                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0915n.06
                           Filed: December 20, 2006

                                            No. 05-6887

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
JOVAN MENDIZABAL,                                 )    EASTERN DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellant.                       )




       Before: MARTIN and COOK, Circuit Judges; and BERTELSMAN, District Judge.*


       COOK, Circuit Judge. Jovan Mendizabal was convicted of conspiracy to distribute or

possess with intent to distribute five kilograms or more of cocaine, 21 U.S.C. § 841(a), and

possession of a firearm in furtherance of a drug trafficking offense, 18 U.S.C. § 924(c). Mendizabal

had filed two pretrial motions to suppress, alleging (1) that officers violated the knock-and-announce

rule when executing a search warrant for his residence and (2) that there was insufficient probable

cause to issue that search warrant. He also had moved to dismiss the indictment on the ground that

the government used his immunized testimony against him. The court denied the motions, and




       *
        The Honorable William O. Bertelsman, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 05-6887
United States v. Mendizabal


Mendizabal appeals. He also appeals his § 924(c) conviction on the ground that there was

insufficient evidence for a jury to convict. We affirm.




                                                  I


       Federal agents sought a search warrant for Jovan Mendizabal’s residence in Knoxville,

Tennessee. Drug Enforcement Agency (DEA) Agent Don White testified before the magistrate

judge that information provided by a confidential source supported the warrant. Agent White had

a history with this source, and the source claimed to have been inside Mendizabal’s residence.


       DEA Agent Mike Long also provided a six-page affidavit supporting issuance of the warrant,

in which he stated that his training and seventeen years of experience had taught him that “drug

traffickers maintain books, records, receipts, notes, ledgers, and other papers,” which are “commonly

maintained where drug traffickers have ready access to them, i.e. homes . . . .” The affidavit states

that a confidential source told Agent Long that he purchased cocaine from Mendizabal on a weekly

basis and that Mendizabal claimed people owed him about $20,000 from his cocaine sales. The

affidavit also states that on October 1, 2004, the source went to Mendizabal’s home to arrange future

cocaine purchases. The source was wearing a recording device that allowed Agent Long to overhear

Mendizabal discuss his cocaine business. Several days later, the source met with Mendizabal in a




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United States v. Mendizabal


parking lot and purchased three ounces of cocaine, for which he paid $2,700 in marked bills. The

magistrate judge issued the warrant.


       Before officers executed the search warrant, Agent Long conducted a controlled purchase at

the Knoxville Center Mall and arrested Mendizabal. Officers confiscated about 250 grams of

cocaine from Mendizabal’s vehicle. Agent Long and another officer interviewed him, and according

to Agent Long’s notes, Mendizabal admitted to selling ten customers cocaine in four-and-one-half-

ounce quantities or less.


       Agent White waited until Mendizabal was in custody before executing the search warrant.

Agent White knocked three times at Mendizabal’s front door and announced the officers’ presence.

When there was no response after about ten seconds, the officers hit the front door with a ram.

Eventually, a door panel popped out and Agent White was able to reach in, unlock the door, and go

inside. This entry took about forty-five seconds to one minute. During the search, officers seized

cocaine and a Smith & Wesson Walther P22 handgun from a safe.


                                                II


       The following day, authorities charged Mendizabal with conspiracy to distribute or possess

with intent to distribute 500 grams or more of cocaine. Mendizabal made a proffer, and authorities

used this information to charge Chris Curry and Mike Boyd with conspiracy to distribute or possess

with intent to distribute five kilograms or more of cocaine. Authorities then filed a Superseding


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United States v. Mendizabal


Indictment against Mendizabal charging five kilograms of cocaine (an increase from the original

charge of 500 grams or more). The Superseding Indictment also charged Mendizabal with

possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C.

§ 924(c).


