United States v. Mancillas, Noe

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-1001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NOE MANCILLAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 97 CR 64--Sarah Evans Barker, Chief Judge.
ARGUED October 1, 1998--DECIDED JULY 7, 1999
Before COFFEY, KANNE and DIANE P. WOOD, Circuit
Judges.
COFFEY, Circuit Judge. Noe Mancillas was
convicted before a jury of being a felon in
possession of a firearm, one count of possession
of marijuana with intent to distribute, and one
count of knowingly carrying a firearm during, and
in relation to, a drug trafficking offense. On
appeal, Mancillas challenges the district court’s
denials of written and oral motions to suppress,
the admission of expert testimony by a law
enforcement officer, the court’s jury
instructions, as well as the sentencing judge’s
refusal to grant a reduction for acceptance of
responsibility under USSG sec. 3E1.1 and the
court’s enhancement for obstruction of justice
pursuant to USSG sec. 3C1.1. We AFFIRM.
BACKGROUND
A. The December 17, 1996, Stop and Arrest of
Defendant-Appellant Noe Mancillas.
On December 17, 1996, at about 1:35 a.m.,
Indianapolis Police Department ("IPD") Officer
Douglas Cook was patrolling the south side of
Indianapolis in his marked police cruiser when he
received a radio dispatch reporting that the IPD
had just received an anonymous telephone tip from
an unidentified citizen who observed a Hispanic
male with a gun in his hand seated in a blue
Mercedes-Benz parked in the Hot’s Show Club ("the
Club"), located at 255 West Morris Street,
Indianapolis, Indiana. Officer Cook was within
one mile of the Club when he initially heard the
radio dispatch and immediately responded to the
call despite the fact that it was snowing heavily
at that time.
The Club’s parking lot was illuminated with two
large security lights, and upon entering the lot,
Cook immediately spotted the blue Mercedes. Cook
pulled his cruiser to within approximately
fifteen to twenty feet of the car, with his
vehicle facing the front of the Mercedes at an
angle. At this time, Cook activated the high-
intensity spotlight on his squad car. After the
officer illuminated the Defendant’s vehicle, a
Hispanic male (who later proved to be Appellant
Noe Mancillas) exited the front driver’s side
door, and two white males (Chuckie Will Hardman
and James Marshall) also exited the car.
Patrolman Cook testified that after the
individuals left the vehicle, each of them began
to walk in a different direction, and only
Hardman walked toward the entrance of the Club
even though it was the only business enterprise
open after 1:30 a.m.
Officer Cook exited his squad car, drew his
revolver, and directed the suspects to stop and
return to their car. The suspects complied, and
Cook, who stood near his driver’s door about ten
or twelve feet from the Mercedes, instructed the
three men to bend from the waist and individually
place their hands on the car’s hood. Cook
testified that at that time, "for officer safety,
being by myself [with] three gentlemen in front
of me with [a] suspected handgun involved, I was
going to wait for my backup." After each of the
suspects placed their hands on the car’s hood,
Cook walked toward them and observed what he
believed to be a "chrome handgun lying on top of
the dash[board] directly over the steering wheel
of the [Mercedes] vehicle." Cook stated that
despite the snowy and wintery conditions, he was
able to see the gun on the dashboard because an
area at the base of the windshield was clear,
possibly because the engine had been running and
the defroster had been operating.
Approximately one minute after Cook directed the
suspects to return to their car, backup IPD
Officer James Lopossa arrived, parked, and
assisted Cook in conducting a "patdown" of the
suspects to ensure that they were unarmed. He
did not find any weapons on the suspects. During
this period of time, Patrolman Cook remained near
his vehicle but continued to have his gun drawn
in order that he might "cover" his partner
Lopossa during the patdown safety search. At
trial, in response to questioning by Mancillas’
attorney, Cook testified that the suspects were
no longer free to leave at the time of the
patdown search and stated that the individuals
were "detained" but were not "in custody."
After Lopossa finished with the patdown weapon
search of the suspects, Cook re-holstered his
revolver and walked toward the Mercedes and the
suspects, and as he neared the vehicle he again
observed the gun in plain view on the dashboard.
Officer Cook asked the three subjects, "who’s got
the gun in the car?" The only response came from
Appellant Mancillas, who stated simply, "no."
Cook then asked, "is there a gun in the car?"
Mancillas again responded "no," while the others
remained silent. Cook asked the subjects another
time if there was a gun in the car, and again,
Mancillas replied "no." Finally, Cook informed
the men that he had received a radio report that
someone seated in a blue Mercedes parked at the
Club was holding a gun, and Cook faced Mancillas
directly and asked him, "[i]s there a gun in the
car?", at which time Mancillas, who had been
seated in the driver’s seat prior to exiting his
vehicle, admitted that there was a gun inside the
vehicle but when asked, failed to state who owned
the gun.
Cook attempted to open the driver’s door, found
it locked and asked Mancillas whether he had the
keys and Mancillas gave them to him. Cook
unlocked and opened the driver’s door, pointed
out that there was a gun on the dashboard above
the steering wheel, and asked Mancillas "what
[is] this?" According to Cook, Mancillas
responded, "[t]hat’s my gun." An inspection
revealed that the handgun was a loaded Taurus .40
caliber weapon containing eleven rounds of
ammunition in the magazine and one live round in
the chamber.
