71 F.3d 819 (11th Cir. 1996), 93-5179, United States v. Gonzalez

Docket Nº:93-5179.
Citation:71 F.3d 819
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Augustin GONZALEZ, Defendant-Appellant.
Case Date:January 04, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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71 F.3d 819 (11th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,


Augustin GONZALEZ, Defendant-Appellant.

No. 93-5179.

United States Court of Appeals, Eleventh Circuit

January 4, 1996

Page 820

[Copyrighted Material Omitted]

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Michael Blacker, Miami, FL, for appellant.

Kendall Coffey, U.S. Attorney, Alex Anguiera, Kathy A. Stark, Linda Collins Hertz, Lisa T. Rubio, Anne M. Hayes, Asst. U.S. Attys., Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and EDMONDSON, Circuit Judges, and EISELE [*], Senior District Judge.

EISELE, Senior District Judge:

Following a jury trial, appellant was convicted of two counts of making false statements to a firearms dealer in connection with the purchase of a firearm (Counts I and II), in violation of 18 U.S.C. Sec. 922(a)(6), and two counts of possession of a firearm by a convicted felon (Counts III and IV), in violation of 18 U.S.C. Sec. 922(g)(1). Appellant was sentenced to a seventy-eight month term of imprisonment for his violations of Sec. 922(g)(1), and a concurrent sixty-month term for his violations of Sec. 922(a)(6). Appellant thereafter filed a timely notice of appeal, challenging both his convictions and sentences. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We AFFIRM.


In August, 1984, appellant began serving a thirteen-year prison term for a violation of federal drug laws. 1 On March 24, 1989, appellant was paroled. On July 5, 1991, the United States Parole Commission (the Commission) was informed that appellant had

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allegedly violated the terms of his parole, 2 and on July 8, 1991, the Commission issued a warrant for the "retaking," i.e., arrest, of appellant. See 18 U.S.C. Sec. 4213(a)(2) (repealed Nov. 1, 1986); 28 C.F.R. Sec. 2.44(a)(2) (1991). Shortly thereafter, this warrant was delivered to the United States Marshal for the Southern District of Florida, see 28 C.F.R. Sec. 2.46(a) (1991), the district to which appellant was assigned. However, as appellant's whereabouts were then unknown, this warrant was not immediately executed.

While attempting to execute the Commission's warrant, Deputy Marshal Tom Figmik discovered that appellant had been using the alias "Jorge Lopez," 3 and in April, 1992, Deputy Marshal Figmik learned, from a confidential informant, that "Jorge Lopez" was believed to have been residing in Miami Lakes, Florida, that he had been seen driving a black Buick Grand National automobile, and that he had also been seen in possession of a firearm. On April 22, 1992, Deputy Marshal Figmik and Special Agent George Mastin of the Bureau of Alcohol, Tobacco and Firearms (BATF) proceeded to the location believed to be "Jorge Lopez' " residence in Miami Lakes. While approaching a traffic signal near this location, the officers noticed that a black Grand National was also approaching the intersection from the opposite direction, and appellant was immediately identified as the driver of the Grand National. The officers then made a U-turn and began to follow appellant. After following him for a short time they decided to stop appellant's vehicle and execute the Commission's arrest warrant. However, when the officers activated the blue light and siren of their unmarked vehicle, appellant refused to stop. The officers pulled along the driver's side of appellant's vehicle, whereupon Deputy Marshal Figmik produced his badge, identified himself as a United States Marshal, and commanded appellant to stop. In response, appellant put his automobile into reverse and began traveling backwards, away from the officers' pursuit, at a relatively high rate of speed. The officers then made a U-turn to follow appellant, and when appellant attempted to turn his automobile around the officers placed their vehicle in appellant's path. Shortly thereafter, the two vehicles collided and the chase ended. 4

At the conclusion of this chase, the officers alighted and approached appellant's vehicle, at which point Deputy Marshal Figmik noticed appellant reaching over into the front passenger area of the Grand National. Appellant was then quickly pulled from the vehicle, handcuffed, laid on the ground, and placed under arrest. At this point, appellant identified himself as "Jorge Lopez," but soon thereafter he revealed his true identity. Deputy Marshal Figmik then searched the passenger compartment of the Grand National. A closed black leather case was found in the glove compartment. When Deputy Marshal Figmik opened this case, he discovered that it contained a loaded .38 caliber Smith & Wesson revolver. This weapon and a garage door opener were then seized from the vehicle, and shortly thereafter, appellant was taken from the scene and returned to federal custody. A complete inventory of the Grand National (which revealed no additional contraband) was subsequently undertaken.

