United States v. Gerardo Cruz-castro , 378 F. App'x 632 ( 2010 )

FILED
NOT FOR PUBLICATION APR 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10243
Plaintiff - Appellee, D.C. No. 3:08-CR-00017-LRH-
RAM-1
v.
GERARDO A. CRUZ-CASTRO, MEMORANDUM *
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-10244
Plaintiff - Appellee, D.C. No. 3:08-CR-00017-LRH-
RAM-2
v.
PEDRO A. VELASQUEZ,
Defendant - Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted April 12, 2010 **
San Francisco, California
Before: NOONAN and CALLAHAN, Circuit Judges, and MARTINEZ, District
Judge.***
While traveling eastbound on Interstate 80 in Nevada, Appellants Gerardo
Cruz-Castro and Pedro Velasquez were stopped for speeding by Trooper William
Murwin of the Nevada Highway Patrol. During the ensuing encounter, Murwin
obtained Cruz-Castro’s consent to search the vehicle and discovered 220 grams of
cocaine base and 123.5 grams of heroin, for which Appellants were later charged
with possession with intent to distribute. Appellants moved to suppress the
narcotics evidence, and the district court denied their motions after an evidentiary
hearing. Appellants subsequently were convicted by a jury and sentenced to the
mandatory minimum of 10 years of imprisonment. On appeal, they challenge the
denial of their suppression motions, the admission of certain trial testimony, and
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ricardo S. Martinez, United States District Judge for
the Western District of Washington, sitting by designation.
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the denial of safety-valve treatment at sentencing. We have jurisdiction pursuant
to 28 U.S.C. § 1291 and 18 U.S.C § 3742, and we affirm.
The Suppression Motions
Appellants raise several arguments contesting the denial of their motions to
suppress. First, Velasquez asserts that there was insufficient evidence to conclude
that the initial traffic stop was lawful. We review de novo whether the facts
adequately support a traffic stop, and we review the district court’s findings of fact
for clear error. United States v. Drake, 543 F.3d 1080, 1087 (9th Cir. 2008). Here,
Trooper Murwin testified that he observed Appellants’ vehicle and estimated its
speed to be approximately 80 miles per hour, which he confirmed using radar. He
also testified that the posted speed limit in the area was 70 miles per hour. No
objection was raised to this testimony. In light of this evidence, we agree with the
district court that the initial stop of the vehicle was lawful. See United States v.
Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006).
Appellants proceed to argue that the ensuing search of the vehicle rendered
the duration of the traffic stop unreasonable. We review de novo whether a stop
exceeds its proper duration, United States v. Mayo, 394 F.3d 1271, 1276 n.8 (9th
Cir. 2005), inquiring whether law enforcement “pursu[ed] the investigation in a
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diligent and reasonable manner,” Haynie v. County of Los Angeles, 339 F.3d 1071,
1076 (9th Cir. 2003) (internal quotation marks and citation omitted).
According to Murwin’s testimony, neither Cruz-Castro nor Velasquez
produced driver’s licenses when prompted, and Cruz-Castro did not have any
money or credit cards in his possession. Cruz-Castro could not explain with
reasonable precision where they were going or whom they were meeting, and he
appeared abnormally nervous—his pulse was visibly protruding from his neck and
his eyes were twitching. Murwin obtained Cruz-Castro’s consent to search the
vehicle, and while searching the trunk Murwin noticed a spilled white powder that
he suspected to be a controlled substance. Murwin proceeded to search the
passenger compartment, opened a backpack behind the passenger seat, and
discovered what appeared to be heroin and cocaine base. By this time, the total
duration of the stop was 16 minutes. In light of the suspicious circumstances that
continued to unfold during the encounter, we conclude that Murwin’s brief
extension of the traffic stop in order to dispel his suspicions was reasonable. See
Mayo, 394 F.3d at 1276 (concluding that “[t]he period of detention was
permissibly extended [to forty minutes] because new grounds for suspicion of
criminal activity continued to unfold”).
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Appellants further contend that Murwin unlawfully coerced Cruz-Castro’s
consent to search the vehicle. Whether consent is obtained through coercion
depends on the totality of the circumstances and is a question of fact we review for
clear error. United States v. Enslin, 327 F.3d 788, 792 (9th Cir. 2003). Five
factors are often the focus of this inquiry: (1) whether the suspect was in custody;
(2) whether officers had their guns drawn; (3) whether Miranda warnings were
given; (4) whether the suspect was notified that he or she could refuse consent; and
(5) whether the suspect was told that a search warrant could be obtained. United
States v. Patayan Soriano, 361 F.3d 494, 502 (9th Cir. 2004). When applied to the
facts of this case, the majority of these considerations weigh in favor of
voluntariness, and the additional circumstances noted by Cruz-Castro do not
persuasively suggest that his ability to refuse consent was overborne. The district
court did not clearly err in finding that Cruz-Castro’s consent was voluntary.