       Before trial, Mendizabal moved to suppress evidence, arguing (1) that officers executing the

warrant did not comply with federal “knock-and-announce” requirements, and (2) that there was

insufficient probable cause to support the issuance of a search warrant. The district court adopted

the magistrate judge’s recommendations and denied the motions to suppress. First, the court found

the officers justified in entering only ten seconds after knocking because they did not know whether

Mendizabal’s roommates had drugs or access to weapons. Second, the district court rejected

Mendizabal’s argument that the search warrant did not “make any connection between the residence

to be searched and the facts of criminal activity that the officer set out in his affidavit.” Moreover,

the court concluded that the officers acted with objective good faith in relying on the search warrant.


       Mendizabal also moved for a Kastigar hearing or, alternatively, to dismiss the indictment,

alleging that authorities improperly used statements for which he had been granted immunity.

Mendizabal feared both that the statements in his proffer might have been used in the investigation

and presented to the grand jury and that they might be used at his trial. The district judge adopted

the magistrate judge’s finding that a Kastigar hearing was not required. After reviewing grand-jury

testimony, the district court agreed that apart from one question and one answer regarding


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United States v. Mendizabal


Mendizabal’s gun possession, there was no evidence that the government breached the proffer

agreement. And the district court agreed that even if the information about the gun came from

Mendizabal’s proffer, there was no material breach of the proffer agreement because other evidence

before the grand jury established probable cause on the § 924(c) count.


       A jury convicted Mendizabal on both counts, and the court sentenced him to 120 months on

the drug conspiracy count and a mandatory consecutive term of 60 months on the § 924(c) count.

On appeal, Mendizabal renews the arguments from his three pre-trial motions and also argues that

there was insufficient proof for a reasonable jury to conclude that he possessed a firearm in

furtherance of a drug trafficking crime.


                                                III


Probable Cause in Support of the Search Warrant


       Mendizabal argues that the district court should have suppressed evidence seized from his

residence because the search warrant did not identify a nexus between Mendizabal’s residence and

his alleged drug activities. When reviewing a district court’s denial of a motion to suppress, we

review factual findings for clear error and conclusions of law de novo. United States v. Pruitt, 458

F.3d 477, 480 (6th Cir. 2006). We consider the evidence in the light most likely to support the

district court’s conclusion. Id. Applying this standard, we discern no error in the district court’s

denial of the suppression motion.


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United States v. Mendizabal


       The Fourth Amendment provides that a judge shall not issue a search warrant unless there

is a finding of “probable cause, supported by oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Probable cause

to search is “a fair probability that contraband or evidence of a crime will be found in a particular

place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). “There must . . . be a ‘nexus between the place

to be searched and the evidence sought.’” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.

2004) (en banc) (quoting United States v. Van Shutters, 163 F.3d 331, 336–37 (6th Cir. 1998)).


       We conclude that a nexus existed because the search warrant was not limited to a search for

drugs. Rather, it also directed officers to look for documentary evidence of drug sales (books,

records, letters of credit, and electronic media), as well as drug paraphernalia such as scales and

baggies. Agent Long testified that documentation and paraphernalia are often found in drug dealers’

homes, and this testimony is consistent with this court’s prior observations. See, e.g., United States

v. Jones, 159 F.3d 969, 975 (6th Cir. 1998) (“[I]n the case of drug dealers, evidence is likely to be

found where the dealers live.”) (citation omitted). Therefore, even absent evidence that any drug

transactions occurred at Mendizabal’s house, there was “a fair probability that contraband or

evidence of a crime [would] be found” in the house. See Gates, 462 U.S. at 238.


       Even if the warrant failed to show a nexus between Mendizabal’s criminal activities and his

house—and thus was not supported by probable cause—the Leon good-faith exception would allow

use of the evidence found at Mendizabal’s residence. Although Mendizabal characterizes Agent


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United States v. Mendizabal


Long’s affidavit as “bare bones” and alleges that “the first four pages of the affidavit, the last page

and attachment B are simply conclusory allegations that would be made in virtually any similar case

by the affiant,” we do not agree that it fails under Leon.


