United States v. Mirabal ( 2017 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 29, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 16-2188
GABRIEL MIRABAL,
Defendant-Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:13-CR-01152-WJ-1)
_________________________________
Gabriel Mirabal filed a brief pro se.
Mark T. Baker (Carter B. Harrison, with him on the briefs), Peifer, Hanson
& Mullins, P.A., Albuquerque, New Mexico, for Defendant-Appellant.
Nicholas J. Ganjei, Assistant United States Attorney (James D. Tierney,
Acting United States Attorney, with him on the briefs), Albuquerque, New
Mexico, for Plaintiff-Appellee.
_________________________________
Before KELLY, HOLMES, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
This appeal is brought by Mr. Gabriel Mirabal. He is a convicted
felon, which prevented him from lawfully possessing a gun. 18 U.S.C.
§ 922(g)(1). But authorities thought that they had seen Mr. Mirabal put an
assault rifle in the trunk of a car. This sighting led authorities to arrange
for a local officer to stop Mr. Mirabal for a traffic violation and to search
the trunk. Carrying out these arrangements, Deputy Micah Barker saw Mr.
Mirabal speeding and initiated a traffic stop.
After telling Mr. Mirabal that he had been speeding, Deputy Barker
looked for an assault rifle. Though he didn’t find one, he did find a
kilogram of cocaine in the car’s interior. The discovery of cocaine in the
car became key evidence for one of the eventual charges against Mr.
Mirabal. In defending against these charges, Mr. Mirabal argued that the
search had violated the Fourth Amendment. This argument did not
convince the district court, and the case went to trial.
At the trial, the Government presented testimony by the owner of the
car, Mr. Dominic Anaya, who had pleaded guilty to his own drug crimes.
Mr. Anaya testified that he and Mr. Mirabal had worked together to sell
cocaine. So Mr. Mirabal set out to impeach Mr. Anaya. To do so, Mr.
Mirabal tried to question Mr. Anaya about how much he expected his
sentence to drop as a result of his plea agreement. Mr. Mirabal was
allowed to probe the plea agreement in general terms, but not in detail.
On appeal, Mr. Mirabal raises two primary arguments and three
supplemental arguments.
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First, Mr. Mirabal challenges the introduction of evidence involving
the cocaine found in the car. Deputy Barker had probable cause to believe
that there was an assault rifle in the trunk, so he looked there. But Deputy
Barker claims that he could not see the back of the trunk because of a long
speaker box blocking his view. To see the trunk better, he entered the back
seat and pulled an armrest down. It was then that Deputy Barker found the
cocaine.
Mr. Mirabal alleges that Deputy Barker violated the Fourth
Amendment by going into the interior of the car and pulling the armrest
down. We disagree, concluding that the officer complied with the Fourth
Amendment by acting reasonably in trying to find a way to see into the
back of the trunk.
Second, Mr. Mirabal challenges the restrictions placed on his cross-
examination of Mr. Anaya. For the sake of argument, we may assume that
the restrictions violated the Confrontation Clause. Even if they did,
however, any possible violation would have been harmless in light of the
strength of the prosecution’s case and Mr. Mirabal’s opportunity to
thoroughly undermine Mr. Anaya’s credibility in cross-examination.
Finally, Mr. Mirabal alleges insufficiency of the evidence,
destruction of evidence, and withholding of evidence in violation of Brady
v. Maryland, 373 U.S. 83 (1963). We reject these challenges, concluding
that the trial evidence was sufficient to convict, the evidence was not
3
destroyed in bad faith, and Mr. Mirabal did not identify the evidence
allegedly withheld in violation of Brady.
In light of these conclusions, we affirm the conviction.
I. Motion to Suppress
We begin with Mr. Mirabal’s argument for suppression of evidence
involving the cocaine found in the car.
A. Standard of Review
On this issue, we review the district court’s “factual findings for
clear error and view the evidence in the light most favorable to the
government.” United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir.
