256 F.3d 330 (5th Cir. 2001), 00-50323, United States v Jimenez

Docket Nº:00-50323
Citation:256 F.3d 330
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWARD JIMENEZ, also known as Big Eddie; PAUL SANTIVANEZ, Defendants-Appellants.
Case Date:June 29, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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256 F.3d 330 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

EDWARD JIMENEZ, also known as Big Eddie; PAUL SANTIVANEZ, Defendants-Appellants.

No. 00-50323

United States Court of Appeals, Fifth Circuit

June 29, 2001

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Appeals from the United States District Court For the Western District of Texas

Before EMILIO M. GARZA and PARKER, Circuit Judges, and ELLISON, District Judge.[*]

KEITH P. ELLISON, District Judge:

Appellants Edward Jimenez and Paul Santivanez were convicted of arson causing death, firearms violations, and conspiracy. They appeal their convictions and life sentences. Both appellants argue that, as applied to them, the federal arson statute is unconstitutional. They also challenge several of the trial court's evidentiary rulings, its jury instructions, and its refusal to dismiss the indictment for allegedly prejudicial pre-indictment delay. Finally, Jimenez challenges his prosecution as violating a prior grant of immunity, and the district court's refusal to depart downward based on the fact that Jimenez was a minor at the time of the offenses. For the reasons stated below, we affirm.

I

The testimony at trial established that on the evening of September 7, 1993, Edward "Big Eddie" Jimenez, Paul Santivanez, Brian Mahan, Heriberto "Little Eddie" Hernandez, and Richard Cortez gathered in Cortez's garage. With the exception of Little Eddie, all were members of the Klan street gang led by Cortez. Jimenez and Santivanez discussed retaliating against Jeremy Cruz, a member of the rival Klik street gang, for Cruz's alleged involvement in a recent drive-by shooting.1

Santivanez told the others that he knew where Cruz lived, and that Cruz drove a yellow Camaro. Jimenez added that he knew how to make Molotov cocktails, and had recently firebombed the house of Klik member Jason Hernandez.2 Using supplies purchased by Santivanez, Jimenez made two Molotov cocktails using empty malt liquor bottles, flammable liquid, detergent, and cloth knotted into wicks.

Early the next morning, Santivanez drove the others to Cruz's house at 2414 Townbreeze, in San Antonio. The yellow Camaro and a pickup truck belonging to the Cruz family were located out front. Mahan and Little Eddie remained in the car, but the others walked toward the house. Jimenez and Santivanez each carried a Molotov cocktail and a cigarette lighter, while Cortez carried a gun. Cortez fired several shots into the house. Jimenez threw his Molotov cocktail into the master bedroom, where it exploded and started a fire. Santivanez also threw his Molotov cocktail into the master bedroom. Although the wick fell out and burned in the front yard, the remainder of the device added fuel to the bedroom fire. Mahan, now behind the steering wheel, waited for Jimenez, Santivanez, and Cortez to return, and then quickly drove off.

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Richard Cruz, Jeremy's father, was set on fire by the Molotov cocktails. His wife Pauline put out the flames on Richard. Richard then rescued his twelve-year-old daughter Karen, and both fled outside. Richard sat in a wading pool, while Karen tried to ease her father's burns by splashing him with water. Although Jeremy, Karen, and Pauline were not injured, Richard died a week later as a result of his burns.

From 1981 until the time of the fire, Richard ran the family business, A-1 Plastering, from a one-room office adjacent to the garage. This office was the company's business address. Business records and smaller supplies were located in the office. Other supplies, like cement, were stored in the garage. In the first nine months of 1993, A-1 Plastering employed six full-time workers and generated gross receipts of $170,000. The business used two pickup trucks and one van, each manufactured in Missouri. Further, A-1 Plastering's regularly used supplies and equipment were all manufactured outside of Texas.

