419 F.3d 34 (1st Cir. 2005), 04-1691, United States v. Jimenez

Docket Nº:04-1691.
Citation:419 F.3d 34
Party Name:UNITED STATES of America, Appellee, v. Frank J. JIM
Case Date:August 17, 2005
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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419 F.3d 34 (1st Cir. 2005)

UNITED STATES of America, Appellee,

v.

Frank J. JIMÉNEZ, Defendant, Appellant.

No. 04-1691.

United States Court of Appeals, First Circuit.

August 17, 2005

Heard June 6, 2005.

APPEAL FROM THE UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF MASSACHUSETTS, Hon. Michael A. Ponsor, U.S. District Judge.

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David J. Wenc, with whom Wenc Law Offices was on brief, for appellant.

Thomas J. O'Connor, Jr., Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, were on brief, for appellee.

Before Torruella, Lynch and Lipez, Circuit Judges.

TORRUELLA, Circuit Judge.

Appellant Frank J. Jiménez was charged in a multiple count indictment with possession of a firearm on July 22, 23, and 24, 2002 (Counts Three, Six, and Eight) in violation of 18 U.S.C. § 922(g) (1), and possession of a firearm in furtherance of a drug trafficking crime on July 22, 2002 (Count Five) in violation of 18 U.S.C. § 924(c). After a jury trial in the U.S. District Court for Massachusetts, a jury returned guilty verdicts on all of these charges.

Jiménez appeals on various grounds: (1) he claims error in the denial of his motion to suppress evidence seized during a warrantless search of the residence where he was staying; (2) he alleges that the trial court abused its discretion in refusing his request for an evidentiary hearing for his second motion to suppress; (3) he claims that the trial court erred by failing to admit into evidence the written statement of Rafael Pérez, an unavailable witness; (4) he objects to the admission of that same witness's statements contained in a written confession; (5) he claims that the trial court should have given a proffered "missing witness" instruction to the jury; (6) he challenges the sufficiency of the evidence in support of his conviction, and (7) in the event all else fails, he claims that United States v. Booker, 125 S.Ct. 738 (2005), requires remand of this case for resentencing. For the reasons stated herein, we reject appellant's contentions and affirm his conviction.

I.

Essentially, the dispute concerns not the facts heard by the jury, but rather the application of the law to them.

Sometime in May 2002, ATF Special Agent Patrick Burns learned from David Steward, the owner of Triple A Guns, a gun store in West Springfield, Massachusetts, that a Rafael Pérez had purchased an unusually large number of firearms during the Spring of 2002. Burns reviewed Steward's records and confirmed this fact. Thereafter, Burns met with Michael Veilleux, the owner of another gun dealership called Guns & Gun Parts, and learned that Pérez had also purchased an unusually large number of firearms from Veilleux during that same period. Burns concluded that Pérez was possibly engaged in some kind of illegal activity and asked Vellieux to contact him if Pérez returned.

On July 22, 2002, Burns received a call from Veilleux, alerting him to the presence of Pérez at his store. Pérez was in the process of purchasing another firearm. Burns proceeded to the store and set up surveillance, whereupon he observed Pérez coming out of the store carrying a bag and accompanied by a child and a man, whom Burns was later able to identify as appellant Jiménez . Pérez had just purchased a Model P-85 Ruger pistol. Pérez, the child, and Jiménez got into a car that was registered to Pérez's wife at an address in Springfield, and drove away, with agent Burns attempting to follow them.

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Burns lost Pérez in traffic and decided to proceed to the Springfield address to set up surveillance there. At some point Pérez drove up, got out with the child and went into the house at that address. Pérez was empty-handed.

Burns returned to Veilleux's store and learned that the man who had accompanied Pérez had two tattoos on his arm: one said "Freaky" and the other "La Familia." Burns then checked with the Springfield Police Department, where he received information connecting appellant Jiménez with those tattoos, obtained a photograph of Jiménez, and learned that his street alias was "Freaky" or "Freaky-tie."