2009). A factual finding is clearly erroneous if it lacks evidentiary support
or if a review of the evidence leaves us “‘with the definite and firm
conviction that a mistake has been made.’” United States v. Haymond, 869
F.3d 1153, 1157 (10th Cir. 2017) (quoting United States v. Hernandez, 847
F.3d 1257, 1263 (10th Cir. 2017)). The ultimate reasonableness of the
search, however, is reviewed de novo. DeJear, 552 F.3d at 1200.
B. The Ruling in District Court
Mr. Mirabal moved to suppress evidence of the cocaine, arguing that
Deputy Barker’s search had exceeded the scope permitted by the Fourth
Amendment. The district court credited Deputy Barker’s testimony and
ruled that the search had complied with the Fourth Amendment. Mr.
Mirabal challenges this ruling.
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C. Reasonableness of the Search
In challenging the ruling, Mr. Mirabal does not question the
existence of probable cause regarding the presence of an assault rifle in the
trunk. He instead asserts that Deputy Barker acted unreasonably by
entering the back seat and pulling the armrest down. 1 We disagree.
Law-enforcement officers may search a car without a warrant upon
probable cause to believe that contraband is present. United States v.
Chavez, 534 F.3d 1338, 1345 (10th Cir. 2008). But a search is permitted
only in the parts of the car where the officers could reasonably expect to
find the contraband. See United States v. Ross, 456 U.S. 798, 824 (1982)
(“The scope of a warrantless search of an automobile . . . is defined by the
object of the search and the places in which there is probable cause to
believe that it may be found.”). For example, “[p]robable cause to believe
that a container placed in the trunk of a taxi contains contraband or
evidence does not justify a search of the entire cab.” Id.The officers are limited not only in the place to search but also in the
manner of searching, which must be “reasonable under the circumstances.”
United States v. Mendoza, 817 F.3d 695, 702 (10th Cir. 2016). Thus, an
1
Mr. Mirabal also asserts that Deputy Barker violated the Fourth
Amendment by searching the front-seat area. But the cocaine was not
located there; as a result, the constitutionality of Deputy Barker’s search of
the front-seat area does not affect the admissibility of evidence involving
the cocaine. See Wong Sun v. United States, 371 U.S. 471, 485 (1963)
(noting that the exclusionary rule operates to suppress evidence “obtained
either during or as a direct result” of a Fourth Amendment violation).
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officer can decide how to carry out a search as long as the officer’s
decision is reasonable. Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir.
1997). For example, the officer may deem it necessary to perform “separate
acts of entry or opening” in order to conduct the search. Ross, 456 U.S. at
820-21.
Mr. Mirabal presents five arguments for why Deputy Barker should
not have entered the back seat and pulled down the armrest:
1. The back of the trunk, behind the speaker box, was too small to
fit an assault rifle.
2. The package was not immediately recognizable as contraband,
preventing seizure under the plain-view doctrine.
3. Deputy Barker could discover whatever lay in the back of the
trunk by leaning over the speaker box and searching with his
hands.
4. The compartment behind the armrest (where the cocaine was
found) was too small to contain an assault rifle.
5. Deputy Barker did not know whether the car had a trunk-access
panel.
We reject Mr. Mirabal’s first argument. Deputy Barker testified
based on his military experience and familiarity with assault rifles. In light
of this experience, he testified that a rifle could have fit behind the speaker
box. See Ornelas v. United States, 517 U.S. 690, 699 (1996) (recognizing
that police officers can draw inferences from prior experience). The
district court had little reason to question Deputy Barker’s explanation for
why he had tried to view the back of the trunk.
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Mr. Mirabal criticizes Deputy Barker’s explanation, contending that
the assault rifle was too big to fit in the part of the trunk hidden from
view. For this contention, Mr. Mirabal relies on a 1969 manual describing
the length of assault rifles. But Mr. Mirabal failed to present the district
court with evidence of this manual. Without such evidence, the district
court could reasonably rely on Deputy Barker’s explanation for why he had
tried to see into the back of the trunk.