No one was arrested immediately for the firebombing of the Cruz residence. During an interview with San Antonio police officers in November 1993, Jimenez implicated himself in the arson of the Hernandez home, but denied involvement in the Cruz firebombing. In 1994, agents of the Bureau of Alcohol, Tobacco, and Firearms ("ATF") asked to speak to Jimenez, who was then represented by Mr. Richard Langlois. Langlois and the United States Attorney's office reached an agreement by which Jimenez would debrief with the government. According to a transcript of the September 1994 interview, Jimenez again denied involvement in the Cruz arson and reiterated his statements that others were responsible. Following the interview, Jimenez took and failed a polygraph examination.

Richard Cortez died in January 1995. Through March 1995, when a new case agent took charge of the investigation, the government was still unable to make a case against any of the defendants. Jimenez was convicted on August 7, 1995 on the state charges resulting from the Hernandez firebombing. In late 1995 and 1996, agents interviewed Mahan and Little Eddie, who told the story of how Jimenez, Santivanez, and Cortez approached the home, how the first two threw Molotov cocktails, and how Cortez shot into the home. The government convened a federal grand jury, which heard testimony in 1997. After receiving confirmation in early 1998 that the Department of Justice would not authorize the death penalty in this case, the government indicted Jimenez and Santivanez in August 1998.

In a superseding indictment dated May 12, 1999, the government added the death-causing element under 18 U.S.C. § 844(i). Before this grand jury, however, ATF Agent Gena Alvarez inadvertently made a brief reference to facts disclosed in Jimenez's 1994 debriefing. In January 2000, shortly before trial, the government dismissed the superseding indictment. A grand jury, which did not hear the reference to Jimenez's debriefing, returned a second superseding indictment against both Jimenez and Santivanez.

Shortly before trial, the government disclosed to the defendants information concerning the mental health history of Little Eddie, one of its chief witnesses. The district court granted the government's in limine motion preventing defense counsel from referring to Little Eddie's mental state in opening arguments, and from cross-examining him on his mental health without first receiving permission from the bench. Defense counsel cross-examined Mahan and Little Eddie. They were also permitted to recall Little Eddie during

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their cases-in-chief, but chose not to call him again.

The jury convicted both defendants on all counts: (1) arson causing death, in violation of 18 U.S.C. § 844(i); (2) use of a destructive device during an arson, in violation of 18 U.S.C. § 924(c); (3) possession of an unregistered destructive device, in violation of 26 U.S.C. § 5861(d); and (4) conspiracy to commit the other offenses, in violation of 18 U.S.C. § 371. Jimenez and Santivanez were sentenced to life imprisonment, plus a mandatory sentence of thirty years, to run consecutively.

II

We review de novo the constitutionality of a criminal statute as applied to a defendant. United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000). The Supreme Court recently held that it is not a federal crime to throw a Molotov cocktail into a private home, if the home is not "the locus of any commercial undertaking."3 Although it may seem inequitable to alter the result simply because the home has a one-room office, the starting point for the analysis is the statutory requirement that the property destroyed be "used in ... any activity affecting interstate or foreign commerce." Despite the Supreme Court decisions in United States v. Lopez,4 and United States v. Morrison,5 the arson of a building - even a private home - containing an active business will often satisfy the constitutional requirement that the arson "substantially affect[ ] interstate commerce." Lopez, 514 U.S. at 559, 115 S.Ct. at 1630.

A

18 U.S.C. § 844(i) states, in relevant part:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years ... and if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment.

18 U.S.C. § 844(i) (1994 Supp. II) (emphasis added). The government may establish the requisite federal jurisdictional nexus by proving that the property was either (1) used in, or (2) used in an activity affecting, interstate commerce.

The Supreme Court's decisions in Lopez and Morrison illustrate that many federal prosecutions under the latter category - effect on interstate commerce - may be suspect. In Lopez, the Court struck down as unconstitutional the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q) (1994). The Court identified three broad categories of activity that Congress may regulate pursuant to its Commerce Clause powers: (1) the channels of interstate commerce, (2) instrumentalities of interstate commerce and things and persons in interstate commerce, and (3) activities having a substantial relation to interstate commerce.

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Lopez, 514 U.S. at 558-59, 115 S.Ct. at 1629-30. Regarding this third category, the Court held that, to be within Congress' Commerce Clause powers, "the...

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