United States v. Mendizabal , 214 F. App'x 496 ( 2006 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 06a0915n.06
    Filed: December 20, 2006
    No. 05-6887
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                         )
    )
    Plaintiff-Appellee,                        )
    )
    v.                                                )    ON APPEAL FROM THE UNITED
    )    STATES DISTRICT COURT FOR THE
    JOVAN MENDIZABAL,                                 )    EASTERN DISTRICT OF TENNESSEE
    )
    Defendant-Appellant.                       )
    Before: MARTIN and COOK, Circuit Judges; and BERTELSMAN, District Judge.*
    COOK, Circuit Judge. Jovan Mendizabal was convicted of conspiracy to distribute or
    possess with intent to distribute five kilograms or more of cocaine, 21 U.S.C. § 841(a), and
    possession of a firearm in furtherance of a drug trafficking offense, 18 U.S.C. § 924(c). Mendizabal
    had filed two pretrial motions to suppress, alleging (1) that officers violated the knock-and-announce
    rule when executing a search warrant for his residence and (2) that there was insufficient probable
    cause to issue that search warrant. He also had moved to dismiss the indictment on the ground that
    the government used his immunized testimony against him. The court denied the motions, and
    *
    The Honorable William O. Bertelsman, United States District Judge for the Eastern District
    of Kentucky, sitting by designation.
    No. 05-6887
    United States v. Mendizabal
    Mendizabal appeals. He also appeals his § 924(c) conviction on the ground that there was
    insufficient evidence for a jury to convict. We affirm.
    I
    Federal agents sought a search warrant for Jovan Mendizabal’s residence in Knoxville,
    Tennessee. Drug Enforcement Agency (DEA) Agent Don White testified before the magistrate
    judge that information provided by a confidential source supported the warrant. Agent White had
    a history with this source, and the source claimed to have been inside Mendizabal’s residence.
    DEA Agent Mike Long also provided a six-page affidavit supporting issuance of the warrant,
    in which he stated that his training and seventeen years of experience had taught him that “drug
    traffickers maintain books, records, receipts, notes, ledgers, and other papers,” which are “commonly
    maintained where drug traffickers have ready access to them, i.e. homes . . . .” The affidavit states
    that a confidential source told Agent Long that he purchased cocaine from Mendizabal on a weekly
    basis and that Mendizabal claimed people owed him about $20,000 from his cocaine sales. The
    affidavit also states that on October 1, 2004, the source went to Mendizabal’s home to arrange future
    cocaine purchases. The source was wearing a recording device that allowed Agent Long to overhear
    Mendizabal discuss his cocaine business. Several days later, the source met with Mendizabal in a
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    United States v. Mendizabal
    parking lot and purchased three ounces of cocaine, for which he paid $2,700 in marked bills. The
    magistrate judge issued the warrant.
    Before officers executed the search warrant, Agent Long conducted a controlled purchase at
    the Knoxville Center Mall and arrested Mendizabal. Officers confiscated about 250 grams of
    cocaine from Mendizabal’s vehicle. Agent Long and another officer interviewed him, and according
    to Agent Long’s notes, Mendizabal admitted to selling ten customers cocaine in four-and-one-half-
    ounce quantities or less.
    Agent White waited until Mendizabal was in custody before executing the search warrant.
    Agent White knocked three times at Mendizabal’s front door and announced the officers’ presence.
    When there was no response after about ten seconds, the officers hit the front door with a ram.
    Eventually, a door panel popped out and Agent White was able to reach in, unlock the door, and go
    inside. This entry took about forty-five seconds to one minute. During the search, officers seized
    cocaine and a Smith & Wesson Walther P22 handgun from a safe.
    II
    The following day, authorities charged Mendizabal with conspiracy to distribute or possess
    with intent to distribute 500 grams or more of cocaine. Mendizabal made a proffer, and authorities
    used this information to charge Chris Curry and Mike Boyd with conspiracy to distribute or possess
    with intent to distribute five kilograms or more of cocaine. Authorities then filed a Superseding
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    No. 05-6887
    United States v. Mendizabal
    Indictment against Mendizabal charging five kilograms of cocaine (an increase from the original
    charge of 500 grams or more). The Superseding Indictment also charged Mendizabal with
    possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C.
    § 924(c).
