U.S. v. Mendez

• Citation: 514 F.3d 1035
• Decision Date: 24 January 2008
• Docket Number: No. 06-3282.,06-3282.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Baltazar MENDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

514 F.3d 1035

UNITED STATES of America, Plaintiff-Appellee, v. Baltazar MENDEZ, Defendant-Appellant.

No. 06-3282.

United States Court of Appeals, Tenth Circuit.

January 24, 2008.

Carl F.A. Maughan, Maughan & Maughan, LC, Wichita, KS, for Defendant-Appellant.

William R. Mott, Special Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), District of Kansas, Wichita, KS, for Plaintiff-Appellee.

Before TACHA, HOLLOWAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Baltazar Mendez was convicted of several counts of unlawful firearm and ammunition possession in violation of 18 U.S.C. §§ 922(g)(3) and 922(g)(5), and maintaining a residence for the purpose of storing, distributing and using controlled substances in violation of 21 U.S.C. § 856(a)(2). Mendez filed a motion for a new trial based on alleged Brady and Confrontation Clause violations, which the district court denied. Mendez also moved for a judgment of acquittal based on insufficient evidence to sustain a conviction. The district court granted the motion with respect to one charge and denied the motion with respect to the remaining charges. Exercising jurisdiction pursuant to. 28 U.S.C. § 1291, this court affirms the district court.

I. Background

Mendez lived on Vassar Court in Wichita, Kansas. On December 9, 2005, agents from the Kansas Bureau of Investigation (KBI) and the Wichita Police Department (WPD) obtained and executed a warrant on the residence.¹

Once in the house, KBI agents uncovered weapons, drugs and items commonly used in the sale of drugs. In the southeast bedroom, officers found drug-related items located in a dresser drawer, including plastic baggies, electronic scales, and methylsufone, which is often used as a cutting agent for methamphetamine. Under the same dresser, officers found a nylon bag containing a .380 handgun with a loaded magazine containing eleven rounds. In the pocket of a shirt hanging in the closet, officers discovered a baggie with a mixture containing over ten grams of methamphetamine. The mixture had a street value of about $1,000, but was possibly worth more if the drugs were further cut. Under the mattress of the bed, officers found a Springfield Arms shotgun and a notebook. The notebook contained the name "Mendez" in large letters written on the inside cover, along with other names next to figures containing dollar amounts, indicating a running total for various individuals. After testing, the government determined Mendez's fingerprints were on the notebook and it presented evidence that the notebook was a ledger used to keep track of drug transactions. Other documents belonging to the defendant were also uncovered in the southeast bedroom.

In a northwest bedroom, a Remington 12-gauge sawed-off shotgun was uncovered, with shotgun shells nearby. In the living room of the house, officers found documents bearing the defendant's name, including a driver's license and an energy bill. Inside an entertainment cabinet, between the living room and kitchen, multiple types of ammunition were located. Officers found a straw with a mirror in the kitchen, which later tested positive for cocaine. Several ecstacy pills were also found on top of the refrigerator. Mendez was arrested and agents found a glass smoking pipe and a .44 caliber bullet in his pocket.

Mendez waived his Miranda rights and agreed to talk with the police officers. He stated he lived at the Vassar Court residence, he had access to all parts of the house, and that he had two roommates who paid him rent to stay at the residence. Mendez admitted the .380 handgun was his and that he kept it for protection because he had been robbed. He also admitted to regularly using and purchasing methamphetamine and sometimes using cocaine. Mendez used about 1/16 of an ounce of methamphetamine a day by smoking it through a pipe. He paid about $500 to purchase a half ounce every three to four weeks.

Mendez also admitted the following to the officers: he typically kept his methamphetamine in his shirt pocket; he sometimes slept in the one bed in the house and at other times on the couch; the electronic scales the agents found were his, and he used them to make sure he was not getting "ripped off" when he purchased his drugs; and he knew both shotguns were in the house, but disclaimed ownership. Mendez also told the agents he was born in Mexico in 1976 and provided the agents with a social security number, which was later shown to be false and invalid. Mendez gave the same false social security number to the Vassar Court landlord on his lease application.