       The affidavit informs that the confidential source corroborated his relationship with

Mendizabal; the source made an appointment to meet with Mendizabal at his home and confirmed

that Mendizabal resided there; Mendizabal discussed his cocaine business at his home; and in Agent

Long’s experience, drug traffickers keep records of their transactions in their homes. This

information is not “so vague as to be conclusory or meaningless.” United States v. Frazier, 423 F.3d

526, 536 (6th Cir. 2005) (quoting Carpenter, 360 F.3d at 596). And though Attachment B does list

items often described in other search warrants, it also lists examples of documentary evidence and

paraphernalia that one would expect to find at a trafficker’s residence. Thus, the officers were

objectively reasonable in relying on the warrant.


The Knock-and-Announce Rule


       Mendizabal argues that the district court should have suppressed evidence seized from his

home because DEA officers violated the knock-and-announce rule. But the Supreme Court’s

decision in Hudson v. Michigan, 126 S. Ct. 2159 (2006), forecloses this challenge.


       In Hudson, officers forcibly entered the defendant’s home only three to five seconds after

knocking and announcing their presence. Id. at 2162. The prosecution conceded a knock-and-


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United States v. Mendizabal


announce violation, id. at 2163, but the Supreme Court held that the exclusionary rule did not apply

because the officers inevitably would have discovered the evidence upon execution of the valid

search warrant. Id. at 2165. In this case, the officers also had a valid search warrant, so even if there

were a knock-and-announce violation, the evidence discovered in Mendizabal’s house need not be

suppressed.


Sufficiency of Proof on the § 924(c) Charge


        Mendizabal argues that insufficient evidence supported his conviction under 18 U.S.C.

§ 924(c), and thus that the district court erred by denying his motion to acquit. Reviewing the district

court’s decision de novo, United States v. Hartsel, 199 F.3d 812, 815 (6th Cir. 1999), we cannot

agree with Mendizabal’s argument that no rational trier of fact could have found him guilty beyond

a reasonable doubt. See, e.g., United States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002).


        Mendizabal claims a dearth of evidence showed that his (undisputed) possession of a firearm

was “in furtherance of” his underlying drug trafficking offense. In evaluating similar sufficiency

challenges, courts have asked whether the gun was found in close proximity to the defendant because

if the defendant can use the gun to protect himself or his drugs, then the gun “furthers” the

defendant’s drug trafficking offense. See, e.g., United States v. Swafford, 385 F.3d 1026 (6th Cir.

2004); United States v. Mackey, 265 F.3d 457 (6th Cir. 2001) (inquiring whether the gun was

“strategically located” within the defendant’s reach); United States v. Iiland, 254 F.3d 1264 (10th

Cir. 2001). Conversely, when the gun is “found far from the locus of drug activities,” where it is

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United States v. Mendizabal


“not readily accessible . . . when [the defendant] would have been involved in drug conspiracy

activities for which possession of a gun would be useful,” possession of the gun might not be “in

furtherance of” a drug trafficking offense. See United States v. Rios, 449 F.3d 1009, 1016 (9th Cir.

2006). In this case, Mendizabal’s gun was found in a safe along with the conspiracy-linked cocaine,

where it would have been very useful in protecting that cocaine. Further, the gun was loaded, which

is one consideration indicating it was readily available for use. See Mackey, 265 F.3d at 462.

Drawing all inferences in support of the verdict, we conclude that a rational trier of fact could have

found that Mendizabal possessed this gun in furtherance of the cocaine conspiracy. See Hartsel, 199

F.3d at 815.


Breach of the Proffer Agreement


       Mendizabal argues that the district court erred by not holding a Kastigar evidentiary hearing

about the possible use of immunized testimony against him. But because Mendizabal had only

“pocket immunity,” a Kastigar hearing was not required, and we review only to determine whether

the government materially breached the proffer agreement. We conclude it did not.


