U.S. v. Jiminez

• Decision Date: 29 August 2000
• Docket Number: No. 98-5063,98-5063
• Citation: U.S. v. Jiminez, 224 F.3d 1243 (11th Cir. 2000)
• Parties: (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. Alberto Rodriguez JIMINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1243

224 F.3d 1243 (11th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellee, v.Alberto Rodriguez JIMINEZ, Defendant-Appellant.

No. 98-5063.

United States Court of Appeals, Eleventh Circuit.

Aug. 29, 2000.

Sept. 11, 2000.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Florida.(No. 96-14015-CR-EBD), Kenneth L. Ryskamp, Judge.

Before TJOFLAT, MARCUS and CUDAHY^*, Circuit Judges.

CUDAHY, Circuit Judge:

A federal jury convicted Alberto Jimenez of knowingly and intentionally conspiring to possess with intent to distribute methamphetamine in violation of 21 U.S.C. 846.The district court sentenced Jimenez to 262 months in prison.Prior to the trial, Jimenez had moved to suppress, on various grounds, evidence obtained through a wiretap and by the search of his residence.These motions were denied.Jimenez appeals both the denial of these suppression motions and his sentence.We affirm

I.Facts and Disposition Below

In early March of 1995, the United States Customs Service commenced an investigation, in conjunction with the Highlands County Sheriff's Office and other law enforcement agencies, of the importation of methamphetamine from Mexico.That investigation led them to suspect Alberto Jimenez, who during the time of the investigation was living with his girlfriend Mary Evelyn Sims.From May 11 to May 31, 1995, the agents and police maintained a valid wiretap on the telephone line at 902 West Prairie Street in Avon Park, Florida.Jimenez and Sims lived at that address, and the investigating officers intercepted about 1200 of their conversations.

On May 27, 1995, the police arrested Jimenez in his car in nearby Frost Proof, Florida.When they searched his car, the police discovered six foil-wrapped bricks of marijuana, a handgun and ammunition.Jimenez was released on bond shortly after his arrest.The Sheriff's Office then applied for a search warrant, and the Highlands County Circuit Court authorized the search for evidence of marijuana and methamphetamine possession at the 902 West Prairie Street residence.When the agents and police executed the search warrant on May 29, 1995, both Jimenez and Sims were present, and Jimenez drew a gun from under a mattress.The police safely disarmed Jimenez and searched the house.As a result of that search, the agents seized a zippered "drug ledger" containing records of methamphetamine sales, $5,677 in cash, several firearms, $14,500 in uncashed payroll and travelers' checks and a small amount of marijuana.

A little less than a year later, a federal grand jury indicted Jimenez and seven others for knowingly and intentionally conspiring to possess with intent to distribute methamphetamine in violation of 21 U.S.C. 846, for money laundering in violation of 18 U.S.C. 1956(a)(1)(B)(i) and 1956(h), and for knowingly and intentionally using a telephone in facilitation of a felony in violation of 21 U.S.C. 843(b).Jimenez filed a motion to suppress evidence discovered at his home on May 29, 1995, alleging that the search warrant affidavit was defective and did not demonstrate probable cause, a motion to suppress wiretap evidence and a motion to suppress physical evidence alleging a violation of the "knock and announce" rule.After conducting hearings, the federal magistrate judge recommended that the three motions be denied.The district court adopted the magistrate judge's report and recommendations and denied Jimenez's pretrial motions.

At trial, the government introduced about 33 of the recorded telephone conversations into evidence.In two of the conversations, Sims made explicit references to Jimenez's physically abusing her.Other conversations contained coded references to marijuana and methamphetamine transactions, and both investigating officers and individuals who had conducted drug transactions with Jimenez and Sims explained the meanings of the various code words.One of these witnesses, Roger Fortner, testified extensively about drug transactions with Sims's son, Wayne Elder, and his own direct dealings with Jimenez and Sims.Lucy Hodge Parker testified that she bought methamphetamine from Sims and resold it for a profit, but only after Jimenez gave Sims the initial permission to sell.Joseph Parker testified that he was asked to follow Sims (as a guard) when she would deliver methamphetamine to customers, which she could only do after Jimenez gave her permission.The government introduced evidence of Jimenez's arrest for marijuana and firearm possession on May 27, 1995.It also introduced the physical evidence seized during the search of 902 West Prairie Street-including the "drug ledger" that contained detailed information about methamphetamine transactions and was used to keep track of amounts owed by various buyers.The government explained that Jimenez had drawn a gun on the police when they entered to search the house.