    Before trial, Mendizabal moved to suppress evidence, arguing (1) that officers executing the
    warrant did not comply with federal “knock-and-announce” requirements, and (2) that there was
    insufficient probable cause to support the issuance of a search warrant. The district court adopted
    the magistrate judge’s recommendations and denied the motions to suppress. First, the court found
    the officers justified in entering only ten seconds after knocking because they did not know whether
    Mendizabal’s roommates had drugs or access to weapons. Second, the district court rejected
    Mendizabal’s argument that the search warrant did not “make any connection between the residence
    to be searched and the facts of criminal activity that the officer set out in his affidavit.” Moreover,
    the court concluded that the officers acted with objective good faith in relying on the search warrant.
    Mendizabal also moved for a Kastigar hearing or, alternatively, to dismiss the indictment,
    alleging that authorities improperly used statements for which he had been granted immunity.
    Mendizabal feared both that the statements in his proffer might have been used in the investigation
    and presented to the grand jury and that they might be used at his trial. The district judge adopted
    the magistrate judge’s finding that a Kastigar hearing was not required. After reviewing grand-jury
    testimony, the district court agreed that apart from one question and one answer regarding
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    No. 05-6887
    United States v. Mendizabal
    Mendizabal’s gun possession, there was no evidence that the government breached the proffer
    agreement. And the district court agreed that even if the information about the gun came from
    Mendizabal’s proffer, there was no material breach of the proffer agreement because other evidence
    before the grand jury established probable cause on the § 924(c) count.
    A jury convicted Mendizabal on both counts, and the court sentenced him to 120 months on
    the drug conspiracy count and a mandatory consecutive term of 60 months on the § 924(c) count.
    On appeal, Mendizabal renews the arguments from his three pre-trial motions and also argues that
    there was insufficient proof for a reasonable jury to conclude that he possessed a firearm in
    furtherance of a drug trafficking crime.
    III
    Probable Cause in Support of the Search Warrant
    Mendizabal argues that the district court should have suppressed evidence seized from his
    residence because the search warrant did not identify a nexus between Mendizabal’s residence and
    his alleged drug activities. When reviewing a district court’s denial of a motion to suppress, we
    review factual findings for clear error and conclusions of law de novo. United States v. Pruitt, 
    458 F.3d 477
    , 480 (6th Cir. 2006). We consider the evidence in the light most likely to support the
    district court’s conclusion. 
    Id. Applying this
    standard, we discern no error in the district court’s
    denial of the suppression motion.
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    No. 05-6887
    United States v. Mendizabal
    The Fourth Amendment provides that a judge shall not issue a search warrant unless there
    is a finding of “probable cause, supported by oath or affirmation, and particularly describing the
    place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Probable cause
    to search is “a fair probability that contraband or evidence of a crime will be found in a particular
    place.” Illinois v. Gates, 
    462 U.S. 213
    , 238 (1983). “There must . . . be a ‘nexus between the place
    to be searched and the evidence sought.’” United States v. Carpenter, 
    360 F.3d 591
    , 594 (6th Cir.
    2004) (en banc) (quoting United States v. Van Shutters, 
    163 F.3d 331
    , 336–37 (6th Cir. 1998)).
    We conclude that a nexus existed because the search warrant was not limited to a search for
    drugs. Rather, it also directed officers to look for documentary evidence of drug sales (books,
    records, letters of credit, and electronic media), as well as drug paraphernalia such as scales and
    baggies. Agent Long testified that documentation and paraphernalia are often found in drug dealers’
    homes, and this testimony is consistent with this court’s prior observations. See, e.g., United States
    v. Jones, 
    159 F.3d 969
    , 975 (6th Cir. 1998) (“[I]n the case of drug dealers, evidence is likely to be
    found where the dealers live.”) (citation omitted). Therefore, even absent evidence that any drug
    transactions occurred at Mendizabal’s house, there was “a fair probability that contraband or
    evidence of a crime [would] be found” in the house. See 
    Gates, 462 U.S. at 238
    .
    Even if the warrant failed to show a nexus between Mendizabal’s criminal activities and his
    house—and thus was not supported by probable cause—the Leon good-faith exception would allow
    use of the evidence found at Mendizabal’s residence. Although Mendizabal characterizes Agent
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    United States v. Mendizabal
    Long’s affidavit as “bare bones” and alleges that “the first four pages of the affidavit, the last page
    and attachment B are simply conclusory allegations that would be made in virtually any similar case
    by the affiant,” we do not agree that it fails under Leon.