Officer Lopossa next opened the passenger’s
front door and discovered a second gun lying on
the console between the bucket seats. The second
gun was a loaded Raven Arms .25 caliber semi-
automatic weapon with four rounds in the magazine
and one live round in the chamber. Lopossa
unloaded the second handgun. Cook also had an
opportunity to observe drug paraphernalia lying
on the console in plain view consisting of
several glass crack pipes, a mini butane torch,
a set of portable digital scales, a pager, and a
white rock that Cook recognized (due to his
training) as crack cocaine wrapped inside a clear
baggie. Cook testified that based upon his
training and experience, he was aware that butane
torches were often used to light crack pipes, and
that scales were used to measure the weight of
controlled substances. Cook further testified
that at this juncture, "everyone [was]
effectively under arrest" for possession of
controlled substances and drug paraphernalia.
Patrolman Cook walked to the front of the car
and asked each of the men whether any of them had
permits to possess the guns found in the Mercedes
and each of them replied "no." Cook then asked
if any of them were the owner of the Raven Arms
handgun that Lopossa had discovered, and each
suspect denied ownership. (Hardman later admitted
that the weapon was his.)
Prior to impounding the vehicle, Officer Cook
conducted an inventory search of the Mercedes and
explicitly listed in detail the drugs and drug
paraphernalia described previously as well as BIC
lighters and several small screens commonly used
to smoke cocaine. In performing the search, Cook
also opened the trunk of the Mercedes and
discovered a large, clear plastic sealable bag
containing what he believed to be "one-half
brick" of marijuana. Inside the bag, facing out,
was a piece of paper bearing the notation "420
G"; Cook later became aware that this notation
referred to the quantity of the marijuana
contained in the bag: 420 grams.
Shortly thereafter, a police conveyance vehicle
arrived and transported the suspects to police
headquarters. The officers conducted a more
thorough search of the arrestees before placing
them in the police vehicle. Mancillas was found
to be carrying two pagers, a cellular phone, and
$2440 in cash. The search of Marshall resulted in
the discovery of a disposable syringe and three
rocks of crack cocaine. As a result of these
events, on May 28, 1997, a grand jury sitting in
the Southern District of Indiana returned a five-
count Indictment against Defendant Mancillas.
The Indictment charged as follows:
Count One: felon in possession of a firearm
(the Taurus .40 caliber pistol) (18 U.S.C. sec.
922(g)(1));
Count Two: possession of cocaine with intent to
distribute (21 U.S.C. sec. 841(a)(1));
Count Three: possession of marijuana with
intent to distribute (21 U.S.C. sec. 841(a)(1));
Count Four: knowingly carrying a firearm during
and in relation to a drug trafficking offense
(cocaine) (18 U.S.C. sec. 924(c)(1)); and
Count Five: knowingly carrying a firearm during
and in relation to a drug trafficking offense
(marijuana) (18 U.S.C. sec. 924(c)(1)).
On June 4, 1997, Mancillas made his initial
appearance, entered a plea of not guilty to each
of the five charges alleged in the Indictment,
and requested a jury trial.
B. Mancillas’ Written Motion to Suppress Physical
Evidence Obtained from the Interior and the Trunk
of the Mercedes.
On June 20, 1997, Mancillas filed a written
motion to suppress the physical evidence seized
at the time of his arrest (12/17/96) arguing that
the searches of the interior and the trunk of his
Mercedes violated his Fourth Amendment rights. On
September 12, 1997, the trial court conducted a
hearing on Mancillas’ motion to suppress and
Officer Cook testified (as described before) to
the events on the date of Mancillas’ arrest.
After the hearing, the district judge entered a
written order denying Mancillas’ motion to
suppress the physical evidence.
Initially, the judge ruled that Patrolman Cook
had reasonable suspicion to investigate Mancillas
and the other suspects. She noted that the radio
dispatch
stated that a Hispanic man in a blue (or dark)
Mercedes had a gun in the Hot[’]s Show Club
parking lot. This report was confirmed . . . when
the officer, arriving at the club, saw the
Defendant, a Hispanic man, and his passenger
inside a blue Mercedes parked in the parking lot.
The three men exited the car in a suspicious
manner immediately after the officer flashed his
spotlight on the front of the vehicle, walking
off in different directions. None of them spoke
to the officer. As he approached, the officer
called to them, directing them to return to their
car. As the officer approached Defendant and his
passengers, he spotted a handgun on the
dashboard, which confirmed the remainder of
details from the radio dispatch. When he asked
the three men about the gun, all denied
possession and ownership. The officer detained
Defendant and his passengers for further
questioning and continued to inquire about
ownership of the gun and whether anyone had a
permit for it. After four separate inquiries to
this effect, Defendant finally admitted generally
that there were firearms in the car, but still no
one claimed ownership at the time. To this point,
no specific violation of law had occurred,
although the officer had reasonable suspicion to
continue his questioning.