We also reject Mr. Mirabal’s second argument (that the package was
not recognizable as contraband). Mr. Mirabal did not present this argument
in district court, and he has not urged plain-error review. Therefore, we
decline to consider this argument. See United States v. Lamirand, 669 F.3d
1091, 1099 n.7 (10th Cir. 2012).
Mr. Mirabal’s third argument is that Deputy Barker could have
looked into the trunk without pulling the armrest down. The only evidence
on this issue came from Deputy Barker. He testified that
 he could see only the front part of the trunk because a speaker
box ran nearly the entire width of the trunk,
 he could not see the space behind the speaker box,
 the space behind the speaker box was big enough to contain a
rifle,
 the speaker box would not move, which prevented Deputy
Barker from searching the back of the trunk, and
 he entered the back seat to see if he could gain access to the
trunk by folding the seats down.
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The district court credited Deputy Barker’s testimony, and Mr.
Mirabal does not point to any evidence of an ability to see into the back of
the trunk without entering the back seat. We therefore reject Mr. Mirabal’s
third argument.
Mr. Mirabal’s fourth argument is that the area behind the armrest was
too small to fit an assault rifle. This argument ignores Deputy Barker’s
reason for looking behind the armrest. He folded the armrest down to gain
access to the trunk, not to find another hiding space within the car. And
when Deputy Barker pulled the armrest down, he saw a void that appeared
to expose the trunk. Moments later, he saw the package containing the
cocaine.
The district court again found Deputy Barker’s testimony credible.
The photographs presented to the court show only an opaque black space
behind the armrest; these photographs do not clearly support either side.
With these inconclusive photographs, the district court had little else with
which to appraise Deputy Barker’s account. In these circumstances, the
district court’s finding was not clearly erroneous.
Finally, Mr. Mirabal contends that pulling the armrest down was
unreasonable because Deputy Barker did not know whether the car had a
trunk-access panel in the back seat. But Deputy Barker knew that many
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cars had such panels and that going through the back seat was the only
practical way to search the rest of the trunk.
In our view, Deputy Barker’s effort to see into the back of the trunk
was reasonable. 2
II. Confrontation Clause
Mr. Mirabal also claims a violation of the Confrontation Clause
based on his inability to fully cross-examine Mr. Anaya. Mr. Anaya was a
co-conspirator testifying for the Government, and Mr. Mirabal was allowed
to question Mr. Anaya on how he expected to benefit from his cooperation.
But Mr. Mirabal wanted to go further, cross-examining Mr. Anaya about
how much he expected his sentence to drop because of his cooperation with
the Government. This line of questioning was disallowed, and we may
assume for the sake of argument that the restriction violated the
Confrontation Clause. With this assumption, we would regard the violation
as harmless.
A. The Cross-Examination
The district court permitted Mr. Mirabal to cross-examine Mr. Anaya
about his
 plea agreement with the Government and
2
The Government also argues that Deputy Barker had probable cause
to search for ammunition and narcotics, justifying a search of all
compartments within the car. We need not address this argument because
the search would have been reasonable even if probable cause had been
confined to an assault rifle in the trunk.
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 expectation of a lighter sentence because of his cooperation.
But the court did not permit Mr. Mirabal to use the plea agreement itself or
to ask Mr. Anaya about how much he expected his sentence to drop. The
court reasoned that this questioning would entail conjecture and could
cause the jury to speculate about Mr. Mirabal’s own sentence.
B. The Harmlessness Inquiry
The Government argues that any constitutional violation would have
been harmless. On harmlessness, the Government bears the burden to show
“beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error.” Neder v. United States, 527 U.S. 1, 18
(1999).
