U.S. v. Garza-Juarez

Decision Date23 April 1993
Docket NumberNos. 92-10187,92-10233 and 92-10234,GARZA-JUAREZ and E,92-10188,s. 92-10187
Citation992 F.2d 896
PartiesUNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Joesteban Garza-Juarez, Defendants-Appellants-Cross-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Gregory R. Jordan, Phoenix, AZ, for defendant-appellant-cross-appellee Esteban Garza-Juarez.

David M. Ochoa, Phoenix, AZ, for defendant-appellant-cross-appellee Joe Garza-Juarez.

Timothy Holtzen, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee-cross-appellant.

Appeal from the United States District Court for the District of Arizona.

Before: ALDISERT *, GOODWIN and FLETCHER, Circuit Judges.

ALDISERT, Circuit Judge:

We are presented with cross appeals. Appellants Joe Juarez and Esteban Juarez, who were convicted on charges stemming from the sale of firearms and the possession of unregistered suppressors (silencers), present questions of entrapment and improper and vindictive prosecutorial conduct. The government appeals from the district court's downward departure from the sentencing guidelines recommendations, the sentencing court being of the view that the government's investigatory conduct was sufficiently coercive to warrant a mitigation of the sentences. We affirm the convictions and sentences in all respects.

Jurisdiction was proper in the trial court based on 18 U.S.C. § 3231. This court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b) (appeals from sentencing). The appeals were timely filed under Rule 4(b) of the Federal Rules of Appellate Procedure.

I.

The investigating agents initiated numerous meetings and telephone conversations with the Juarez brothers, and one agent wore a hidden microphone during all of the meetings and also taped all telephone conversations. Trial trans., Nov. 12-14, 1991, at 79. The tapes of four conversations, on June 9, August 4, August 14 and August 15, were played for the jury; transcripts of the conversations on June 9, August 4 and August 15 were introduced as exhibits. Tapes or transcripts of the other conversations were not introduced. These conversations were described by testimony at trial. The defendants did not testify.

A.

In February 1990, Border Patrol Agent Everly informed Agent Murillo of the Bureau of Alcohol, Tobacco and Firearms that firearms were being sold at a swap meet east of Casa Grande, Arizona and that firearms were being sold to illegal aliens at swap meets in the area. The government also interviewed a minor who was arrested while in possession of a MAC-11 assault-type firearm; he said he bought it from a Hispanic male at the Casa Grande swap meet. Govt. Br. at 5-6. The government had no information linking Joe Juarez to illegal acts, and a background check of Joe Juarez revealed that he had no criminal record.

On June 9, 1990, Agent Murillo and Agent Serrano went to the Casa Grande swap meet, where they saw Joe Juarez with 10 to 15 firearms, including assault weapons, displayed for sale. The agents initiated a conversation. Joe Juarez stated that he was selling his personal gun collection because he was unemployed and needed money. Agent Murillo "concluded that there were many factors showing that Joe Juarez was selling other than a personal collection": The guns were in a glass display case of the type used in stores; many of the guns were new and some were still in boxes; and Joe Juarez showed Murillo a photograph of approximately 25 more weapons that he said were also in his collection. Govt. Br. at 6.

The June 9 conversation can be summarized as follows:

. Joe Juarez told Murillo that Murillo could own a fully automatic weapon or a "suppressor" (silencer) but that he should get it by December, because thereafter these items could not be purchased legally. Govt's E.R., Ex. A, at 3.

. Murillo asked Joe Juarez if the displayed weapons could be converted to full automatic. Joe replied that he could take them to someone who would do it and who might charge about $50. He then stated that kits could be purchased legally to convert the weapons to full automatic. When the agent asked a second time if Joe could convert the weapons, Joe demurred, saying that if he were caught with an unregistered automatic weapon, he would go to jail and lose everything. Id. at 5-8, 9.

. Murillo asked if he could get a suppressor. Joe responded that Murillo would have to fill out paperwork, or that he could make his own suppressor. The agent said he "[didn't] want to deal with it," and Joe informed him that suppressors "go by the serial numbers" and "it's a real touchy situation." Id. at 6-7.

. Murillo said he was shopping for a friend who did not want to fill out any paperwork. Joe replied that he (Joe) could sell guns without any paperwork, because the guns were in his personal collection, and he was not a dealer. Id. at 4, 10, 14.

. Murillo said he was from Tucson and asked Joe for his name and phone number so he could get back in touch with him. Joe at first refused, saying "Don't they have swap meets in Tucson?" but then gave Murillo his name and phone number. Id. at 10-11.