Based on the totality of the facts and
circumstances presented, the trial judge found
that Officer Cook had a reasonable suspicion to
believe that criminal activity may have been
occurring, or about to occur, and ruled that the
officer’s actions in stopping and detaining the
suspects were legal. See United States v.
Sokolow, 490 U.S. 1, 7-8 (1989); Terry v. Ohio,
392 U.S. 1, 29-30 (1968).
In addition, the district judge found that the
search and seizure of physical evidence fell
within the parameters of the Fourth Amendment for
two stated reasons. Initially, the trial judge
found that Patrolman Cook observed the gun in
plain view on the dashboard and drug
paraphernalia in the front seat area, and thus he
had probable cause to search the interior of the
automobile and other areas of the vehicle for
other contraband or evidence of a crime. See
California v. Acevedo, 500 U.S. 565, 569 (1991);
United States v. Patterson, 65 F.3d 68, 70 (7th
Cir. 1995). The trial court also determined
that Mancillas gave his car keys to Officer Cook
upon request and thus consented to the search of
his vehicle.
At trial, in the absence of the jury,
Mancillas’ counsel again raised the Fourth
Amendment issues originally debated in his motion
to suppress the physical evidence seized from his
vehicle, claiming that Mancillas’ original stop
and detention, as well as the search of his
vehicle, were unconstitutional. The district
judge at this time elaborated on her written
decision denying the motion, stating that Officer
Cook had reasonable suspicion to stop the
suspects because the details contained in the
radio dispatch were confirmed when he reached the
parking lot, and the suspects exited the car and
walked away in a suspicious fashion. These
factors, combined with the report of a gun and
the officer’s observation of the gun on the
dashboard, "planted in Cook a reasonable
suspicion that there was more to investigate
here." The judge continued, finding that:
Officer Cook’s [decision to] pull his firearm in
order to secure the compliance of the three
suspects . . . did not amount to a custodial
stop. It was a brief restriction of their
liberty. It was for a valid investigative
purpose. The officer had reasonable suspicion to
investigate, and he has testified that he did not
place any of the Defendants under arrest until
after he had established that there was no
firearm permit. . . . The conduct of Officer Cook
was neither coercive nor intimidating under those
circumstances. And, . . . the scope of the
detention did not exceed Terry standards so as to
become a custodial interrogation. And the
restriction of the [Defendant’s] liberty, was
brief both in terms of the time it required and
the extent of the intrusion.
C. Mancillas’ Oral Motion to Suppress Statements
he Made at the Time of his Detention and Arrest.
Also on September 12, 1997, during the
hearing on Mancillas’ motion to suppress,
Mancillas made an oral motion to suppress the
statements he had made at the time of his arrest,
including his admissions as to the ownership of
the Taurus handgun on the dashboard and that he
lacked a permit for the same. Mancillas alleged
that the statements were inadmissible on the
ground that the officers on the scene failed to
advise him either before or after his arrest of
his Miranda rights, and that this omission
violated his Fifth Amendment right against self-
incrimination. See Miranda v. Arizona, 384 U.S.
436 (1966).
The trial judge issued a written order denying
the Defendant’s motion to suppress his statements
concerning ownership of the Taurus gun and that
he lacked a permit for possession of the weapon.
Initially, the judge found that Mancillas waived
the Fifth Amendment argument because he had "not
previously asserted any Fifth Amendment claims
whereby he might have sought to suppress certain
statements [he] allegedly made to the police
officers at the time of or incident to his arrest
for which Miranda warnings had not been
provided." The judge concluded that "any such
Fifth Amendment claims [have] been waived by
Defendant’s failure to assert them in a timely
and complete fashion prior to the conclusion of
the evidentiary hearing." As an alternative to
the finding that Mancillas waived his Miranda
arguments, the court found that Mancillas’
statements admitting ownership of the gun and his
failure to obtain a permit were made prior to
Mancillas’ arrest and prior to any "custodial
interrogation."
At trial, during the government’s examination of
Officer Cook, the Assistant United States
Attorney ("AUSA") posed a series of inquiries to
Cook regarding the questions he had asked the
suspects while in the parking lot. Mancillas’
counsel objected on Fifth Amendment grounds to
Cook advising the jury of Mancillas’ response to
Cook’s inquiry "who’s got the gun" and the trial
judge overruled the objection. Mancillas’ counsel
asked to note a continuing objection on Fifth
Amendment grounds, and the court agreed to note
a continuing objection. In the absence of the
jury, the judge enumerated further reasons for
her decision to admit the testimony regarding the
Defendant’s statements. She reiterated that
Mancillas had "untimely advance[d]" his Fifth
Amendment argument and thus she deemed it
waived.
