150 F.3d 401 (5th Cir. 1998), 97-50427, United States v. Munoz

Docket Nº:97-50427.
Citation:150 F.3d 401
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Martin Gonzalez MUNOZ, Defendant-Appellant.
Case Date:August 04, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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150 F.3d 401 (5th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Martin Gonzalez MUNOZ, Defendant-Appellant.

No. 97-50427.

United States Court of Appeals, Fifth Circuit

August 4, 1998

Rehearing Denied Sept. 9, 1998.

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Richard L. Durbin, Jr., Asst. U.S. Atty., San Antonio, TX, Mark Randolph Stelmach, Asst. U.S. Atty., Austin, TX, for Plaintiff-Appellee.

Charles Louis Roberts, El Paso, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before KING and DAVIS, Circuit Judges, and HEARTFIELD, District Judge. 1

HEARTFIELD, District Judge:

Appellant, Martin Gonzalez Munoz, was convicted of being a felon in possession of a firearm and was sentenced. Finding no reversible error, we affirm.

I

A

Munoz, a convicted felon, moved into an apartment located at 11625 Rojas in El Paso, Texas, with his girlfriend, Brandi Reinhardt, and her baby during March, 1995. He contacted his parole officer, Carlos G. Paniagua, about his new home address. Paniagua verified Munoz's change in residence through Reinhardt.

Munoz met Richard Mason about this time. Mason expressed a desire to sell a .45 caliber Llama pistol for $280.00. Munoz offered to buy the gun. When asked by Mason if he was a convicted felon, he answered, "No, I'm not on parole." This assurance received, Mason agreed to sell. He and Munoz went to the Rojas apartment to complete the transaction. Once there, Reinhardt gave Munoz $80.00 and promised to pay the remaining $200.00 later. During the sale, Mason saw a sawed-off shotgun leaning against a corner.

Munoz related to Wayne Richard Mullins, Reinhardt's brother-in-law, on May 7, 1995, that he had received a .45 caliber gun from Reinhardt for his birthday (May 5). On separate occasions, he informed Maria Telles and Lisa Wheeler, friends of Reinhardt, that Reinhardt had given him the pistol for his birthday and demonstrated how to use it. 2

Telles and Wheeler each observed a sawed-off shotgun in the Rojas apartment while Munoz was residing there. Telles noticed the weapon leaning against a wall in the living room near the sofa. Wheeler saw it in several different places and witnessed Munoz handling it. Munoz told both Telles and Wheeler that the sawed-off shotgun belonged to him.

Munoz left the Rojas apartment on May 29, 1995, after arguing with Reinhardt. About this time, Reinhardt took the pistol, a clip and a red bag containing bullets to the home of her mother, Charlotte Norville, and hid them.

A state arrest warrant for a parole violation (blue warrant) was issued for Munoz on June 7, 1995. A week later, Willie Gonzalez, a state parole officer, contacted Deputy United States Marshal Fernando Karl of the Southwest Fugitive Taskforce (Taskforce) about Munoz. He said Munoz was living in an apartment on Rojas, that he had no information

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of Munoz being employed and that Munoz was, in all likelihood, armed. According to Gonzalez, Telles, whose identity he did not divulge, was willing to help apprehend Munoz.

Karl proceeded to obtain Munoz's criminal history. The National Criminal Information Center (NCIC) reported numerous convictions, including some for felonies, and an outstanding blue warrant dated June 7, 1995. Karl conveyed what he had learned from Gonzalez and NCIC to Taskforce members. They decided to execute the blue warrant early in the morning because of safety concerns and their expectation that Munoz, given his apparent unemployed status, would be home.

Taskforce members arrived at the Rojas apartment about 5:00 a.m. on June 15, 1995. Telles told them that Munoz had gone into the apartment around 2:00 a.m. and, as far as she knew, was still there. She also said he had failed to respond when the police had come for him previously.

Taskforce members approached the apartment. They noticed the front window's curtains drawn and heard music.

One agent knocked on the door and announced, "Police, federal officers, open the door." He continued for about ten minutes. Believing Munoz to be inside, Taskforce members obtained a key to the apartment, opened the door, entered and made a quick security sweep. Based upon his previous experience discovering suspects behind, inside and under sofas, one of the Taskforce members, Deputy United States Marshal Fernando Payan, moved the sofa in the living room away from the wall as part of this investigation. He saw a sawed-off shotgun upon doing so. Taskforce members confiscated it. Neither Munoz nor anyone else was found in the Rojas apartment.