       Whether the defendant is entitled to a Kastigar hearing depends on the which of two types

of immunity the government granted. The first type, “statutory immunity,” stems from the rights

granted by the federal witness immunity statute, 18 U.S.C. § 6002. A grant of statutory immunity

“assures a witness that his immunized testimony will be inadmissible in any future criminal

proceeding, as will be any evidence obtained by prosecutors directly or indirectly as a result of the

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United States v. Mendizabal


immunized testimony.” United States v. Turner, 936 F.2d 221, 223–24 (6th Cir. 1991). So called

“pocket immunity” (also called “informal immunity”),on the other hand, hinges on the prosecutor’s

informal assurance of immunity; this approach bypasses the formalities required to grant statutory

immunity. Id. at 223; see also Bank of Nova Scotia v. United States, 487 U.S. 250, 258 (1998).


       When federal authorities later prosecute a defendant who has been granted statutory

immunity, he can request a “Kastigar hearing” to require prosecutors to prove that they are not using

his immunized testimony against him. See Kastigar v. United States, 406 U.S. 441 (1972); United

States v. Ford, 176 F.3d 376, 381 (6th Cir. 1999). A defendant granted only pocket immunity,

however, lacks grounds for insisting on a Kastigar hearing, and normal contract law and remedies

govern any alleged breach by prosecutors. See United States v. Fitch, 964 F.2d 571, 574 (6th Cir.

1992); Turner, 936 F.2d at 224.


       The language of Mendizabal’s proffer letter negates any doubt about the type of immunity

the government granted:


       [T]he government may make derivative use and may pursue any investigative leads
       suggested by any statements or other information provided by your client. This
       provision is necessary in order to eliminate the necessity for a Kastigar hearing at
       which the government would have to prove that the evidence it would introduce at
       trial is not tainted by any statements or other information provided by your client
       during the proffer or discussion.


On its face, the agreement allows the government to make derivative use of Mendizabal’s testimony.

This is classic “pocket immunity,” so Mendizabal can only seek contractual remedies. But any

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United States v. Mendizabal


contractual argument must fail because the government did not materially breach the proffer

agreement.


       Mendizabal cannot successfully argue that the government breached the proffer agreement

when it raised the amount of cocaine charged from 500 grams to five kilograms. The government

contends that it increased the amount based on Mendizabal’s post-arrest/pre-proffer statements and

on the testimony of co-defendants Curry and Boyd. Mendizabal points out that Agent Long’s report

of his post-arrest statement was actually prepared post-proffer. He insists that this demonstrates that

“the government has confused facts which he presented in the [proffer] meeting as having been

presented at the [post-arrest] meeting.” We find this assertion unconvincing and note also that the

testimony of Curry and Boyd in itself supports the government’s increase in the amount of cocaine

charged. We therefore discern no error in the district court’s conclusion that the government did not

materially breach the proffer agreement as it relates to the drug charge.


       Similarly, Mendizabal cannot successfully argue that the government materially breached the

proffer agreement by using his immunized testimony to charge him with possession of a firearm in

furtherance of a drug offense. The district court reviewed the grand jury testimony and found one

question and answer that may have been based on information contained in Mendizabal’s proffer:


       [AUSA Marsh:] Did he [Jovan Mendizabal] admit that was his gun?
       [Witness:] Yes




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United States v. Mendizabal


Two other factual points could suggest a breach: (1) Agent Long’s report of the post-arrest interview

does not mention the gun, and (2) the district court agreed that it was unlikely that the information

came from Curry or Boyd.


       Assuming this information did come to the government’s attention from the proffer, any

resulting breach was not a material breach. See Fitch, 964 F.2d at 574 (holding that unless the

breach of an informal immunity agreement is “material and substantial,” the aggrieved party cannot

invoke contract-based remedies). The grand jury most likely decided that there was probable cause

to indict Mendizabal on the § 924(c) charge because authorities found the gun next to cocaine in his

safe—not because he admitted to Agent Long that it was his gun. Therefore, we discern no error in

the district court’s conclusion that the government did not materially breach the proffer agreement

when it charged Mendizabal with a violation of 18 U.S.C. § 924(c) in the Superseding Indictment.


                                                 IV


       For the reasons stated above, we affirm Mendizabal’s conviction.




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