The judge alternatively ruled that even absent
waiver, she would have denied the motion to
suppress the Defendant’s statements because: (1)
the details of the dispatch were corroborated
when Cook arrived on the scene; (2) the suspects
exited the Mercedes in a suspicious fashion; (3)
Cook observed a firearm on the dashboard above
the steering wheel; (4) the detention of the
suspects lasted no longer than was necessary to
verify Cook’s suspicions and thus was limited in
its intrusiveness; and (5) Cook had returned his
revolver to its holster at the time Mancillas
made the challenged statements. According to the
court,
even though Officer Cook did pull his firearm in
order to secure the compliance of the three
suspects when he ordered them to return to their
vehicle and place their hands on the hood of the
vehicle[, this] did not amount to a custodial
stop. It was a brief restriction of their
liberty. It was for a valid investigative
purpose. The officer had reasonable suspicion to
investigate, and he has testified that he did not
place any of the Defendants under arrest until
after he had established that there was no
firearm permit. . . . The conduct of Officer Cook
was neither coercive nor intimidating under those
circumstances. And . . . the scope of the
detention did not exceed Terry standards so as to
become a custodial interrogation. And the
restriction on [Mancillas’] liberty . . . was
brief both in terms of the time it required and
the extent of the intrusion.
For all of these reasons, the court found that a
Miranda warning was not required and thus
Mancillas’ statements were admissible.
D. The Jury Trial, the Verdict Finding Mancillas
Guilty of Counts One, Three and Five as Charged
in the Indictment, and the Sentence Imposed by
the District Court.
Mancillas’ jury trial commenced on September 15,
1997, with Patrolmen Cook and Lopossa summarizing
the testimony they had given at the suppression
hearing, detailing the events and circumstances
leading to Mancillas’ arrest. Chuckie Hardman and
James Marshall, the men arrested with Mancillas
in the early morning hours of December 17, 1996,
also testified on behalf of the government, as
did Jack Kirk (an acquaintance of Mancillas), as
well as DEA Special Agent Thomas Casey.
Hardman testified that he met Mancillas for the
first time on December 16, 1996, the day before
Mancillas was arrested by Officer Cook. On the
evening of December 16, Hardman was at the Club
when Mancillas arrived, and while the two men
enjoyed a beer together, Hardman told Mancillas
that he was attempting to sell a Raven Arms .25
caliber handgun. The two men, along with James
Marshall, walked outside the Club and entered
Mancillas’ Mercedes. Hardman displayed the Raven
Arms handgun to Mancillas but, according to
Hardman’s testimony, Mancillas did not seem
particularly interested in buying it. While the
men were discussing whether there was potential
for a sale of the Raven Arms handgun, three
unknown individuals approached the passenger side
of the vehicle and at this time, Hardman
testified, Mancillas reached underneath his car
seat, grabbed the chrome Taurus handgun, and
placed it on his lap. According to Hardman, at
that time Mancillas rolled down the passenger
window, exposing the Taurus handgun to the three
men outside his vehicle, and asked if they "had
a problem." The men answered "no problem" and
walked away, and according to Hardman, Mancillas
then placed the Taurus handgun on the dashboard.
Two or three minutes later Officer Cook arrived.
Hardman further testified that while he was in
the vehicle, he never observed any drugs or drug
paraphernalia, nor did anyone attempt to sell him
any drugs, but he did recall seeing Marshall and
Mancillas exchange a plastic baggie while they
sat in the Mercedes, though he was not sure who
handed the baggie to whom. Hardman also
contradicted Officer Cook’s testimony that
Mancillas simply handed his car keys to the
officer when asked to do so. Hardman explained
that after Cook arrived and directed the men to
place their hands on their vehicle, Mancillas was
required to empty his pockets and lay the
contents on the car, at which time Officer Cook
acquired the keys to the Defendant’s car.
James Marshall’s recollection of events on the
night of the arrests was somewhat different.
Marshall testified that when he first observed
Mancillas, Hardman, and Hardman’s girlfriend,
they were sitting in Mancillas’ Mercedes, smoking
something. Everyone went inside the Club, but
later that evening Marshall, Hardman, and
Mancillas walked outside to the Mercedes.
Marshall stated that while the three of them were
sitting in the vehicle, Mancillas gave Marshall
an undisclosed amount of cocaine wrapped in a
baggie and told him to deliver it to a woman
inside the Club, and subsequently this cocaine
was found on Marshall at the time of his arrest.
Marshall also stated that earlier in December
1996, Mancillas had directed him to fly to
Brownsville, Texas, to pick up two suitcases of
marijuana (approximately forty-eight pounds), and
transport it to Indianapolis on a commercial
airline. Mancillas paid for Marshall’s plane
ticket, and after he returned, Mancillas ordered
him to transport one of the marijuana-filled
suitcases to an unidentified person’s home and to
deliver the other marijuana suitcase to
Mancillas’ garage. When Marshall arrived at
Mancillas’ home with the marijuana, Marshall
witnessed Mancillas and his cohort "Lefty"
repackage the drugs into ziplock bags presumably
for sale in smaller quantities. Marshall
testified that he believed a portion of the
marijuana ended up in the trunk of Mancillas’
car, and was discovered when the men were
arrested at the Club on December 17, 1996.
Finally, Marshall testified that following the
arrests, Mancillas made contact with him by
telephone and by letter while he was in prison.
In each of the communications, Mancillas
requested Marshall to give false testimony to the
IPD and to claim that he (Marshall) possessed the
Taurus .40 caliber handgun on the night of the
arrests.