On June 19, 1990, Murillo called Joe Juarez at home and again talked about purchasing firearms. In this conversation, Murillo said the friend he was shopping for had "done time" and thus did not want to fill out any paperwork. Joe replied that the guns were his, and he was selling them because he needed the money. They agreed to meet.

On June 28, 1990, Murillo met Joe Juarez at a Circle K store in or near Casa Grande. Murillo was accompanied by Earl Morris, a convicted felon. Morris told Joe Juarez that he was a felon and was not allowed to have guns. According to the government, Joe said that if the weapon was traced back to him, he would deny knowing who bought it. Joe sold Morris a 9 mm. MAC-11 semiautomatic firearm. Joe also took Murillo and Morris to a van parked nearby, where they were introduced to Esteban Juarez. Esteban showed them several guns he had for sale, but no further purchases were made.

On July 5, 1990, Murillo called Joe Juarez and said he wanted to buy some guns for a friend. Joe expressed concern about selling any guns, because he had heard that some federal agents were in town. Murillo called again on July 18, 1990, and asked about guns for his friend. Joe Juarez said he had nothing to sell except some old rifles.

On August 4, 1990, Murillo and Morris went to the Casa Grande swap meet and approached Joe Juarez. They asked about buying handguns, and Joe then sold four handguns to Morris. Esteban Juarez was standing nearby, and he and Murillo discussed suppressors. Murillo noticed that Esteban was holding a barrel extension, and he asked if Esteban could rig up a suppressor. Esteban answered that he could, that it would cost about $200, and that if Murillo were caught he could unscrew the suppressor and dump out the contents. Murillo asked if Esteban could make a MAC-11 fully automatic and fit it with a suppressor. Esteban said he could for "about five" plus the cost of the gun.

On August 14, 1990, Murillo called Joe Juarez and asked about buying a fully automatic weapon with a suppressor. After some apparent prodding from Murillo, Joe agreed to sell a MAC-11 and a barrel extension.

Murillo called again on August 15, 1990, and asked about the gun. Joe described problems encountered with weapons converted to full automatic and said that he didn't like to do the conversions for this reason. He reminded Murillo several times that "you guys can do it," but Murillo again said he didn't know how. Joe Juarez eventually agreed to supply a MAC-11 and a barrel extension for $300 and said he thought his partner (identified as "Eric" but actually Esteban) could do the conversion and make the suppressor for an additional $300, bringing the total to $600.

Murillo called again on August 24, 1990, and confirmed the purchase of the automatic weapon with suppressor.

On September 1, 1990, Murillo and Agent Serrano went to the swap meet, where they found Joe and his brother Esteban Juarez. Murillo asked about purchasing two automatic weapons with suppressors. Esteban said he could have them ready in a couple of days and said the price would be $1,400 for both.

On September 5, 1990, Murillo called Joe Juarez and arranged to meet him at a K-Mart parking lot. Once there, he asked about the automatic weapons with suppressors, and Joe said they were having problems and were still working on them.

The final contact took place on September 12, 1990. Murillo and Serrano met Joe Juarez at the K-Mart parking lot. Joe led them to another location, where they met Esteban Juarez. Esteban said he did not have the weapons ready but that he had suppressors. When the agents were shown the suppressors in Esteban's truck, Joe and Esteban were arrested. The agents found twelve weapons in Joe Juarez' truck.

B.

On October 10, 1990, the grand jury returned a seven-count indictment charging the Juarez brothers with identical offenses related to the three suppressors seized at the time of the arrest. The indictment charged them with one count of conspiracy to possess unregistered firearms (silencers), in violation of 26 U.S.C. §§ 5861(d), (i) and 18 U.S.C. § 371 (count 1); three counts of possession of unregistered firearms (silencers), in violation of 26 U.S.C. § 5861(d) and 18 U.S.C. § 2 (aiding and abetting) (counts 2-4); and three counts of possession of firearms (silencers) not identified by serial numbers, in violation of 26 U.S.C. § 5861(i) and 18 U.S.C. § 2 (counts 5-7).

A ten-count superseding indictment was returned on April 24, 1991. The same seven counts were included (renumbered 4 through 10), and three new counts were added against Joe Juarez: dealing in firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A) and § 924(a)(1)(D); selling a gun to a convicted felon on June 28, 1990, in violation of 18 U.S.C. § 922(d) and...

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