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Later that afternoon, Deputy Marshal Figmik returned to the Miami Lakes residence where appellant had allegedly been staying. There he joined Deputy Marshall Tom McDermott and various other marshals who had this location under surveillance. Approximately forty-five minutes later, the marshals observed Raquel Fernandez 5 (whom the marshals believed to be appellant's girlfriend) leaving the Miami Lakes residence. Deputy Marshal Figmik waited for Raquel to leave the premises, and after she had traveled a block he stopped her car (without any suspicion that she was involved in any criminal activity), ordered her out of the vehicle, and detained her, stating at trial that she was not then free to leave. Deputy Marshal Figmik then attempted to get Raquel to consent to a search of the Miami Lakes property, but she refused, stating that the property was owned by her mother. Deputy Marshal Figmik refused Raquel's request to return to her vehicle and then directed her to walk back to the Miami Lakes property (presumably so he could obtain her assistance in securing a consent to search).

When Raquel returned to the Miami Lakes property, Deputy Marshal Figmik asked her whether she knew appellant. While she denied knowing Augustin Gonzalez, Raquel stated that she had previously dated "Jorge Lopez," that he did not reside at the Miami Lakes residence (though he had previously stayed there as an overnight quest), and that she had not seen him for months. Deputy Marshal Figmik then proceeded to open the garage door of the Miami Lakes property with the door opener he had seized from the Buick Grand National, ostensibly to show Raquel that he knew she was lying about her relationship with appellant. After Raquel closed the garage door with her own opener, Deputy Marshal Figmik reopened it (offering no explanation for this action at trial). Despite Deputy Marshal Figmik's best efforts, Raquel continued to refuse to consent to a search of the Miami Lakes property. She, in effect, advised Deputy Marshal Figmik that he would have to get a warrant, whereupon he apparently departed the scene for the purpose of determining whether a warrant could be obtained. Raquel did, however, agree to call her mother, Maria Fernandez, so that the marshals might attempt to obtain consent from the owner of the property.

When Maria arrived at the Miami Lakes property, Supervisory Marshal Shawn Conboy attempted to get her to consent to a search of her house. Since Maria did not speak English well, Deputy Marshal McDermott translated the substance of Supervisory Marshal Conboy's request in "street Spanish," a rough analog of Maria's native language. Following a conversation with Raquel, Maria declined to offer her consent. She then drove away from the scene by herself, in her own car, to a nearby garage for the purpose of making a telephone call. Maria stated that she thought about calling an attorney, but changed her mind and then drove back to her house. Maria testified that upon her return, the marshals threatened her by telling her that her daughter would go to jail for five years if she did not consent to their search of her home. At some point thereafter, Maria stated that she wanted to go inside and get a drink of water, and Deputy Marshal McDermott, without permission, followed her into the kitchen, stating that she could not go into her house alone. Maria testified that she and Deputy Marshal McDermott went through the garage to get to the kitchen, and that other marshals were at that time searching the garage. Once inside, Deputy Marshal McDermott continued his efforts to obtain Maria's consent to a search of the room formerly occupied by appellant. Maria, according to Deputy Marshal McDermott, finally offered an oral acquiescence to this request, and a written consent-to-search form was executed after she and Deputy Marshal McDermott returned outside the home. 6

A number of marshals then proceeded to conduct a warrantless search of that portion

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of the Miami Lakes property that had been previously occupied by appellant. This search revealed a loaded 9mm. Beretta automatic pistol in a closet in that room, as well as two receipts from Collazo's Gun & Ammo, Inc. indicating that both this gun and the previously seized .38 Smith & Wesson had been purchased by appellant under the name "Jorge Lopez." 7 The government's handwriting expert confirmed that appellant had, in fact, signed those receipts in the name of that alias.

After Special Agent Mastin learned that appellant had apparently purchased two firearms from Collazo's Gun & Ammo under a false name, he sought to examine the retailer's records of those transactions, specifically the BATF 4473 forms that were required to be completed prior to the sale of those weapons. See 27 C.F.R. Sec. 178.124(a) (1991). Among the questions that a purchaser was (and is) required to answer on a BATF...

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