To determine whether the Government satisfied this burden, we
consider “the importance of [Mr. Anaya’s] testimony in the prosecution’s
case, whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of [Mr. Anaya] on
material points, the extent of cross-examination otherwise permitted, and,
of course, the overall strength of the prosecution's case.” Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986).
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1. Importance, Cumulativeness, and Corroboration
Three of the factors (importance, cumulativeness, and corroboration)
are interrelated here. Considered together, these factors do not weigh
heavily in either direction.
Mr. Anaya was used mainly to interpret approximately twenty
wiretapped telephone calls, testifying that various code words referred to
the sale of crack and powder cocaine, that he and Mr. Mirabal had supplied
other conspirators with crack and powder cocaine, that Mr. Mirabal had
provided instruction on how to cook crack cocaine, that the two men would
sell ten ounces of crack cocaine (the statutory requirement) in only a
couple of days, and that Mr. Anaya would not have left $30,000 worth of
cocaine in the car that he allowed Mr. Mirabal to drive. This testimony
supported the Government’s theory that Mr. Anaya and Mr. Mirabal had
conspired to sell cocaine.
Mr. Mirabal did not deny a conspiracy. Instead, he argued that the
conspiracy was to sell marijuana wax rather than cocaine. Here too Mr.
Anaya rebutted Mr. Mirabal’s argument, testifying that the two men were
not in the business of selling marijuana wax.
Mr. Anaya’s testimony was extensive and important. But his
testimony was also corroborated by other witnesses. For example, every
telephone call discussed by Mr. Anaya was played for the jury and
interpreted the same way by law-enforcement witnesses. In interpreting the
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calls, the law-enforcement witnesses testified that Mr. Mirabal had
supplied various individuals with large quantities of crack cocaine,
negotiated prices and made arrangements to sell crack cocaine, and
aggressively collected debts. Other corroborating evidence involved two
undercover drug deals to buy crack cocaine from one of Mr. Mirabal’s
alleged distributors, observations of Mr. Mirabal meeting with alleged
buyers at the times arranged in the telephone calls, telephone calls in
which Mr. Mirabal told Mr. Anaya how to cook crack cocaine, and
telephone calls indicating Mr. Mirabal’s intent to sell the cocaine stashed
in the car. The abundance of corroboration weighs in favor of
harmlessness.
But the influence of Mr. Anaya remained substantial, for he had been
intimately involved in Mr. Mirabal’s criminal enterprise. And the law-
enforcement witnesses acknowledged that they had relied at least in part on
information from Mr. Anaya while he was cooperating with the
Government. Thus the factors of importance, cumulativeness, and
corroboration are not dispositive; the issue of harmlessness turns instead
on the strength of the prosecution’s case and the extent of cross-
examination.
2. Strength of the Prosecution’s Case
The overall strength of the prosecution’s case supports harmlessness.
The Government presented an enormous array of wiretapped calls that
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officers interpreted as proof that Mr. Mirabal was setting up drug deals,
negotiating sales, and instructing Mr. Anaya on how to cook crack cocaine.
This evidence was coupled with officers’ observations of Mr. Mirabal
meeting with buyers at the arranged times.
The Government also presented strong evidence that the conspiracy
had involved cocaine rather than marijuana wax. For example, searches of
Mr. Mirabal’s home and storage locker did not uncover the materials
needed to make marijuana wax, and Mr. Mirabal’s pricing matched the
price of cocaine. In addition, the terminology used in the telephone calls
made it unlikely that the coded references involved marijuana wax because
 Mr. Mirabal did not talk in code when referring to marijuana
and marijuana wax,
 the law-enforcement witnesses testified that the code words
matched crack and powder cocaine but not marijuana or
marijuana wax, and
 the references to “cooking” made sense for the production of
crack cocaine but not for the production of marijuana wax.
In our view, the strength of the prosecution’s case weighs in favor of
harmlessness.
