United States v. Ayla Marie Mendoza , 661 F. App'x 986 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12660
Non-Argument Calendar
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D.C. Docket No. 3:14-cr-00074-LC-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AYLA MARIE MENDOZA,
a.k.a. Ayla Cates,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(September 30, 2016)
Before HULL, MARCUS, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Defendant Ayla Mendoza appeals her conviction following her conditional
guilty plea to aiding and abetting the possession of firearms by an alien unlawfully
in the United States, in violation of 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2) and 2.
Defendant’s conditional plea permitted her to appeal the issues raised in this
appeal: (1) the district court’s denial of her motion to suppress evidence seized
from her home and her subsequent statements made to law enforcement and (2) the
district court’s pre-trial ruling denying Defendant’s request for a jury instruction
defining the term “willfulness.” After careful review, we affirm the district court’s
ruling on both the suppression motion and the requested instruction.
I. BACKGROUND 1
On August 6, 2014, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (“ATF”) received an anonymous tip that an illegal alien named Luis
Mendoza (“Luis”) was in possession of firearms. The tip included photos from
Defendant’s Facebook account, which showed Luis posing with a Smith & Wesson
M&P rifle and a shotgun. ATF agents later confirmed that Defendant had
purchased those firearms at a nearby Walmart.
After confirming the anonymous tip, ATF Special Agent Brent Carrier and
two other detectives, Detective Kilburn and Detective Conkell, went to
1
The following facts are taken from the testimony at the suppression hearing, viewed in the
light most favorable to the Government. United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir.
2008).
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Defendant’s residence to conduct an interview. When Defendant answered the
door, Agent Carrier identified himself and explained that he needed to speak with
her about an ongoing investigation. Defendant invited Agent Carrier and Detective
Kilburn inside.
Once inside the residence, Agent Carrier told Defendant that the ATF
Pensacola Office had received an anonymous tip that Luis was in possession of
firearms. Defendant told Agent Carrier and the detective that she and Luis were
married and resided together at the residence. She knew that Luis was residing in
the United States illegally, and she admitted that she had purchased two firearms
from Walmart. She told Agent Carrier that the firearms were inside the residence.
Defendant also told Agent Carrier that she had purchased the firearms
because Luis could not do so. Given Defendant’s admission that she had made a
straw purchase as to these firearms, Agent Carrier informed Defendant that the
agent could not leave the residence without the firearms. Agent Carrier asked
Defendant where the firearms were located, and Defendant escorted him to the
back bedroom. Defendant then informed Agent Carrier that the firearms were on
the top shelf of the walk-in closet. She also told Agent Carrier that there was
ammunition in the nightstand. After obtaining Defendant’s permission, Agent
Carrier searched the rest of the bedroom for firearms and ammunition, but did not
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open anything that was closed. He was not able to find the ammunition because
the nightstand was locked and only Luis had the key.
At this point, Defendant called Luis. Agent Carrier told Defendant to inform
Luis that he was not arresting anyone that day, and that he just wanted to speak to
Luis. When Defendant handed Agent Carrier the phone, he told Luis that he was
taking the firearms because they were part of a crime. Luis said that he had
already told Defendant to hand over the firearms.
Agent Carrier told Luis that he would come back to retrieve the ammunition
from the nightstand when Luis returned home. Agent Carrier never told Defendant
that she would not be charged if she handed over the firearms, nor did he ever
show her his gun. When Defendant later called to inform Agent Carrier that Luis
had returned home, Agent Carrier and the two detectives went back to the
residence. When they arrived, Luis was outside and he invited Agent Carrier and
the detectives inside.
Agent Carrier then interviewed Luis and Defendant. During the interview,
Luis told Agent Carrier that he had illegally entered the United States ten years
earlier. Defendant also stated that she had purchased the firearms for the family.
At the conclusion of the interview, Luis and Agent Carrier retrieved the
ammunition from the nightstand. Around the same time, Agent Carrier told Luis
and Defendant that he did not know if they would be charged. He also told Luis
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and Defendant that he had concluded his investigation, and that the United States
Attorney’s Office would make the ultimate determination about whether or not to
prosecute.
Shortly after this visit to the residence, Detective Kilburn again contacted
Defendant and told her that he needed to return in order to retrieve Luis’s passport
and the shell casings that Detective Kilburn and Agent Carrier had seen in the
backyard during their visit. When Detective Kilburn arrived at the residence, she
gave him Luis’s passport as well as permission to retrieve the shell casings.
A federal grand jury subsequently returned an indictment charging
Defendant with aiding and abetting an illegal alien, namely Luis, to knowingly
possess a firearm, in violation of 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2), and 2.