On February 7, 2006, a grand jury returned a twelve-count superseding indictment. Mendez was charged with possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a) (Count 1); possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count 2); possession of a Browning .380 caliber pistol while being an unlawful user of any controlled substance in violation of 18 U.S.C. § 922(g)(3) (Count 3); possession of a Springfield Arms shot gun while being an unlawful user of any controlled substance in violation of 18 U.S.C. § 922(g)(3) (Count 4); possession of a Remington shotgun while being an unlawful user of any controlled substance in violation of 18 U.S.G. § 922(g)(3) (Count 5); possession of a .44 cartridge of ammunition while being an unlawful user of any controlled substance in violation of 18 U.S.C. § 922(g)(3) (Count 6); eluding inspection after entering the United States at a place other than designated by the government in violation of 8 U.S.C. § 1325(a)(1)-(2) (Count 7); possession of a Browning .380 pistol by an alien not lawfully in the United States in violation of 18 U.S.C. § 922(g)(5) (Count 8); possession of a Springfield Arms shotgun by an alien not lawfully in the United States in violation of 18 U.S.C. § 922(g)(5) (Count 9); possession of a Remington shotgun by an alien not lawfully in the United States in violation of 18 U.S.C. § 922(g)(5) (Count 10); possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841 and 5861(d) (Count 11); and knowingly and intentionally managing and controlling a residence for the purpose of unlawfully storing, distributing 'and using a controlled substance in violation of 21 U.S.C. § 856(a)(2) (Count 12).

At trial, Immigration and Customs Enforcement ("ICE") Agent Carl Hummel testified that someone born in Mexico is usually a citizen of Mexico. He also testified that he ran a search in the U.S. ICE Central Index System, a nationwide database containing a record of documents used for entry into the United States, such as permanent residence cards, border crossing cards, and certificates of naturalization. When Agent Hummel queried the database under Mendez's name, date of birth, and the social security number he provided the agents, there was no match.

The government also offered the testimony of the Vassar Court landlord, who explained he had leased the premises to Mendez's girlfriend, Anjelica Luna. Luna had contacted the landlord at a later time and asked that Mendez be added to the lease. The landlord usually received the rent directly from Mendez.

At the close of the government's case-in-chief, the court dismissed Count 11. The jury later acquitted Mendez on Counts 1 and 2. He was convicted on Counts 3 through 10 and Count 12. Mendez made a Rule 29 motion for acquittal based on insufficient evidence to sustain a conviction. Fed.R.Crim.P. 29. The district court granted the motion on Count 7, eluding inspection after illegally entering the United States, because there was no evidence the act had occurred within the five-year statute of limitations period. The court denied the motion on the remaining counts of conviction. Mendez also moved for a new trial, based on alleged Brady and Confrontation Clause violations. Fed. R.Crim.P. 33. The court denied the motion.

Mendez raises three arguments in this appeal.² First, he argues that the government impermissibly stacked inferences upon inferences to prove the firearm possession and alien status charges.³ Second, Mendez claims the ICE database information, drug ledger, and statements of a "confidential informant" were inadmissible hearsay and violated the Sixth Amendment's Confrontation Clause. Third, he argues the government unlawfully withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

II. Sufficiency of the Evidence

Mendez argues the government relied on an impermissible "crude stacking of inferences" to prove Mendez possessed the two shotguns and that he was an illegal alien. Specifically, he argues the government asked the jury to improperly infer that one resident of a house possesses all of the items belonging to any roommate who may also be dwelling in the same house. Further, Mendez identifies as reversible error the failure of the government to provide sufficient evidence that he was an illegal alien.

This court reviews sufficiency of the evidence de novo. United States v. Stiger, 413 F.3d 1185, 1193 (10th Cir.2005). In reviewing the evidence, this court considers the entire record, including both direct and circumstantial evidence, together with the reasonable inferences to be drawn from it. Id. Evidence is sufficient to sustain a conviction if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id. "We rely on the jury, as the fact finder, to resolve conflicting testimony, weigh the evidence, and draw inferences from the facts presented." Id. at 1194 (citation and quotation omitted).

A. Possession of Firearms

Mendez argues the government failed to prove that he possessed the Springfield Arms and Remington shotguns charged in Counts 4, 5, 9 and 10 of the indictment. Mendez relies on United States v. Jones, 49 F.3d 628,...