3. Extent of Cross-Examination
But the most critical factor is the extent of cross-examination that
was allowed. Even with the restrictions, Mr. Mirabal was able to
extensively cross-examine Mr. Anaya on his reliability and motive. By the
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end, Mr. Anaya’s credibility was sullied as much as it would have been
with a fuller cross-examination.
For example, Mr. Mirabal questioned Mr. Anaya extensively on the
reliability of his testimony, including his history as an abuser and a
trafficker of drugs, his prior convictions for drug trafficking and armed
robbery, his prior inconsistent statements, his inability to know who was
driving his car after he went to prison, the discrepancies between Mr.
Anaya’s testimony and the testimony of other witnesses, and Mr. Anaya’s
prior effort to cooperate with the Government only to be told that his
information was unreliable.
Mr. Mirabal also questioned Mr. Anaya extensively on his motive to
aid the government. For example, Mr. Anaya admitted that he had entered
into a plea agreement and had understood that the Government could help
him obtain a sentence reduction in exchange for his cooperation, that his
sentence would have been substantial without his cooperation, that his
previous convictions could lead to a far longer sentence if the Government
sought an enhancement as a career offender, and that the Government had
chosen not to seek enhancement of Mr. Anaya’s sentence. Mr. Mirabal
drove the point home when Mr. Anaya admitted that he wanted to return
home as soon as he could so that he could see his young children grow up.
The extensive questioning allowed Mr. Mirabal to aggressively attack
Mr. Anaya’s credibility. For example, in closing argument, Mr. Mirabal
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pressed the jury to disregard Mr. Anaya’s testimony on the ground that his
plea deal had provided a motive to say whatever the Government wanted.
In addition, Mr. Mirabal effectively used the jury instructions to cast doubt
on Mr. Anaya’s believability. In these instructions, the district court stated
that the jury should weigh Mr. Anaya’s testimony with caution because of
his prior inconsistent statements, past convictions, status as a drug abuser,
and plea agreement. See United States v. Chavez, 481 F.3d 1274, 1278
(10th Cir. 2007) (noting that jury instructions can diminish the impact of
an error for purposes of harmlessness). In light of the extensive cross-
examination, closing argument, and jury instructions, the jury was amply
informed of Mr. Anaya’s unreliability and motive to testify against Mr.
Mirabal.
* * *
For harmlessness, we ask: If Mr. Mirabal had been permitted to
cross-examine Mr. Anaya on the specifics of Mr. Anaya’s sentencing
exposure, would we conclude beyond a reasonable doubt that the jury
would still have returned a guilty verdict? See Part II(B), above. Based on
the strength of the prosecution’s case and Mr. Mirabal’s extensive cross-
examination of Mr. Anaya, we answer “yes.” In our view, any violation of
the Confrontation Clause would have been harmless.
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III. Supplemental Appeal Points
Mr. Mirabal also filed a supplemental brief raising eight additional
appeal points. Five of these appeal points are either undeveloped or
included within the issues already discussed. 3 But three warrant separate
discussion:
1. sufficiency of the evidence,
2. destruction of evidence, and
3. withholding of exculpatory evidence.
We reject Mr. Mirabal’s contentions on these issues.
A. Sufficiency of the Evidence
Mr. Mirabal contends that the evidence was insufficient to convict.
We review this contention de novo, considering “‘the evidence and the
reasonable inferences to be drawn therefrom in the light most favorable to
the government.’” United States v. Toles, 297 F.3d 959, 968 (10th Cir.
2002) (quoting United States v. Malone, 222 F.3d 1286, 1290 (10th Cir.
3
In these appeal points, Mr. Mirabal contends that
 the Government used speculative interpretations of code words,
 the Government’s case agent did not believe that the car
contained drugs,
 no evidence existed to support Deputy Barker’s testimony
about speeding or recovery of a folding knife,
 Deputy Barker’s testimony was unreliable, and
 Mr. Anaya committed perjury.