Jack Kirk, an acquaintance of Mancillas, was
another trial witness. Kirk testified that he was
the owner of the Taurus handgun, and that
Mancillas had asked to borrow the gun on the
night of his arrest. Kirk further stated that
Mancillas told him he wanted to borrow the gun
because "[h]e was going to a neighborhood where
Hispanics [were not] especially liked[,]" and
Kirk admitted that he loaned the gun to
Mancillas. Kirk further testified that following
Mancillas’ arrest, Mancillas asked him to falsely
inform the IPD that Kirk had borrowed Mancillas’
Mercedes and that he (Kirk) had accidentally left
the Taurus handgun inside the vehicle.
The government’s final trial witness was Special
Agent Thomas J. Casey of the Drug Enforcement
Administration ("DEA"). On direct examination,
Casey began by recounting his career as a drug
enforcement officer and recited his
qualifications as an expert witness in the drug
trafficking business. He described the "tools of
the drug trade," and explained that plastic
baggies, scales, pagers, guns, and money are the
primary instruments of a drug enterprise.
Specifically, he stated that drug traffickers
often carry weapons for protection against other
individuals who may seek to separate the
trafficker from his stash, and also "for
protection against the police when [they] come in
to arrest you or serve a search warrant"-- in
other words, guns are used to resist officers
attempting to serve warrants or make an arrest.
Casey also testified about the definition of a
"source city" in the drug trade, and explained it
as a city where illegal drugs originate before
being transported to other American cities.
Following this general background testimony
regarding the drug trade, the AUSA asked Casey to
respond to a hypothetical question and he asked
Casey to presume that officers found in a vehicle
over 400 grams of marijuana and various drug-
related paraphernalia including scales, plastic
baggies, guns, two pagers, a cellular telephone,
and $2440 in currency. The AUSA then asked
"[k]nowing these factors, could you give us an
opinion as to whether that marijuana was being
held for distribution or for personal
consumption?" Mancillas’ counsel objected,
arguing that the anticipated questioning should
not be directed at the issue of Mancillas’ guilt
or innocence with respect to his intent to
distribute the illegal drugs. The judge overruled
Mancillas’ objection. Agent Casey proceeded to
testify that based on the facts presented by the
AUSA, "[m]y opinion is it’s for distribution." On
cross-examination, Casey further testified that
based on his experience, any amount of marijuana
exceeding one-quarter of a pound would be held
for distribution rather than personal
consumption.
On September 18, 1997, following the three-day
trial, the jury convicted Mancillas of three of
the five counts charged in the Indictment: Count
One (felon in possession of a firearm); Count
Three (possession of marijuana with intent to
distribute); and Count Five (knowingly carrying
a firearm while in possession of marijuana with
intent to distribute). The jury was unable to
reach a verdict on Counts Two and Four (cocaine
possession charges), and those counts were
dismissed by the court upon motion of the
government.
On December 17, 1997, Mancillas was sentenced
to a 180-month term of imprisonment and a three-
year term of supervised release, and ordered to
pay an assessment of $300. The trial judge made
clear that she believed Kirk’s testimony that
Mancillas asked Kirk to testify falsely and tell
the IPD that Kirk had borrowed Mancillas’
Mercedes and accidentally left the Taurus handgun
in the vehicle. The judge further found that
Mancillas’ attempts to persuade Kirk to fabricate
a story to avoid punishment for carrying the gun
constituted obstruction of justice, and gave
Mancillas a two-level enhancement on each of
Counts One and Three.
Mancillas asked the court to grant him a two-
level downward departure for acceptance of
responsibility, contending that because he had
admitted to Officer Cook that the Taurus handgun
belonged to him, and prior to trial had also
admitted to owning the 420 grams of marijuana
found in his trunk, he was entitled to the
reduction. The judge denied the Defendant’s
request, finding that Mancillas admitted
ownership of the marijuana in a proffer he made
to the government under a letter of immunity, and
because the admission was made in this protected
setting, it did not reduce the government’s
obligation to prove up each and every element of
the case against Mancillas at trial. Moreover,
the court also found that "these concessions . .
. were not enough . . . to constitute an
acceptance of responsibility."
After factoring in the enhancement for
obstruction of justice, Mancillas’ adjusted
offense level on Count Three was 28, and the
total offense level upon which the judge based
the sentence was 28. Mancillas’ criminal history
category was IV. Based on these factors, the
guidelines recommend a term of imprisonment
ranging from 110-137 months on Counts One and
Three, plus 60 months mandatory for Count Five
(knowingly carrying a firearm while in possession
of marijuana with intent to distribute), as well
as 2-3 years of supervised release. Based on
these factors, the judge sentenced Mancillas as
follows: Count One, 120 months in prison; Count
Three, 60 months in prison to be served
concurrent to the sentence imposed on Count One;
and Count Five, 60 months in prison to be served
consecutive to the sentences imposed on Counts
One and Three. In addition to the total 180-month
term of imprisonment, the court sentenced the
Defendant to a term of three years supervised
release, and ordered that he pay an assessment of
$300. Mancillas appeals.
