United States v. Jose O. Martinez ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3121
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United States of America, *
*
Plaintiff-Appellee, *
*
v. *
* Appeal from the United States
Jose O. Martinez, also known as * District Court for the District of
Daniel Alejo, also known as Pedro C. * Nebraska.
Alejo *
*
Defendant-Appellant. *
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Submitted: December 18, 1998
Filed: January 22, 1999
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Before MURPHY, JOHN R. GIBSON, and MAGILL, Circuit Judges.
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MURPHY, Circuit Judge.
After Pedro Alejo1 was stopped for moving violations, sixteen pounds of
methamphetamine were found in the car he was driving. He was charged with one
1
This appears to be appellant’s legal name as opposed to the other names
listed in the caption. Daniel Alejo was the name on the driver’s license appellant
produced, and the name Jose O. Martinez came up in a criminal history check
performed at the scene of the traffic stop.
count of possession with intent to distribute methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(A), convicted after a jury trial, and sentenced to
serve 168 months. On appeal Alejo argues that the district court2 erred in denying his
motion to suppress evidence, his Batson challenge, his motion for acquittal, and his
request for a minor role sentencing reduction. We affirm.
Alejo was stopped on an interstate highway in Nebraska on May 17, 1997, after
state trooper Gerald Schenck observed his vehicle follow another too closely and pass
unsafely. Schenck initiated the stop by turning on the overhead lights of his squad car,
causing a video camera within his car to begin recording; a wireless microphone was
also clipped on the trooper’s lapel. After Alejo pulled over, Schenck approached the
driver’s door and requested license and registration information. Schenck spoke to
Alejo in English. Alejo produced an Indiana driver’s license bearing the name Daniel
Alejo and an incomplete bill of sale for the car which showed Daniel Alejo as the
buyer. Alejo explained that he had originated his trip by flying from Indiana to
California where he had purchased the car for $2000 and that he was on his way back
to Indiana. Trooper Schenck indicated that he planned to issue Alejo two warning
citations and returned to his vehicle to complete them. He also ran a criminal history
check on Daniel Alejo, the named person on the driver’s license presented to him. The
information he received indicated that Daniel Alejo had a prior conviction for
transporting illegal aliens and that he had also used the name Jose O. Martinez.
The trooper went back to appellant’s car, returned the license, and asked more
questions about the vehicle purchase. Alejo responded that he had purchased the car
from a friend. Schenck found this inconsistent with Alejo’s previous comments and
proceeded to ask several more questions about the seller of the vehicle. Alejo finally
said he didn’t know the name of the person who sold him the car.
2
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
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Schenck then asked Alejo for permission to search the car. Alejo said “OK.”
Schenck asked if Alejo could read either Spanish or English, and Alejo responded that
he could only read Spanish. Schenck then returned to his vehicle for a consent form
written in Spanish. Schenck told Alejo to make sure he understood the form, but he
did not advise him that he could refuse to sign it and did not read it out loud to him.
Alejo signed the consent form without further conversation.
Schenck asked Alejo to step out of the vehicle, and he began to inspect it. After
a brief search of the interior, he went back to his squad car to get Nero, the service dog
riding with him. The dog alerted near the trunk of Alejo’s car. When Schenck opened
the trunk, he noticed it was very clean except for a few metal shavings under the
carpet. He went on to discover a metal plate and wires running behind the back seat,
and two nylon gym bags tucked into a compartment built between the trunk wall and
the back seat. The bags contained what was later determined to be approximately
sixteen pounds of methamphetamine. Alejo was taken into custody and interviewed
in English. He admitted that his real name was Pedro Alejo, that Daniel Alejo was his
brother, and that he had used a driver’s license in his brother’s name because his own
had been suspended.
I.
Alejo appeals his conviction and his sentence, and seeks a new trial or
resentencing. He claims the search violated the Fourth Amendment and that it was
clear error for the court to find he had consented to it, that his constitutional rights
were also violated when the prosecutor struck the only person of color from the jury
venire panel, that there was not sufficient evidence to support a finding that he
knowingly possessed the methamphetamine, and that he should have received a minor
role reduction under U.S. Sentencing Guidelines Manual § 3B1.2 [U.S.S.G.].
A.
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The district court adopted the finding of the magistrate judge3 that Alejo had
voluntarily consented to the search. Alejo asserts the court erred in denying his motion
to suppress the evidence seized from his car. He argues it was error for the court to
find he consented to the search because he did not understand English or read Spanish
well enough to give his voluntary and intelligent consent. The magistrate found that
Alejo was able to read the consent form, albeit slowly, and had lived and worked in
Indiana for twenty years. He found that Alejo understood English enough to converse
with the trooper and to give his knowing consent. Although Schenck was “less than
accommodating,” the magistrate found that Alejo had not been coerced or his will
overborne. A decision not to suppress evidence will be upheld unless it rests upon
clearly erroneous findings of fact or reflects an erroneous view of the applicable law.
United States v. Berry, 113 F.3d 212, 122 (8th Cir. 1997).
A consensual search does not violate the Fourth Amendment if the consent was
voluntarily given without coercion, United States v. Cortez, 935 F.2d 135, 142 (8th
Cir. 1991). A traffic violation alone will not justify an automobile search; there must
be probable cause or consent. Knowles v. Iowa, 119 S. Ct. 484 (1998). In order to
determine if consent is voluntary a court should look at all the circumstances, including
the nature of the interchange, the characteristics of the individual stopped, and the
coerciveness of the environment. United States v. Chaidez, 906 F.2d 377, 380-81 (8th
Cir. 1990). Voluntary consent need not amount to a waiver; consent can be voluntary
without being an “intentional relinquishment or abandonment of a known right or
privilege.” Id. An officer is not required to warn a driver that he does not have to sign
a consent form. United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994).