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2000)). Considering the evidence in this light, we will reverse only if the
trier of fact could not rationally have found guilt beyond a reasonable
doubt. Id.The first count involved conspiracy to distribute at least ten ounces
of crack cocaine. As discussed above, the Government presented evidence
that Mr. Mirabal had arranged to manufacture and sell more than ten
ounces of crack cocaine. This evidence was sufficient for guilt on the first
count.
The second count entailed possession of 500 grams or more of
powder cocaine with intent to distribute. Here the Government presented
evidence that Mr. Mirabal
 had been caught with one kilogram of cocaine in a car that he
was driving and
 had been transporting the cocaine to sell it.
This combination of evidence was sufficient for guilt on the second count.
The third count involved possession of a firearm and ammunition.
Here the Government presented evidence that officers had found a firearm
and ammunition in Mr. Mirabal’s residence, where he lived alone. This
evidence sufficed for guilt on the third count.
The final count involved possession of body armor. Here the
Government showed that body armor had been found in Mr. Mirabal’s
storage locker. Again, this showing was sufficient for a finding of guilt.
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Viewing the evidence in the light most favorable to the Government,
a rational trier of fact could have found Mr. Mirabal guilty on each count.
B. Destruction of Evidence
Mr. Mirabal also challenges the destruction of drug evidence that had
allegedly been obtained from a distributor for Mr. Mirabal. Law-
enforcement officers recognized the substance as crack cocaine, and it
tested positive in a field test. But authorities later filed a notice
announcing the destruction of the drugs based on a governmental policy.
Mr. Mirabal did not present this argument in district court, and he
has not urged plain-error review. Thus, we could decline to address this
argument. See Part I(C), above.
But this argument would fail even under de novo review. To prevail,
Mr. Mirabal needed to show that the Government had acted in “bad faith”
by destroying potentially exculpatory evidence. United States v. Beckstead,
500 F.3d 1154, 1159 (10th Cir. 2007). “Generally, however, destroying the
evidence according to ‘an established procedure’. . . ‘precludes a finding
of bad faith absent other compelling evidence.’” Id. (quoting United States
v. Gomez, 191 F.3d 1214, 1219 (10th Cir. 1999)).
In our view, the authorities did not act in bad faith. They destroyed
the drugs based on an existing policy and filed a notice announcing the
destruction of the drugs. In these circumstances, we have no reason to find
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bad faith. Thus, we would reject Mr. Mirabal’s argument even if it had
been preserved.
C. Withholding of Exculpatory Evidence
Finally, Mr. Mirabal asserts that evidence was withheld in violation
of Brady v. Maryland, 373 U.S. 83 (1963). But he does not identify the
evidence allegedly withheld or say how this evidence would have been
pertinent. Instead, Mr. Mirabal asks us to overrule Brady’s requirement of
materiality. But we cannot overrule a Supreme Court opinion. See Burrell
v. Armijo, 456 F.3d 1159, 1171 n.9 (10th Cir. 2006) (“Needless to say, we
cannot overrule the Supreme Court.”).
IV. Conclusion
We reject Mr. Mirabal’s challenges to his conviction.
First, we reject his challenge under the Fourth Amendment because
Deputy Barker acted reasonably in pulling the armrest down in order to see
into the back part of the trunk.
Second, even if the Confrontation Clause had been violated, the
violation would have been harmless because the Government presented
compelling evidence of guilt and Mr. Mirabal was able to effectively
undermine Mr. Anaya’s credibility on cross-examination.
Third, the evidence was sufficient to convict Mr. Mirabal on each
count.
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Fourth, Mr. Mirabal did not preserve his appeal point involving the
destruction of evidence, and he presented no evidence of bad faith.
Finally, the Brady claim is invalid because Mr. Mirabal has not
identified any withheld evidence or explained why it is material.
Having rejected each appeal point, we affirm the conviction.
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