The jury found Jimenez guilty of the methamphetamine conspiracy on March 2, 1998, and on July 22, the district court conducted a sentencing hearing.The probation officer determined that Jimenez distributed approximately 8.8 pounds of methamphetamine during the course of the conspiracy, and, in the Presentence Investigation Report, assigned a base offense level of 34 under the Sentencing Guidelines.The probation officer recommended a two-level increase under Guidelines2D1.1(b)(1) because firearms had been seized from Jimenez's car and house.The probation officer also recommended a four-level increase under 3B1.1(a) for Jimenez's supervisory role in the extensive operation.At sentencing, Jimenez disputed his role in the enterprise, claiming that he was merely a partner of Sims and had no control over the resale activities of the people to whom they sold methamphetamine.The district court approved the firearm enhancement and found that Jimenez had performed some supervision, adjusting his offense level by two under 3B1.1(c)-instead of four under 3B1.1(a)-for his supervision of Sims.The district court thus assigned a total offense level of 38, and it sentenced Jimenez to 262 months imprisonment.Jimenez appeals.

II.Discussion

On appeal, Jimenez raises three issues: (1) Did the district court err by denying his motion to suppress the evidence seized during the search of the West Prairie Street residence on May 29, 1995?(2) Did the district court abuse its discretion by not excluding evidence of Jimenez's uncharged marijuana and firearm possession and by not excluding evidence of his physical abuse of Sims?And (3) did the district court err by applying the two-level enhancement under 3B1.1(c) of the Sentencing Guidelines.We address, and reject, each of these claims in turn.

A.The Search Warrant

We review the district court's denial of Jimenez's motion to suppress evidence under a mixed standard of review.SeeUnited States v. Gil, 204 F.3d 1347, 1350(11th Cir.2000).We review the district court's findings of fact under the clearly erroneous standard and the district court's application of law to those facts de novo.Seeid.Jimenez first argues that the application for the warrant was fatally deficient because it failed to establish the necessary nexus between him and the residence to be searched.He apparently concedes that the application's description of the place to be searched was sufficient to describe the house located at 902 West Prairie Street in Avon Park, Florida, but he vociferously argues that "there is a complete absence of any facts to support a finding that the residence where Simms and Jimenez live and supposedly conduct their drug business is in fact the house described in the Application."Br.at 25(emphasis in original).

While it is true that a warrant affidavit must show that there is a fair probability that contraband or evidence of a crime will be found at the particular place to be searched, seeIllinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527(1983), Jimenez overstates his case by claiming that there are no facts here establishing the necessary nexus.The affidavit usually refers to the place to be searched as "their residence"-referring to Jimenez and Sims-but it does not, as Jimenez points out, provide facts that show that Jimenez and Sims lived there.Although the affidavit never does demonstrate that Jimenez lives in that house, it didn't have to because there is one statement in the affidavit that clearly establishes the nexus between 902 West Prairie Street and evidence of a crime (regardless whether Jimenez actually lived there): "The information indicates that Jimenez has secreted large sums of currency in the residence and the currency is derived from the distribution of methamphetamine and cannabis."It is clear to us that "the residence" refers to the house described in the warrant application, which, as we have noted, Jimenez has conceded is 902 West Prairie Street.We find that the affidavit shows the required nexus-that there was a fair probability that contraband or evidence of a crime would be found there-by demonstrating the link between Jimenez's illegal activity and the house.

Jimenez next argues that the affidavit in support of the application contains "only the Affiant's conclusions as to the evidence derived from the wiretap" and fails "to provide any underlying facts " from which a probable cause determination could have been made by the issuing judge.Br.at 18(emphasis in original).The paragraph Jimenez complains about states, in full:

During the past eighteen days your Affiant received information from a Title III Wire intercept.The information obtained indicates that Evelyn Sims and Alberto Jimenez are involved in the transportation, distribution, and sales of Methamphetamine and Cannabis on a large scale.The information indicates that Sims and Jimenez conduct the methamphetamine and cannabis transactions at their residence and also deliver the methamphetamine and cannabis to...