Finally, Appellants argue that the scope of Cruz-Castro’s consent was
limited to the trunk of the vehicle. We review for clear error whether a search fell
within the scope of consent. United States v. Rodriguez-Preciado, 399 F.3d 1118,
1131 (9th Cir. 2005). After learning that Cruz-Castro was the owner of the
vehicle, Murwin testified that he asked Cruz-Castro “if [he] could search the
vehicle” and that Cruz-Castro “sa[id] yes” and stated that Murwin “wouldn’t find
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anything.” A video of the encounter shows that Murwin searched the trunk of the
vehicle and then indicated to Cruz-Castro that he would proceed to search the
passenger compartment. Murwin testified that he looked in the backseat, saw a
backpack, and motioned to Velasquez that he wanted to look inside. At no point
did Appellants object, and the video indicates that they had ample opportunity to
do so. “Failure to object to the continuation of a vehicle search after giving general
consent to search is properly considered as an indication that the search was within
the scope of the initial consent.” United States v. Cannon, 29 F.3d 472, 477 (9th
Cir. 1994) (internal quotation marks and citation omitted). The district court did
not clearly err in concluding that Cruz-Castro’s consent included the passenger
compartment and closed containers therein.1
Trial Testimony
Velasquez contests the district court’s decision to allow Murwin to testify
that Velasquez had stated, “I do this because I make more money here than I make
in the Honduras.” Velasquez also challenges the admission of expert testimony
from DEA Special Agent Michael Bakios, who opined regarding whether certain
1
To the extent that Velasquez argues that Cruz-Castro’s consent is “not
controlling” as to him, we deem this argument waived since it was raised for the
first time in his reply brief. United States ex rel. Meyer v. Horizon Health Corp.,
565 F.3d 1195, 1199 n.1 (9th Cir. 2009).
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characteristics of narcotics would indicate that they were intended for distribution.
We review these evidentiary decisions for an abuse of discretion. See United
States v. Higuera-Llamos, 574 F.3d 1206, 1209 (9th Cir. 2009); see also United
States v. Curtin, 588 F.3d 993, 995 (9th Cir. 2009).
As to Velasquez’s statement, the probative value of this evidence was
diminished by the language barrier between Velasquez and Murwin and the
ambiguity of the word “this.” These shortcomings, however, do not render the
evidence inadmissible. Cf., e.g., United States v. Warren, 25 F.3d 890, 895 (9th
Cir. 1994); United States v. Eubanks, 591 F.2d 513, 518 (9th Cir. 1979). In light of
the other evidence adduced at trial and the circumstances under which the
statement was made, the jury could permissibly infer from the statement that
Velasquez was engaging in some form of commerce, to wit, narcotics trafficking.
The district court did not abuse its discretion by finding the statement to be
probative of a fact at issue and not substantially outweighed by the risk of unfair
prejudice.
Regarding Bakios’s testimony, Velasquez asserts that the special agent’s
lack of personal knowledge about the specific narcotics recovered from the vehicle
rendered his testimony irrelevant and unhelpful to the trier of fact. These
arguments are not well-taken; based on his experience, Bakios testified that a
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person in possession of 220 grams of cocaine base and 123.5 grams of heroin
would likely intend to distribute the narcotics. He also explained the practice of
distributing heroin in 25-gram “pieces” in plastic bags. The jury could readily
apply Bakios’s testimony to determine whether the narcotics in this case were
intended for distribution rather than personal use. The presentation of this
testimony in the form of answers to hypothetical questions did not render it
irrelevant or unhelpful. See United States v. Younger, 398 F.3d 1179, 1190 (9th
Cir. 2005).
Safety-Valve Treatment at Sentencing
Both Cruz-Castro and Velasquez contend that the district court erred in
denying them safety-valve treatment. A defendant has the burden of proving by a
preponderance of the evidence that he or she qualifies for the safety valve, United
States v. Zakharov, 468 F.3d 1171, 1181 (9th Cir. 2006), and we review for clear
error the district court’s factual determination that a particular defendant is
ineligible, United States v. Mejia-Pimental, 477 F.3d 1100, 1103 (9th Cir. 2007).
The district court denied safety-valve treatment to Cruz-Castro because he
did not demonstrate that he fully debriefed to the government. See 18 U.S.C. §
3553(f)(5). To make this determination, the district court relied on the testimony
of DEA Special Agent Karen Rossi, who had debriefed Cruz-Castro and concluded
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that he did not divulge his “total knowledge of the transaction.” The district court
also relied on certain evidence presented at trial. Although Bakios had testified
that drug couriers typically know “very, very little,” and Rossi conceded the
“possib[ility]” that Cruz-Castro had acted solely at the direction of Velasquez, this
evidence was far from compelling. The district court did not clearly err in finding
Cruz-Castro ineligible for safety-valve treatment. Furthermore, because Cruz-
Castro received the mandatory minimum sentence, his contentions regarding
minor-role and acceptance-of-responsibility adjustments are moot. See United
States v. VanDoren, 182 F.3d 1077, 1083 (9th Cir. 1999).
As to Velasquez, he acknowledges that safety-valve treatment is precluded
where a defendant has more than one criminal-history point, see 18 U.S.C. §
3553(f)(1), but contends that the district court “did not ‘charge’ [his] criminal
history points against” him. This argument misinterprets the record; although the
district court found Velasquez’s criminal-history category to overstate the severity
of his prior convictions, the court did not remove Velasquez’s criminal-history
points, nor would it have had authority to do so. See United States v.
Hernandez-Castro, 473 F.3d 1004, 1008 (9th Cir. 2007). The district court
properly denied safety-valve treatment to Velasquez.
AFFIRMED.
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