U.S. v. Serrano

• Decision Date: 03 May 2005
• Docket Number: No. 04-2090.,04-2090.
• Citation: 406 F.3d 1208
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony SERRANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

406 F.3d 1208

UNITED STATES of America, Plaintiff-Appellee, v. Anthony SERRANO, Defendant-Appellant.

No. 04-2090.

United States Court of Appeals, Tenth Circuit.

May 3, 2005.

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David N. Williams, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Charles S. Aspinwall, Charles S. Aspinwall Ltd., Co., Los Lunas, NM, for Defendant-Appellant.

Before EBEL, BALDOCK, and LUCERO, Circuit Judges.

BALDOCK, Circuit Judge.

A grand jury indicted Defendant Anthony Serrano, a felon, on various firearms charges after law enforcement seized a 30.06 rifle from his home and a sawed-off shotgun from his vehicle. At trial, Defendant claimed he did not knowingly possess either the rifle or shotgun. An unpersuaded jury convicted Defendant of: (1) being a felon in possession of a sawed-off shotgun in violation of 18 U.S.C. § 922(g)(1) ("count I"); (2) knowingly possessing a sawed-off shotgun not registered in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. § 5861(d) ("count II"); and (3) being a felon in possession of a 30.06 rifle in violation of 18 U.S.C. § 922(g)(1) ("count III"). The district court sentenced Defendant to 262 months imprisonment. Defendant appeals, arguing (1) the coercive and intimidating conduct of the district judge and prosecutor dissuaded two of his witnesses from testifying in violation of his constitutional right to present a defense, (2) the district court erred in refusing to grant his two witnesses immunity after they invoked the privilege against self incrimination, and (3) the district court unconstitutionally increased his sentence under the United States Sentencing Guidelines' ("Guidelines") obstruction of justice provision, see U.S.S.G. § 3C1.1, and the Armed Career Criminal Act ("ACCA"), see 18 U.S.C. § 924(e). We have jurisdiction, 28 U.S.C. § 1291, and affirm.

I.

With respect to the felon-in-possession charges, the government had the burden of proving: (1) Defendant knowingly possessed the sawed-off shotgun (count I) and 30.06 rifle (count III); (2) Defendant had been convicted of a felony offense before he possessed the shotgun and rifle; and (3) Defendant's possession of the shotgun and rifle was in or affecting interstate commerce. See 18 U.S.C. § 922(g)(1); United States v. Griffin, 389 F.3d 1100, 1104 (10th Cir.2004). With respect to the possession of an unregistered firearm charge (count II), the government had the burden proving: (1) Defendant knowingly possessed the sawed-off shotgun, see Staples v. United States, 511 U.S. 600, 602, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); (2) the sawed-off shotgun had a barrel less than 18 inches in length or an overall length of less than 26 inches, see 26 U.S.C. § 5845(a)(2); (3) Defendant knew the characteristics or features of the sawed-off shotgun, see Staples, 511 U.S. at 602, 619, 114 S.Ct. 1793; (4) the sawed-off shotgun was in operating condition, see 26 U.S.C. § 5845(d); and (5) the sawed-off shotgun was not registered to Defendant in the National Firearms Registration and Transfer Record, see id. § 5861(d).

At trial, Defendant admitted he was a convicted felon, see Old Chief v. United States, 519 U.S. 172, 191-92, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), and that the 30.06 rifle and sawed-off shotgun affected interstate commerce. The government also presented uncontroverted evidence that (1) the shotgun had a 13-inch barrel and an overall length of 23 inches, (2) the shotgun operated as designed, and (3) Defendant did not register the shotgun in the National Firearms Registration and Transfer Record. The sole disputed issue at trial was whether Defendant knowingly possessed the shotgun and rifle.

The government presented the testimony of several witnesses in its case-in-chief to prove Defendant knowingly possessed the sawed-off shotgun and 30.06 rifle. With respect to the sawed-off shotgun, two sheriff's deputies testified they discovered the shotgun in Defendant's vehicle after a traffic stop. The deputies found the shotgun within Defendant's reach underneath the vehicle's front seat. The passenger in the vehicle at the time of the stop, Carlos Najar, testified the shotgun did not belong to him. With respect to the 30.06 rifle, Defendant's former neighbor, adopted daughter, now ex-wife (Mary Serrano), and two former brothers-in-law all testified Defendant possessed the rifle.