A careful review of the videotape of the stop in this case shows that the findings
below were not clearly erroneous. Alejo verbally agreed to let Schenck search his car,
3
The Honorable David L. Piester, United States Magistrate Judge
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and he signed a Spanish language consent form after indicating that he could read
Spanish. Schenck spoke to Alejo in a normal tone of voice and did not display a
weapon or remove Alejo from his car. Alejo did not appear intoxicated or lacking in
intelligence. It is also relevant that Alejo had some prior experience with the legal
system involving the suspension of his driving privileges.
Alejo argues that the trooper did not have reasonable suspicion to continue to
detain him after completing the citations and returning his license. Alejo’s
nervousness and apparent inconsistent answers to Schenck’s questions, certain details
appearing on the bill of sale Alejo had presented, and the information obtained from
the license check gave rise to reasonable suspicion sufficient to permit further
questioning. See United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994); see also
United States v. McManus, 70 F.3d 990, 993 (8th Cir. 1995). The request to search
was not itself a violation of the Fourth Amendment. See United States v. White, 81
F.3d 775, 778-79 (8th Cir. 1996). The district court did not err in denying the motion
to suppress evidence.
B.
Alejo contends that his constitutional rights were also violated by the
government’s use of a peremptory strike to remove the only person of color from the
jury panel. See Batson v. Kentucky, 476 U.S. 79, 89 (1986). Alejo argues that the
reasons offered by the prosecutor for the strike were pretextual and that the prosecutor
knew that the juror was a Native American at the time he made the strike.4
Batson challenges are analyzed in three steps. A party opposed to the
government’s use of a peremptory strike must make out a prima facie case of
4
The parties disagree about when the prosecutor learned that the juror was a
Native American, but for purposes of our analysis we adopt Alejo’s position.
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discrimination. Then the burden shifts to the government to produce a race-neutral
explanation. Purkett v. Elem, 514 U.S. 765, 767 (1995). If a race-neutral explanation
is tendered, the court must then determine whether purposeful racial discrimination has
been proven. This may include analyzing whether the reasons offered are pretextual.
Id. The court’s ultimate finding of whether there was discrimination is reviewed for
clear error. United States v. Carr, 67 F.3d 171, 175 (8th Cir. 1995).
When Alejo raised his Batson challenge, the court asked the government to
explain the basis of its challenge. The court accepted as race-neutral the prosecutor’s
explanation that the juror had been struck because of her marital status and age and
because her body position and eye contact during voir dire suggested an attitude
unfavorable to the government. The court concluded that the government’s actions
were not discriminatory, and there was no evidence that similarly situated white jurors
were not stricken. The district court was “in the best position to evaluate the
truthfulness of [the] asserted explanation,” United States v. Jenkins, 52 F.3d 743, 746
(8th Cir. 1995), and Alejo has not shown the court erred in rejecting his challenge.
C.
Alejo also objects to the denial of his motion for judgment of acquittal, because
of insufficient evidence that he knowingly possessed the methamphetamine. The
government responds that it produced sufficient evidence to support the finding that
Alejo was aware of the drugs in the car. A denial of a motion for judgment of acquittal
should be reversed “only where the evidence, viewed in the light most favorable to the
government, is such that a reasonably minded jury must have a reasonable doubt as to
the existence of the essential elements of the crime charged.” United States v. Mundt,
846 F.2d 1157, 1158 (8th Cir. 1988). “While reasonable inferences from the evidence
weigh against the defendant, speculation does not.” United States v. Pace, 922 F.2d
451, 453 (8th Cir. 1990).
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The element of knowing possession is normally established through
circumstantial evidence because of the difficulty in obtaining direct evidence of an
individual’s knowledge. See United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir.
1994). Here there was evidence of Alejo’s ownership, dominion, and control over the
vehicle in which the drugs were found. See United States v. Schubel, 912 F.2d 952,
955 (8th Cir. 1990). There was also testimony indicating that Alejo appeared nervous
and that there were metal shavings in the trunk and wires and burn marks behind the
back seat. The jury could have found that Alejo’s apparent nervousness and his
inconsistent answers were related to his knowledge that there were drugs in the
vehicle. The jury could also have found it unlikely that someone would fly from
Indiana to California to purchase a $2000 car. Although other inferences could have
been drawn from the evidence, we cannot say that no reasonable jury would have
found Alejo knew that the methamphetamine was in the vehicle. The district court did
not err in denying the motion for judgment of acquittal.
D.
Finally, Alejo asserts it was error for the court to deny him a sentencing
reduction under U.S.S.G. § 3B1.2. A defendant who establishes that he was a “minor
participant” in the offense can be granted a two-level reduction. Id. A district court’s
findings regarding the role played by a defendant in the offense are reviewed for clear
error. United States v. Snoody, 139 F.3d 1224, 1227 (8th Cir. 1998); United States v.
Chatman, 119 F.3d 1335, 1341 (8th Cir. 1997). A role as a courier or mule in a drug
distribution scheme does not necessarily entitle the individual to a § 3B1.2 reduction,
Snoody 138 F.3d at 1228. Transportation is a necessary part of illegal drug
distribution, and the facts of the case are critical in considering a reduction for minor
role. See United States v. McGrady, 97 F.3d 1042, 1043 (8th Cir. 1996). Given the
facts regarding Alejo’s demeanor and statements, the appearance of the inside of the
trunk, the manner in which the drugs were secreted in the car, and the large amount
found, it was not error to deny Alejo a minor role adjustment.
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III.
For the reasons discussed, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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