ISSUES
Whether the district court:
(1) improperly denied Mancillas’ written motion
to suppress physical evidence seized from his
Mercedes on the night of the arrest after finding
that the original stop and detention of the
Defendant, as well as the subsequent search of
his vehicle, were constitutionally permissible;
(2) incorrectly denied the Defendant’s oral
motion to suppress statements he made to Officer
Cook on the night of his arrest;
(3) abused its discretion when it permitted
DEA Agent Casey to offer an expert opinion on
whether, under the circumstances of the AUSA’s
hypothetical, Casey believed that marijuana was
being used for distribution rather than personal
consumption;
(4) gave an erroneous jury instruction on
Count Five, the charge of "knowingly carrying a
firearm during and in relation to a drug
trafficking offense"; or
(5) erred in enhancing Mancillas’ sentence for
obstruction of justice under USSG sec. 3C1.1 and
denying a downward departure for acceptance of
responsibility under USSG sec. 3E1.1.
DISCUSSION
I. Did the court improperly deny Mancillas’
written motion to suppress physical evidence
seized on the night of the arrest?
The Defendant argues that Patrolman Cook’s stop
of Mancillas and subsequent search of his vehicle
infringed upon his Fourth Amendment rights
against unreasonable searches and seizures, in
that Cook lacked a "reasonable suspicion" to
perform an investigatory stop upon Mancillas,
Hardman, and Marshall after they exited the
Mercedes. Despite all the facts and circumstances
therein present, the Defendant further argues
that the officers’ subsequent search of the
interior and trunk of the Mercedes, and attendant
seizure of drug paraphernalia and firearms,
constituted an impermissible search and seizure.
The Defendant’s argument continues and concludes
that the district court’s denial of his written
motion to suppress the physical evidence found in
his vehicle--the guns, the crack pipes, the
cocaine, the marijuana, the screens, etc.--was
improper.
The determinations of reasonable suspicion and
probable cause to search or seize are reviewed de
novo. See Ornelas v. United States, 517 U.S. 690,
697 (1996); United States v. Walden, 146 F.3d
487, 490 (7th Cir. 1998). Factual findings are
reviewed for clear error, see Walden, 146 F.3d at
490, and this Court will not substitute its
judgment for that of the district court if there
is support in the record for the trial court’s
findings of fact. See United States v. Marshall,
79 F.3d 68, 69 (7th Cir. 1996).
A. The Investigatory Stop of Mancillas.
Initially, we address whether Officer Cook’s
initial stop and temporary detention of
Mancillas, which occurred after the Defendant and
his companions exited their car and were walking
away, falls within the permissible parameters of
the Fourth Amendment. After Cook arrived on the
scene and the suspects exited the car each
walking in different directions, Patrolman Cook
commanded the Defendant-Appellant to stop and
return to his vehicle. Initially, we note that
the officer’s order to stop constitutes a
"seizure" for Fourth Amendment purposes, for
"whenever a police officer accosts an individual
and restrains his freedom to walk away, he has
’seized’ that person." Terry, 392 U.S. at 16. But
"what the Constitution forbids is not all
searches and seizures, but unreasonable searches
and seizures." Elkins v. United States, 364 U.S.
206, 222 (1960).
Two categories of seizure implicate the Fourth
Amendment: an investigative stop and an arrest.
See United States v. Adebayo, 985 F.2d 1333, 1337
(7th Cir. 1993); United States v. Withers, 972
F.2d 837, 841 (7th Cir. 1992). Investigative
stops (referred to as Terry stops) are by their
very nature brief, and allow "police officers the
chance to verify suspicions that the person has
been, is, or is about to engage in criminal
activity." United States v. Griffin, 150 F.3d
778, 783 (7th Cir. 1998) (citing United States v.
Rivers, 121 F.3d 1043, 1045 (7th Cir. 1997)). In
Terry, the Supreme Court explained that officers
have authority
[to conduct] a reasonable search for weapons for
the protection of the police officer, where he
has reason to believe that he is dealing with an
armed and dangerous individual, regardless of
whether he has probable cause to arrest the
individual for a crime. The officer need not be
absolutely certain that the individual is armed;
the issue is whether a reasonably prudent man in
the circumstances would be warranted in the
belief that his safety or that of others was in
danger. And in determining whether the officer
acted reasonably in such circumstances, due
weight must be given, not to his inchoate and
unparticularized suspicion or "hunch," but to the
specific reasonable inferences which he is
entitled to draw from the facts in light of his
experience.
Terry, 392 U.S. at 27 (citations omitted).
Thus, a law enforcement officer may stop an
individual if "specific and articulable facts
which, taken together with rational inferences
from those facts, reasonably warrant that
intrusion," id. at 21, and support a reasonable
suspicion that "criminal activity may be afoot."
Id. at 30. Reasonable suspicion requires less
than the quantum of proof constituting probable
cause. See id. at 21-22; Sokolow, 490 U.S. at 7
(citation omitted); Terry, 392 U.S. at 21-22.
