Convictions for Illegal Alien in Possession of Firearms, Drug Charges Affirmed
US v. Baltazar Mendez, Docket No. 06-3282 (10th Cir. 1/24/08)(published):
The Tenth Circuit affirms the defendant's various convictions for unlawful firearms possession and maintaining a drug house. Officers in Wichita, KS, executed a search warrant on the defendant's residence (the warrant was obtained based on an investigation into a home invasion and kidnapping). The officers found numerous weapons, drugs, and items associated with selling drugs. Much of this stuff was in a particular bedroom, including a shotgun, meth, a handgun, and a notebook with the name "MENDEZ" on the inside cover and including notations that looked like records of drug sales. Defendant's fingerprint was on the notebook. A second shotgun and drugs were found elsewhere in the house, and Mr. Mendez's license and bills with his name on them were in the living room. Mr. Mendez waived his Miranda rights and told officers that he lived in the house, had access to all parts of the house, and had two roommates. He admitted owning the handgun and the scales, and to buying and using meth and cocaine. He said he knew about the shotguns but they weren't his. He provided a false social security number and admitted he was born in Mexico.
The court rejected Mr. Mendez's argument that there was insufficient evidence to support his convictions for being an alien unlawfully in the United States in possession of the shotguns. Defendant argued that there was insufficient evidence to prove a nexus between him and the shotguns because there were multiple tenants in the house. As to the shotgun found in the bedroom, the court found sufficient nexus because it was with the ledger that was labeled "MENDEZ", he admitted knowing about it, and he was the primary tenant. The second shotgun, although in another bedroom, was in the open and accessible to anyone in the house. Thus, the COA concluded that a reasonable jury could find that Mendez had constructive possession of both shotguns. There was also sufficient evidence that Mr. Mendez was an alien where he admitted being born in Mexico, he had a false social security number, and the government introduced evidence that it lacked evidence of any valid authorization for Mr. Mendez to be in the US.
The COA rejected Mr. Mendez's arguments that evidence from the Immigration and Customs Enforcement database, the drug ledger, and statements of a confidential informant were inadmissible hearsay and admitted in violation of his Confrontation Clause rights. The evidence of the ICE database was not hearsay because an agent testified in court regarding the database and his search of it, using both Mendez's name and the social security number he provided. The information in the database was not excluded by the hearsay rule because it was a public record under FRE 803(8)(A)-(B). FRE 803(10) further provides that the absence of a public record is not excluded by the rule against hearsay. The COA further concluded that the ICE database is not testimonial because Crawford suggests that public records "fall outside the testimonial ambit of the Confrontation Clause."
The drug ledger was properly admitted because it was introduced as a "tool of the trade" (drug-selling) and not for the purpose of showing that the persons in the ledger owed those amounts of money. It was not testimonial because it was not kept for the primary purpose of aiding police in a criminal prosecution, even though it may have been later used for that purpose.
The COA rejected the argument about the alleged statements by a CI on the basis that, on cross examination, an officer testified that a search warrant was issued; he did not testify about statements made by a CI.
Mr. Mendez's Brady violation argument was also rejected. He complained that certain field notes taken by officers were not disclosed in pretrial discovery. Defense counsel learned of the notes during trial and was able to review them and use them on cross-examination. On appeal, Mendez did not identify any exculpatory or material evidence in the notes, and -- although belated -- the notes were disclosed and used, so reversal was not warranted.
The Tenth Circuit affirms the defendant's various convictions for unlawful firearms possession and maintaining a drug house. Officers in Wichita, KS, executed a search warrant on the defendant's residence (the warrant was obtained based on an investigation into a home invasion and kidnapping). The officers found numerous weapons, drugs, and items associated with selling drugs. Much of this stuff was in a particular bedroom, including a shotgun, meth, a handgun, and a notebook with the name "MENDEZ" on the inside cover and including notations that looked like records of drug sales. Defendant's fingerprint was on the notebook. A second shotgun and drugs were found elsewhere in the house, and Mr. Mendez's license and bills with his name on them were in the living room. Mr. Mendez waived his Miranda rights and told officers that he lived in the house, had access to all parts of the house, and had two roommates. He admitted owning the handgun and the scales, and to buying and using meth and cocaine. He said he knew about the shotguns but they weren't his. He provided a false social security number and admitted he was born in Mexico.
The court rejected Mr. Mendez's argument that there was insufficient evidence to support his convictions for being an alien unlawfully in the United States in possession of the shotguns. Defendant argued that there was insufficient evidence to prove a nexus between him and the shotguns because there were multiple tenants in the house. As to the shotgun found in the bedroom, the court found sufficient nexus because it was with the ledger that was labeled "MENDEZ", he admitted knowing about it, and he was the primary tenant. The second shotgun, although in another bedroom, was in the open and accessible to anyone in the house. Thus, the COA concluded that a reasonable jury could find that Mendez had constructive possession of both shotguns. There was also sufficient evidence that Mr. Mendez was an alien where he admitted being born in Mexico, he had a false social security number, and the government introduced evidence that it lacked evidence of any valid authorization for Mr. Mendez to be in the US.
The COA rejected Mr. Mendez's arguments that evidence from the Immigration and Customs Enforcement database, the drug ledger, and statements of a confidential informant were inadmissible hearsay and admitted in violation of his Confrontation Clause rights. The evidence of the ICE database was not hearsay because an agent testified in court regarding the database and his search of it, using both Mendez's name and the social security number he provided. The information in the database was not excluded by the hearsay rule because it was a public record under FRE 803(8)(A)-(B). FRE 803(10) further provides that the absence of a public record is not excluded by the rule against hearsay. The COA further concluded that the ICE database is not testimonial because Crawford suggests that public records "fall outside the testimonial ambit of the Confrontation Clause."
The drug ledger was properly admitted because it was introduced as a "tool of the trade" (drug-selling) and not for the purpose of showing that the persons in the ledger owed those amounts of money. It was not testimonial because it was not kept for the primary purpose of aiding police in a criminal prosecution, even though it may have been later used for that purpose.
The COA rejected the argument about the alleged statements by a CI on the basis that, on cross examination, an officer testified that a search warrant was issued; he did not testify about statements made by a CI.
Mr. Mendez's Brady violation argument was also rejected. He complained that certain field notes taken by officers were not disclosed in pretrial discovery. Defense counsel learned of the notes during trial and was able to review them and use them on cross-examination. On appeal, Mendez did not identify any exculpatory or material evidence in the notes, and -- although belated -- the notes were disclosed and used, so reversal was not warranted.
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