    The affidavit informs that the confidential source corroborated his relationship with
    Mendizabal; the source made an appointment to meet with Mendizabal at his home and confirmed
    that Mendizabal resided there; Mendizabal discussed his cocaine business at his home; and in Agent
    Long’s experience, drug traffickers keep records of their transactions in their homes. This
    information is not “so vague as to be conclusory or meaningless.” United States v. Frazier, 
    423 F.3d 526
    , 536 (6th Cir. 2005) (quoting 
    Carpenter, 360 F.3d at 596
    ). And though Attachment B does list
    items often described in other search warrants, it also lists examples of documentary evidence and
    paraphernalia that one would expect to find at a trafficker’s residence. Thus, the officers were
    objectively reasonable in relying on the warrant.
    The Knock-and-Announce Rule
    Mendizabal argues that the district court should have suppressed evidence seized from his
    home because DEA officers violated the knock-and-announce rule. But the Supreme Court’s
    decision in Hudson v. Michigan, 
    126 S. Ct. 2159
    (2006), forecloses this challenge.
    In Hudson, officers forcibly entered the defendant’s home only three to five seconds after
    knocking and announcing their presence. 
    Id. at 2162.
    The prosecution conceded a knock-and-
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    United States v. Mendizabal
    announce violation, 
    id. at 2163,
    but the Supreme Court held that the exclusionary rule did not apply
    because the officers inevitably would have discovered the evidence upon execution of the valid
    search warrant. 
    Id. at 2165.
    In this case, the officers also had a valid search warrant, so even if there
    were a knock-and-announce violation, the evidence discovered in Mendizabal’s house need not be
    suppressed.
    Sufficiency of Proof on the § 924(c) Charge
    Mendizabal argues that insufficient evidence supported his conviction under 18 U.S.C.
    § 924(c), and thus that the district court erred by denying his motion to acquit. Reviewing the district
    court’s decision de novo, United States v. Hartsel, 
    199 F.3d 812
    , 815 (6th Cir. 1999), we cannot
    agree with Mendizabal’s argument that no rational trier of fact could have found him guilty beyond
    a reasonable doubt. See, e.g., United States v. Humphrey, 
    279 F.3d 372
    , 378 (6th Cir. 2002).
    Mendizabal claims a dearth of evidence showed that his (undisputed) possession of a firearm
    was “in furtherance of” his underlying drug trafficking offense. In evaluating similar sufficiency
    challenges, courts have asked whether the gun was found in close proximity to the defendant because
    if the defendant can use the gun to protect himself or his drugs, then the gun “furthers” the
    defendant’s drug trafficking offense. See, e.g., United States v. Swafford, 
    385 F.3d 1026
    (6th Cir.
    2004); United States v. Mackey, 
    265 F.3d 457
    (6th Cir. 2001) (inquiring whether the gun was
    “strategically located” within the defendant’s reach); United States v. Iiland, 
    254 F.3d 1264
    (10th
    Cir. 2001). Conversely, when the gun is “found far from the locus of drug activities,” where it is
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    United States v. Mendizabal
    “not readily accessible . . . when [the defendant] would have been involved in drug conspiracy
    activities for which possession of a gun would be useful,” possession of the gun might not be “in
    furtherance of” a drug trafficking offense. See United States v. Rios, 
    449 F.3d 1009
    , 1016 (9th Cir.
    2006). In this case, Mendizabal’s gun was found in a safe along with the conspiracy-linked cocaine,
    where it would have been very useful in protecting that cocaine. Further, the gun was loaded, which
    is one consideration indicating it was readily available for use. See 
    Mackey, 265 F.3d at 462
    .
    Drawing all inferences in support of the verdict, we conclude that a rational trier of fact could have
    found that Mendizabal possessed this gun in furtherance of the cocaine conspiracy. See 
    Hartsel, 199 F.3d at 815
    .
    Breach of the Proffer Agreement
    Mendizabal argues that the district court erred by not holding a Kastigar evidentiary hearing
    about the possible use of immunized testimony against him. But because Mendizabal had only
    “pocket immunity,” a Kastigar hearing was not required, and we review only to determine whether
    the government materially breached the proffer agreement. We conclude it did not.