Before trial, Defendant moved to suppress the firearms seized from her
home and the statements she made to law enforcement because she argued that her
consent to the warrantless search of her home was not knowing and voluntary. She
further argued that Agent Carrier never advised her of her Miranda2 rights prior to
or after her statements to law enforcement. The district court denied the motion,
finding that based on the credibility of the witnesses, Defendant’s surrender of the
firearms and the entry into the home were voluntary and consensual, and
Defendant’s statements were not coerced in any way.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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In anticipation of trial, both the Government and Defendant requested that
the district court settle their dispute as to which instructions should be given to the
jury. At bottom, the dispute focused on whether the Government had to prove that,
in aiding and abetting her husband (who, as an illegal alien, could not legally
possess a firearm), Defendant acted willfully, as opposed to just knowingly. The
Government’s position was that it did not have to prove willfulness, but only that
Defendant acted knowingly.
Specifically of pertinence to this appeal, Defendant requested that the district
court give the standard instructions explaining aiding and abetting and defining
both the terms “knowingly” and “willfully,” as well as a special instruction
concerning the good faith defense. 3 The Government concurred that the pattern
instruction on aiding and abetting should be given. But it disagreed that the good
faith defense instruction should be given. And, of significance to the narrow issue
on appeal here, the Government contended that the district court should decline to
instruct the jury on the term “willfulness,” but instead should define for them only
the term “knowingly.”
3
These instructions are numbered respectively: Eleventh Circuit Pattern Jury Instructions
(Criminal Cases) (2010), Special Instruction 7 (“Aiding and Abetting”); Basic Instruction 9.1A
(“On or About; Knowingly; Willfully-Generally”) or 9.1B (“On or About; Knowingly: Willfully-
Intentional Violation of a Known Legal Duty”); Special Instruction 9 (“Good Faith Defense to
Willfulness”).
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The district court agreed with the position taken by the Government,
meaning that it ruled that it would decline to define for the jury the term
“willfulness” or to instruct them that Defendant had a good-faith defense to the
charge. Immediately after the district court’s ruling, Defendant entered a plea of
guilty to aiding and abetting an illegal alien to knowingly possess a firearm, but
conditioned that plea on her ability to appeal the district court’s adverse rulings on
the instruction issue and the suppression motion. The district court subsequently
sentenced Defendant to one day of probation with credit for time served.
Defendant now appeals.
II. DISCUSSION
A. Motion to Suppress
We review a district court’s ruling on a motion to suppress as a mixed
question of law and fact, reviewing factual findings for clear error and the district
court’s application of the law to those facts de novo. United States v. Timmann,
741 F.3d 1170, 1177 (11th Cir. 2013). We construe the facts in the light most
favorable to the prevailing party, which in this case was the Government. United
States v. Sparks, 806 F.3d 1323, 1334 (11th Cir. 2015). We also defer to the
district court’s credibility determinations, unless the determination is “contrary to
the laws of nature, or is so inconsistent or improbable on its face that no reasonable
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factfinder could accept it.” United States v. Ramirez-Chilel, 289 F.3d 744, 749
(11th Cir. 2002).
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend. IV. “Of all the places that can
be searched by the police, one’s home is the most sacrosanct, and receives the
greatest Fourth Amendment protection.” United States v. McGough, 412 F.3d
1232, 1236 (11th Cir. 2005).
The general prohibition against the warrantless search of a person’s home is
not applicable when a person consents to a search of the home. See Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990). Whether the defendant voluntarily
consented to a search is determined by the totality of the circumstances. United
States v. Drayton, 536 U.S. 194, 206–07 (2002); United States v. Blake, 888 F.2d
795, 798 (11th Cir. 1989). The burden is on the Government to demonstrate that
consent was voluntarily given and was not the product of duress or coercion.
United States v. Yeary, 740 F.3d 569, 581 (11th Cir. 2014). “A district court’s
determination that consent was voluntary is a finding of fact, that will not be
disturbed on appeal absent clear error.” Id. (quotations omitted).
Defendant argues that Agent Carrier entered her home without a warrant,
and that her agreement to turn over the firearms was not voluntary. We conclude
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that the district court did not clearly err in finding that Defendant voluntarily
consented to the entry into her home and the seizure of the firearms. Agent Carrier
testified that Defendant invited him and Detective Kilburn into her home and
cooperated with their investigation and search efforts. She led Agent Carrier to the
firearms in the back bedroom, permitted Agent Carrier to search the rest of the
bedroom for firearms, and called Agent Carrier when Luis returned home with the
key to unlock the nightstand where the ammunition was located. See Ramirez-
Chilel, 289 F.3d at 752 (indicating that the extent of an individual’s cooperation
with law enforcement is a factor to consider when determining whether the
individual’s consent was coerced).
Defendant asserts that her consent was not voluntary because she was given
two choices: cooperate or go to jail. However, both she and Agent Carrier
described both of his visits to her home as friendly and/or casual encounters.