On July 23, 2002, Veilleux called Burns again to indicate that Pérez was back at his store with the same man as before, to purchase another firearm. Burns proceeded to the store and was able to observe the Pérez/ Jiménez duo coming out of the store together. They got into a different car than the day before and drove away, again with Burns tailing them, but with no better results, losing them in traffic.

On July 25, 2002, Burns and Springfield Police Detective Ricardo Ortiz interviewed Pérez regarding his numerous firearms purchases. Pérez told the agents that a friend of his named "Frank" was holding some of the firearms he recently had purchased. Pérez stated that he did not know Frank's full name, but would show them where Frank lived. He then took Burns and Ortiz to the place where Frank was staying in Springfield, located at 105 Jefferson Street.

Upon arrival, the lessee of the premises, Elsa Rodríguez, authorized the agents to search the residence. When they reached the second floor they were able to detect the odor of burning marihuana emanating from the front bedroom, the door to which was closed and locked, and which Rodríguez indicated was being used by appellant Jiménez . Rodríguez used a butter knife to force the lock open, and the agents proceeded to enter Jiménez 's room. Inside they found a hand gun case, ammunition, cash, marihuana, and a digital scale. Jiménez was not in the room. Next, they proceeded to the rear bedroom, which belonged to Rodríguez, where they found Jiménez hiding on the floor next to a bed. Ortiz drew his weapon and called for Jiménez to show himself. When he stood up, Ortiz recognized him as being "Freaky," put him under arrest and placed handcuffs on him. At this point, another man emerged from the closet where he had been hiding and indicated that Jiménez had put a gun inside a pillowcase that was on the bed. Ortiz looked inside the pillowcase and found a 9 millimeter Ruger, Model P-89, pistol, bearing serial number 310-76049.

Jiménez was transported to the Springfield police station whereupon the agents returned to the bedroom that Jiménez had been using and seized the evidence they had found previously.

Burns and Ortiz returned to the police station to talk to Jiménez, whom they advised of his Miranda rights. Jiménez agreed to waive these and provided the agents with a written statement. In his statement, Jiménez told the agents that Pérez came to him looking for heroin "[t]his past Monday," meaning July 22, 2002, but that Pérez did not have any money with which to pay for the drugs. Pérez offered to "give [Jiménez ] one gun instead of cash and when he got cash he would pay with cash and get the gun back." Jiménez then went with Pérez to Guns & Gun Parts, where Pérez purchased a gun, and Jiménez then gave Pérez some heroin. Pérez gave him "a 9 mm. I think it was a Ruger." Jiménez further stated

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that Pérez "returned with cash, which he said he earned by finding a buyer for the gun. I gave him the gun and he said he sold it." The records at Guns & Gun Parts showed that Pérez purchased a 9 millimeter Ruger, Model P-85, pistol, with serial number 301-09664. This gun was not recovered.

Jiménez further stated that he and Pérez went again to the same gun store the following day, July 23, 2002, where Pérez purchased another firearm. The store records show that Pérez's purchase on that day was a 9 millimeter Ruger, Model P-89, pistol, with serial number 310-76049. This was the same firearm seized from the pillowcase at the time of Jiménez 's arrest, and Jiménez admitted to hiding the gun there.

Jiménez also stated that Pérez gave him two more guns on or about July 24, 2002, one of which was a .380 caliber firearm, which he in turn gave to an individual called "Jinxx." Jiménez did not know "Jinxx's" real name or exact address, but was able to provide his physical description, and agreed to take the agents to where he lived. On July 26, 2002, Jiménez showed Springfield Police Detective Misael Rodríguez where "Jinxx" resided at 2718 Main Street in Springfield. Later that day, Detective Rodríguez returned to that address and knocked on the door of the apartment described by Jiménez as belonging to "Jinxx," whereupon a man fitting the physical description of "Jinxx" supplied by Jiménez open the door. "Jinxx" consented to a search of his apartment, during the course of which Detective Rodríguez found and seized a .380 caliber Bersa, Model 85, pistol, bearing serial number 295197, which had been hidden above the tiles of a drop ceiling in the bathroom. The records of Triple A Guns showed that Pérez had purchased this gun on July 23, 2004.

At trial, it was...

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