    Whether the defendant is entitled to a Kastigar hearing depends on the which of two types
    of immunity the government granted. The first type, “statutory immunity,” stems from the rights
    granted by the federal witness immunity statute, 18 U.S.C. § 6002. A grant of statutory immunity
    “assures a witness that his immunized testimony will be inadmissible in any future criminal
    proceeding, as will be any evidence obtained by prosecutors directly or indirectly as a result of the
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    United States v. Mendizabal
    immunized testimony.” United States v. Turner, 
    936 F.2d 221
    , 223–24 (6th Cir. 1991). So called
    “pocket immunity” (also called “informal immunity”),on the other hand, hinges on the prosecutor’s
    informal assurance of immunity; this approach bypasses the formalities required to grant statutory
    immunity. 
    Id. at 223;
    see also Bank of Nova Scotia v. United States, 
    487 U.S. 250
    , 258 (1998).
    When federal authorities later prosecute a defendant who has been granted statutory
    immunity, he can request a “Kastigar hearing” to require prosecutors to prove that they are not using
    his immunized testimony against him. See Kastigar v. United States, 
    406 U.S. 441
    (1972); United
    States v. Ford, 
    176 F.3d 376
    , 381 (6th Cir. 1999). A defendant granted only pocket immunity,
    however, lacks grounds for insisting on a Kastigar hearing, and normal contract law and remedies
    govern any alleged breach by prosecutors. See United States v. Fitch, 
    964 F.2d 571
    , 574 (6th Cir.
    1992); 
    Turner, 936 F.2d at 224
    .
    The language of Mendizabal’s proffer letter negates any doubt about the type of immunity
    the government granted:
    [T]he government may make derivative use and may pursue any investigative leads
    suggested by any statements or other information provided by your client. This
    provision is necessary in order to eliminate the necessity for a Kastigar hearing at
    which the government would have to prove that the evidence it would introduce at
    trial is not tainted by any statements or other information provided by your client
    during the proffer or discussion.
    On its face, the agreement allows the government to make derivative use of Mendizabal’s testimony.
    This is classic “pocket immunity,” so Mendizabal can only seek contractual remedies. But any
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    United States v. Mendizabal
    contractual argument must fail because the government did not materially breach the proffer
    agreement.
    Mendizabal cannot successfully argue that the government breached the proffer agreement
    when it raised the amount of cocaine charged from 500 grams to five kilograms. The government
    contends that it increased the amount based on Mendizabal’s post-arrest/pre-proffer statements and
    on the testimony of co-defendants Curry and Boyd. Mendizabal points out that Agent Long’s report
    of his post-arrest statement was actually prepared post-proffer. He insists that this demonstrates that
    “the government has confused facts which he presented in the [proffer] meeting as having been
    presented at the [post-arrest] meeting.” We find this assertion unconvincing and note also that the
    testimony of Curry and Boyd in itself supports the government’s increase in the amount of cocaine
    charged. We therefore discern no error in the district court’s conclusion that the government did not
    materially breach the proffer agreement as it relates to the drug charge.
    Similarly, Mendizabal cannot successfully argue that the government materially breached the
    proffer agreement by using his immunized testimony to charge him with possession of a firearm in
    furtherance of a drug offense. The district court reviewed the grand jury testimony and found one
    question and answer that may have been based on information contained in Mendizabal’s proffer:
    [AUSA Marsh:] Did he [Jovan Mendizabal] admit that was his gun?
    [Witness:] Yes
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    United States v. Mendizabal
    Two other factual points could suggest a breach: (1) Agent Long’s report of the post-arrest interview
    does not mention the gun, and (2) the district court agreed that it was unlikely that the information
    came from Curry or Boyd.
    Assuming this information did come to the government’s attention from the proffer, any
    resulting breach was not a material breach. See 
    Fitch, 964 F.2d at 574
    (holding that unless the
    breach of an informal immunity agreement is “material and substantial,” the aggrieved party cannot
    invoke contract-based remedies). The grand jury most likely decided that there was probable cause
    to indict Mendizabal on the § 924(c) charge because authorities found the gun next to cocaine in his
    safe—not because he admitted to Agent Long that it was his gun. Therefore, we discern no error in
    the district court’s conclusion that the government did not materially breach the proffer agreement
    when it charged Mendizabal with a violation of 18 U.S.C. § 924(c) in the Superseding Indictment.
    IV
    For the reasons stated above, we affirm Mendizabal’s conviction.
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