Moreover, Agent Carrier and the detectives identified themselves when they
arrived at Defendant’s home and explained the purpose of their visit. Although
Agent Carrier and the two detectives were armed, none of them brandished their
guns nor were their guns visible. And, while Defendant testified that she would
not have consented if she had known she did not have to, this knowledge was not
necessary for the Government to meet its burden of showing that Defendant’s
consent was voluntary. See United States v. Zapata, 180 F.3d 1237, 1242 (11th
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Cir. 1999) (stating that the failure to inform the defendant of the right to refuse
consent to a search does not invalidate otherwise valid consent).
The district court also determined that Agent Carrier and Detective
Kilburn’s testimony that Defendant consented was more credible than Defendant’s
testimony that her consent was not voluntarily given. We defer to that credibility
determination because Defendant has not shown that the district court’s findings
were “contrary to the laws of nature, or [are] so inconsistent or improbable on
[their] face that no reasonable factfinder could accept [them].” Ramirez-Chilel,
289 F.3d at 749.
The district court also did not err by denying Defendant’s motion to suppress
the statements she made to Agent Carrier and the detectives. The district court
found Agent Carrier’s testimony—that he did not tell Defendant that she would not
be charged if she cooperated—more credible than Defendant’s testimony to the
contrary. Because Defendant has not shown that this factual finding is so
inconsistent that no reasonable factfinder would accept it, we defer to that
determination. See Ramirez-Chilel, 289 F.3d at 749. We also reject Defendant’s
argument that her statements based on the purported illegally-seized firearms
should have been suppressed as fruit of the poisonous tree. Given that the initial
search of the home and seizure of the firearms were not unlawful, Defendant’s
later statement cannot be fruit of the poisonous tree. See United States v. Lopez-
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Garcia, 565 F.3d 1306, 1315 (11th Cir. 2009) (concluding that defendant’s
argument that statements he made after he was initially stopped and arrested were
not fruit of the poisonous tree because his initial seizure and arrest were not
unconstitutional). Considering the totality of the circumstances, the district court
did not clearly err in finding that Defendant’s acquiescence to the seizure of the
firearms and subsequent statements to law enforcement were voluntary, and thus,
the district court did not err in denying her motion to suppress.
B. Jury Instructions
Defendant also argues that the district court erred in its pre-trial ruling
denying her request that the jury be instructed as to the definition of willfulness.
Because Defendant entered a conditional plea of guilty reserving her right to
challenge the court’s ruling, we consider that ruling, as much as we can, in the
same way as if Defendant had proceeded to trial and the district court had
instructed a jury consistent with the pre-trial ruling. We review a district court’s
denial of a requested jury instruction for abuse of discretion. United States v.
Gomez, 164 F.3d 1354, 1356 (11th Cir. 1999). The district court’s failure to give a
requested jury instruction only constitutes reversible error if the instruction: “(1)
was correct, (2) was not substantially covered by a charge actually given, and (3)
dealt with some point in the trial so important that failure to give the requested
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instruction seriously impaired the defendant’s ability to conduct his defense.”
United States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007).
As noted, Defendant entered a conditional plea of guilty to aiding and
abetting an illegal alien to knowingly possess firearms, in violation of 18 U.S.C.
§§ 922(g)(5)(A), 924(a)(2) and 2. Under § 922(g)(5)(A), it is a crime for an illegal
alien “to ship or transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in interstate or foreign
commerce.” 18 U.S.C. § 922(g)(5). The penalty section of the chapter provides
that “[w]hoever knowingly violates” various subsections of section 922, including
subsection (g), shall be fined as provided in this title, imprisoned not more than 10
years, or both. 18 U.S.C. § 924(a)(2) (emphasis added).
As to 18 U.S.C. § 2, which sets out the offense of aiding and abetting, the
latter provides:
(a) Whoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission, is
punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly
performed by him or another would be an offense against the
United States, is punishable as a principal.
(emphasis added). The indictment mimicked the language set out in § 2(a); that is,
it charged Defendant with aiding, abetting, counseling, commanding, inducing, and
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procuring the commission of a criminal offense. The indictment did not charge
Defendant with § 2(b), which requires that Defendant “willfully cause an act to be
done,” that is, “willfully cause the offense to be committed.”
Prior to the Defendant’s entry of a plea of guilty, and in anticipation of a
trial, the parties requested the district court to give particular instructions to the
jury. As set out above, both parties agreed that the standard aiding and abetting
instruction should be given, which of course made sense because that is the offense
Defendant was charged with. Defendant’s possession of two firearms, by itself,
violated no federal law. Rather, it was her husband’s possession of the firearms
that was unlawful, because he was in the country illegally and federal law prohibits
an illegal alien from possessing a firearm. And because Defendant provided her
husband with these firearms, her conduct in doing so rendered her vulnerable to a
potential charge of aiding and abetting her husband in committing this criminal
offense.