In making this assessment, "it is imperative
that the facts be judged against an objective
standard: would the facts available to the
officer at the moment of the seizure or the
search ’warrant a man of reasonable caution in
the belief’ that the action taken was
appropriate?" Terry, 392 U.S. at 21-22; see also
Griffin, 150 F.3d at 783. In order to determine
whether reasonable suspicion existed, we examine
"the totality of the circumstances--the whole
picture[.]" United States v. Cortez, 449 U.S.
411, 417 (1981) (emphasis added). We bear in mind
that "[t]he process does not deal with hard
certainties, but with probabilities." Id. at 418.
The real issue "is whether the police conduct--
given their suspicions and the surrounding
circumstances--was reasonable." United States v.
Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994)
(citing Terry, 392 U.S. at 19-20).
Thus, applying the totality of circumstances
test, we must determine whether Officer Cook had
reasonable suspicion to stop and momentarily
detain Mancillas in the early morning hours of
December 17, 1996. Mancillas argues that it is
"critical" that "the [radio] dispatch did not
describe, and Cook did not observe, any definite
wrongdoing in progress." He contends that a radio
call which fails to describe wrongdoing in
progress does not rise to the level of providing
police officers with reasonable suspicion that
criminal conduct has occurred, was occurring or
was about to occur, and consequently, Cook lacked
reasonable suspicion to believe that criminal
activity was afoot. Mancillas relies on two
cases, United States v. Packer, 15 F.3d 654 (7th
Cir. 1994), and United States v. DeBerry, 76 F.3d
884 (7th Cir. 1996), in support of his position
that the radio dispatch did not provide Cook the
requisite degree of reasonable suspicion to make
the stop.
In Packer, police responded to a citizen’s
telephone call reporting a "suspicious vehicle,"
described by the citizen as a yellow Cadillac
with four black male occupants, parked alongside
a residential street at one o’clock in the
morning. Packer, 15 F.3d at 655. Three police, in
two police vehicles, arrived on the residential
street just moments later, and found what they
described as a "greenish" Cadillac with fogged
over windows. See id. Two officers in a police
van parked their vehicle behind the yellow-green
Cadillac and activated their "take down lights,"
while the third officer pulled his police cruiser
in front of the Cadillac to prevent it from
leaving. The three officers approached the
Cadillac, and as one of the occupants exited
through a rear door of the car, an officer saw a
dark, pipe-shaped object protruding approximately
two inches from the suspect’s knee-length coat.
See id. at 655-56. The officers believed the
object was a gun, and one officer reached into
the man’s coat and grabbed the object. See id. at
656. Thereafter, the individual previously in
possession of the gun--Packer--was charged with
being a felon in possession of a firearm in
violation of 18 U.S.C. sec. 922(g)(1).
Defendant Packer moved to suppress evidence of
the firearm arguing that the investigatory stop
violated his Fourth Amendment rights because the
officers lacked a "reasonable and articulable
suspicion" that criminal activity was afoot as
required by Terry, 392 U.S. 1. The district court
denied the motion to suppress, finding that the
citizen’s report, the lateness of the hour, and
the fogged car windows provided the officers with
sufficient justification to make the initial
stop. See Packer, 15 F.3d at 656. We reversed,
holding that even though the citizen’s report
described the Cadillac and its location, the mere
fact that "four men [were] sitting together in a
parked car at the wee hours of the morning" did
not constitute sufficient grounds for a
"reasonable and articulable suspicion" to believe
that criminal activity was afoot. Id. at 658-59.
As a result, we reversed the Defendant’s
conviction because the evidence seized during the
encounter should have been suppressed. See id. at
659. Mancillas argues that his case is similar to
Packer, and thus Officer Cook lacked a reasonable
suspicion to stop him. We disagree.
While Packer is marginally instructive, the
facts in that case are distinguishable from the
case sub judice, and thus Packer falls short of
governing our determination. In Mancillas’ case,
Patrolman Cook received a 1:35 a.m. radio
dispatch reporting that a Hispanic male had just
been observed holding a gun while sitting inside
a blue Mercedes in the parking lot of the "Hot’s
Show Club" at 1:30 a.m. Cook pulled into the Club
parking lot and a number of the details which had
been relayed in the radio dispatch were
immediately corroborated. That is, Cook observed
a dark blue Mercedes in the Club’s parking lot,
and three men--including one of Hispanic origin--
exited the car. In addition, two suspicious facts
emerged: first, it was certainly unusual to
observe three men sitting in a vehicle in a
nightclub parking lot in the middle of a wintry,
snowy, blustery night at 1:30 a.m.; second, the
three occupants of the car exited as soon as
Officer Cook arrived in his squad car and focused
his spotlight on the Defendant’s vehicle, and at
this time each of them proceeded to walk in
different directions probably in an attempt to
avoid contact with the police and to make it more
difficult for one officer to apprehend the three
of them, with only one of the men (Hardman)
walking toward the Club.
Unlike the radio dispatch in Mancillas’ case,
the citizen’s call in Packer simply reported four
men sitting in a car parked in a residential area
late at night, and made no mention whatsoever of
weapons. In Mancillas’ case, the dispatcher
reported a Hispanic male with a firearm in his
hand, sitting in his Mercedes parked in a
nightclub parking lot at 1:30 a.m. on a cold,
snowy night. In addition, the four occupants of
the Cadillac in Packer did not engage in any sort
of elusive or unusual behavior upon arrival of
the police--they simply sat in their car. In the
instant case, however, as soon as Officer Cook
arrived on the scene, and prior to any
questioning by the police, Mancillas and his
cohorts quickly exited the vehicle and each
walked in different directions.