After the government rested, Defendant offered the jury an alternative theory. Defendant, in his opening statement, informed the jury that Michael Serrano (Defendant's son) and Manuel Franco (Najar's roommate) would testify the sawed-off shotgun belonged to Najar. The evidence would also show, according to Defendant, Mrs. Serrano placed her 30.06 rifle in their house and then called the authorities to report Defendant's illegal possession of the rifle. Defendant, consistent with his theory of the case, called Michael Serrano as his second witness. Shortly after Michael Serrano took the stand, however, the government requested a bench conference. The government's attorney told the district judge that he thought Michael Serrano "should be advised of his constitutional rights ... and the reason for that is because [the government] has interviewed him. He has admitted that he was in the possession together with Carlos Najar of a sawed-off shotgun, and if he's going to testify under oath, he's going to admit to it."¹

The court, outside the presence of the jury, questioned Michael Serrano and learned he had not discussed his constitutional rights, especially his right against self incrimination, with a lawyer. The colloquy between the district court and Michael Serrano proceeded as follows:

THE COURT: ... Mr. Serrano, how old are you?

THE WITNESS: I'm 23.

THE COURT: All right. You may be asked a number of questions here by one of the attorneys that may require you to give testimony about things that you know concerning the shotgun. The government has indicated to me that you have given a statement concerning the sawed-off shotgun. You may be asked questions about matters concerning yourself and that shotgun. And before I permit any questioning about the shotgun and any involvement you may have had with that weapon, if any — I don't know, I don't know what the statements are at this point because the questions have not yet been asked — I need to ask you if you have talked to a lawyer about any of your constitutional rights, specifically the right against self-incrimination?

THE WITNESS: No, ma`am.

THE COURT: All right. I must advise you that a person such as yourself who is now a witness having been sworn to give testimony in this case, you as a witness ha[ve] the privilege under the 5th Amendment to the United States Constitution to decline to respond to a question if that answer would tend to incriminate you. That is, if that answer would tend to indicate that you were guilty of a crime or would furnish a link in the chain of evidence that would be needed to prosecute you for a crime.

I don't know specifically what information you have and what answers you would give or statements that you would make in response to questions that may be asked of you during the course of your testimony here. However, based upon the representations made by the lawyer for the government here, there may be matters that you would be questioned about that would invoke consideration of the 5th Amendment right. And so when I say that, I ask again whether you have talked to a lawyer about any of these matters?

THE WITNESS: No, ma`am.

THE COURT: Okay. Do you wish to confer with a lawyer about this before you give any further testimony?

THE WITNESS: No, ma`am.

THE COURT: Can you explain to me why? Without going into details about the statement or anything about the gun, just tell me why you feel it is not necessary to talk to a lawyer.

THE WITNESS: Because I'm just telling the truth about everything.

THE COURT: I understand that. Has anyone advised you or talked to you about the consequences, the legal consequences that could occur if you give or make certain statements about the gun, the shotgun, and about your involvement with the shotgun?

THE WITNESS: No, ma`am.

THE COURT: All right. I'm going to — I'm not in a position to determine at this moment that this witness understands the nature of the 5th Amendment privilege. I think he needs counsel, and I'm not going to permit any further questioning until he has had an opportunity to confer with counsel....

The court then appointed an attorney to confer with the witness and recessed. Michael Serrano exercised his Fifth Amendment privilege against self incrimination after he conferred with his attorney.

Next, Defendant's attorney informed the district court he anticipated calling Najar's roommate, Manuel Franco, to testify. Franco, according to Defendant's proffer, would testify Najar owned the sawed-off shotgun and, on the night in question, armed himself with the shotgun before he got into Defendant's vehicle. Franco's testimony, however, raised the same Fifth Amendment concerns as Michael Serrano's proffered testimony (i.e., he ran the risk of being charged with misprision of felony or possession of an unregistered illegal firearm if he testified). The district judge similarly appointed counsel to advise Franco of his constitutional rights. Franco exercised his Fifth Amendment privilege after he conferred with his attorney.

The district court found Michael Serrano and Manuel Franco properly invoked their Fifth Amendment privilege because the testimony of both witnesses could furnish a link in the chain of evidence needed to prosecute them or subject them to the possibility of prosecution. See Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951) (explaining the "privilege afforded [by the Fifth Amendment] not only extends...