The parties agreed on the need to give an aiding and abetting instruction.
The instruction reads:
Aiding and Abetting; Agency. It’s possible to prove the Defendant
guilty of a crime even without evidence that the Defendant personally
performed every act charged.
Ordinarily, any act a person can do may be done by directing another
person, or “agent.” Or it may be done by acting with our under the
direction of others.
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A Defendant “aids and abets” a person if the Defendant intentionally
joins with the person to commit a crime.
A Defendant is criminally responsible for the acts of another person if
the Defendant aids and abets the other person. A Defendant is also
responsible if the Defendant willfully directs or authorizes the acts of
an agent, employee, or other associate.
But finding that a Defendant is criminally responsible for the acts of
another person requires proof that the Defendant intentionally
associated with or participated in the crime – not just proof that the
Defendant was simply present at the scene of a crime or knew about
it.
In other words, you must find beyond a reasonable doubt that the
Defendant was a willful participant and not merely a knowing
spectator.
(emphasis added).
Again, Defendant was charged with aiding and abetting her husband in a
violation of § 922(g)(5). The above instruction sets out the mental state that must
be proved to convict of a person of aiding and abetting a criminal offense,
generally. Specifically, the instruction explains that a defendant aids and abets the
commission of a crime if “the Defendant “intentionally joins with [another] person
to commit [the] crime.” Stated another way, to find a defendant “criminally
responsible for the acts of another person requires proof that the Defendant
intentionally associated with or participated in the crime….” In contrast, as the
instruction explains, it is insufficient to prove only that “the Defendant was simply
present” or that she happened to “[know] about” the crime. In summarizing all of
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the above, the instruction concludes by requiring the jury to find that “the
Defendant was a willful participant and not merely a knowing spectator.”
Translated, an aider and abetter is a “willful participant” if she has intentionally
joined in, associated with another person, or participated in the commission of the
crime.
The district court agreed to give the above instruction, but Defendant asked
the court to go further and to give an additional, and wholly separate, instruction
defining the term “willfulness.” Defendant asked the court to give either the
version of the willfulness instruction that calls for proof that the accused acted with
a bad purpose, albeit without any awareness of a specific law that the conduct
violated (Basic Instruction 9.1A (2010)), or the iteration that actually calls for
awareness that one is violating a particular law (Basic Instruction 9.1B (2010)).
The district court declined to do so, and, for several reasons, we find no
error.
First, a § 922(g)(5) offense is not a specific intent crime. 4 A person can be
convicted, as a principal, of being a felon in possession of a firearm under
4
Section 922(g)(5) states:
(g) It shall be unlawful for any person—
***
(5) who, being an alien . . . illegally or unlawfully in the United States . . . to
. . . possess in or affecting commerce, any firearm or ammunition.
18 U.S.C. § 922(g)(5).
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§ 922(g)(5) without any proof that the individual acted willfully; that is, without
proving that the defendant acted with a bad purpose to do something in disregard
of the law. See United States v. Jones, 143 F.3d 1417, 1419 (11th Cir. 1998) (“The
crime of being a felon in possession of a firearm is easily understood. Possession
alone is sufficient. The crime does not require any specific intent.”); United States
v. Haun, 494 F.3d 1006, 1010 (11th Cir. 2007) (indicating that “if Congress had
intended to legislate a specific intent crime, the statute would have said ‘with the
intent to.’” (quoting United States v. Meeker, 527 F.2d 12, 14 (9th Cir. 1975)).
Second, the paragraph of 18 U.S.C. § 2 used to charge Defendant with
aiding and abetting was § 2(a), not § 2(b). And it is only § 2(b) that requires that a
defendant “willfully” do something; that is, “willfully cause[]” another to commit
an offense against the United States. Thus, § 2(a) did not require the Government
to prove that Defendant acted with any bad purpose in aiding and abetting her
husband. Rather, it only had to prove that Defendant’s husband was an illegal
alien who possessed a firearm (which is a crime) and that Defendant aided and
abetted her husband in that endeavor, which she clearly did. Indeed, Defendant
admitted that she acquired two guns for her husband and that she gave him the
guns, knowing that he was an illegal alien. By her own admission, Defendant
intentionally aided and abetted her husband, rendering her, in the parlance of the
aiding and abetting instruction, a willful participant.
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For the above reasons, including the type of crime at issue and Defendant’s
admitted facts here, we conclude that Defendant has shown no reversible error as
to the Court’s exercise of discretion in declining to give the “willfulness” charge
requested by Defendant. Accordingly, we AFFIRM the district court’s rulings on
both the suppression motion and the jury instruction.
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