Munoz and Reinhardt, having reconciled, were married later on June 15. They went to a Travelers Inn on Gateway West in El Paso afterward.

Telles alerted the Taskforce about 8:00 p.m. that Reinhardt, who, she said, was driving a primer gray 1980 Malibu, was meeting Munoz at a Motel 6. Taskforce members checked two Motel 6's on the east side of El Paso for Munoz without success. As they were discussing what to do next, they observed a primer gray Malibu traveling west on Gateway East. They tailed the car to the Travelers Inn on Gateway West. After confirming Munoz's registration, one of them telephoned his room and, identifying himself as the manager, stated that additional paperwork needed to be signed. This communication induced the opening of the room's door. At that point, two Taskforce members entered, located Munoz and arrested him. (Around 10:30 p.m., Norville informed Armando Salas, a Special Agent with the United States Bureau of Alcohol, Tobacco and Firearms (ATF), that Munoz and Reinhardt had gone to the Travelers Inn, and turned over the pistol, clip and bullets to him. For whatever reason, the Taskforce members in the field never knew about this development.)

B

A three-count indictment was returned against Munoz on January 17, 1996. Count I charged him with knowing possession of an unregistered firearm, the sawed-off shotgun, in violation of 26 U.S.C. § 5861(d). Count II accused him of being a convicted felon in possession of a firearm, the sawed-off shotgun, in violation of 18 U.S.C. § 922(g)(1), while count III alleged the same offense as to the pistol. Both of the latter counts stated that Munoz had "been convicted of a crime punishable by imprisonment for a term exceeding one year, namely for the felony offense of Aggravated Robbery in Cause No. 50474-65 in the 65th District Court of El Paso, Texas." See generally Tex. Penal Code Ann. § 29.03 (West 1998).

The trial judge granted Munoz's motions in limine covering "[a]ny extraneous offense allegedly committed by the Defendant" and "[t]he details of any offense used to establish the conviction of the Defendant" on March 17, 1997. Prior to this ruling, Munoz, through his counsel, Charles Roberts, had stated that these requests were made in anticipation of a stipulation to his status as a convicted felon.

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Voir dire began after motions in limine were resolved. The trial judge read the indictment, including passages relating Munoz's earlier felony conviction for aggravated robbery. He later asked if any venire member "believe[d] that the federal government should not make any laws affecting the ownership, possession or use of firearms," which precipitated the following colloquy:

THE COURT: Do you think anybody should be able to bear arms, even people that have been convicted of an Offense?

[VENIRE MEMBER]: Depends on what the offense is, I guess.

THE COURT: Well, in this case you've heard it's aggravated robbery. Now does that--is that going to affect you or can you still sit on this jury?

[VENIRE MEMBER]: I think I can still sit on the jury.

At the end of voir dire, Munoz sought a mistrial because the trial judge had disclosed the aggravated robbery to the venire panel. The motion was denied. Nobody ever specified Munoz's earlier felony conviction during trial; the Government and Munoz eventually filed a stipulation stating that "the defendant has been convicted in a court of a crime punishable by imprisonment for a term in excess of one year, that is a felony offense, prior to the time periods specified in the indictment."

Once the jury was impaneled, the trial judge delivered preliminary instructions to its members. Among other things, he told them, "Nothing I may say or do during the course of this trial is intended to indicate, nor should it be taken by you as indicating what your verdict should be." He also said, "Statements, arguments, and questions by the lawyers are not evidence." He concluded with the following charge:

Ladies and gentlemen, before the attorneys address you, I'm going to instruct you on just one matter. You are instructed that at this time, you are not to consider the specific offense of which the Defendant has been convicted. You're not to consider this for any purpose. What we are here on has nothing to do with what he's been convicted of except as it relates to the accusation of the firearm.

So we're not concerned with what may have happened before in another case, except in how it relates to this firearm--to this allegation of a firearm.

Trial then started and continued over the next few days. The Government's case included testimony by Mason, Mullins, Telles and Wheeler about their respective experiences with Munoz. Salas identified the sawed-off shot gun seized from the Rojas apartment as "a 12-gauge" and reported the weapon's barrel length as 17 3/4 inches.

Munoz eventually took the stand. At the outset, he gave June 3, 1995, as the date on which he moved into the Rojas apartment, but later changed...

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