesses
testified that Sims had to consult with Jimenez before agreeing to sell drugs, and
some of the taped conversations also indicated that Sims would consult with
Jimenez (who could be heard in the background) when discussing drug
transactions on the telephone. Given this evidence, we cannot say that it was clear
error for the district court to conclude that Jimenez had asserted control or
influence over Sims during the course of the conspiracy. Thus, Jimenez’s
argument fails.
III. Conclusion
For the foregoing reasons, we reject Jimenez’s claims on appeal and
AFFIRM the judgment of the district court.
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