The fact that the citizen’s report noted that
an individual (later identified as Mancillas)
possessed a firearm, as well as the suspicious
behavior (walking in different directions)
exhibited by the suspects when Patrolman Cook
arrived at the Club, added to the officer’s
reasonable suspicion. See United States v.
Duguay, 93 F.3d 346, 351 (7th Cir. 1996)
(reasonableness of police officer’s suspicions is
buttressed by suspect’s elusive behavior in
turning off road in order to avoid police
roadblock); United States v. Lyles, 946 F.2d 78,
80 (8th Cir. 1991) (investigatory stop lawful in
part because vehicle occupants acted suspiciously
while attempting to drive away). We are persuaded
that the presence of a weapon, combined with the
suspicious actions of the three suspects in
response to Officer Cook’s arrival on the scene,
and the time of night and weather conditions,
distinguish this case from Packer, and Mancillas’
argument that Packer governs our result here is
unavailing.
Mancillas also relies upon DeBerry, 76 F.3d at
884, which he claims supports his position that
"a report of an unnamed individual with a gun
does not provide law enforcement officials with
the requisite reasonable and articulable
suspicion of criminal conduct to conduct a Terry
stop." We do not agree that DeBerry helps
Mancillas; in fact, we are convinced that DeBerry
actually undermines Mancillas’ position.
In DeBerry, an officer on afternoon patrol duty
received a message from his dispatcher conveying
an anonymous tip that a black man in tan shorts
and a tan shirt had a gun in his waistband and
was standing on a city street corner. See id. at
885. The officer drove to the location and found
a man matching the tipster’s description, but no
gun was visible. See id. According to the
officer, the man--DeBerry--took several steps
backward, turned slightly to the side, and moved
his hands as if he might be about to draw a gun.
See id. The officer drew his revolver and ordered
DeBerry to place his hands on the hood of the
police car. DeBerry complied, and the officer
returned his gun to its holster. A backup officer
arrived within two minutes, patted down the
suspect, found the gun, and arrested him. See id.
DeBerry was charged with being a felon in
possession of a firearm in violation of 18 U.S.C.
sec. 922(g)(1) and filed a motion to suppress the
gun, claiming that the officer lacked probable
cause to arrest him until he found the gun, and
therefore the seizure of the gun violated the
Fourth Amendment. See id. The district court
denied the motion to suppress evidence of the
gun.
We affirmed, holding that when officers receive
an anonymous tip accurately describing an
individual and alleging that the individual is
armed, even "weak[ ] corroborat[ion]" entitles
police to stop the person and search the
individual for a gun. Id. at 886. In Mancillas’
case, the dispatch received by Officer Cook was
corroborated (as explained above), and the other
suspicious circumstances, including the time of
night, the prevailing weather conditions, and the
suspects’ decision to exit the vehicle and walk
off in different directions, all provided Officer
Cook with even more reasonable suspicion to stop
Mancillas. As we stated in DeBerry, "[a]rmed
people are so dangerous to the peace of the
community that the police should not be forbidden
to follow up a tip that a person is armed, and as
a realistic matter this will require a stop in
all cases." Id.
In this case, Officer Cook received a police
dispatch stating that a Hispanic male seated in
a blue Mercedes had a gun at the Hot’s Show Club
parking lot. Upon Cook’s arrival at the parking
lot, he observed three males quickly exit their
car and the details contained in the radio
dispatch (a Hispanic male in a blue Mercedes in
Club’s lot with a gun) were confirmed. Then, the
three companions behaved suspiciously by each
walking off in a different direction at 1:30 a.m.
on a cold, wintry night. We are convinced that
the combination of all of these factors gave Cook
a "reasonable and articulable suspicion" to
believe that "criminal activity may [have been]
afoot[,]" Terry, 392 U.S. at 30, and that
Mancillas’ actions warranted further
investigation. Thus, we hold that Officer Cook’s
actions in stopping Mancillas and his companions
from leaving the scene were constitutionally
permissible.
B. The Officers’ Search of the Interior and
Trunk of the Mercedes.
After determining that Officer Cook’s Terry stop
was justified, the district court found that
Officers Cook’s and Lopossa’s subsequent search
of the interior and trunk of the vehicle
satisfied Fourth Amendment standards since Cook
observed the handgun in plain view on the
dashboard of the vehicle and thus had probable
cause to search the interior and trunk of the
Mercedes, and the court further found that
Mancillas consented to the search when he
relinquished his car keys. We agree with the
district court’s conclusion that the search fell
within the parameters of the Fourth Amendment.
In Michigan v. Long, 463 U.S. 1032 (1983), the
United States Supreme Court faced a similar
question regarding the constitutionality of a
search of the passenger compartment of an
automobile after officers viewed a weapon in the
front seat. In Long, two deputies were on patrol
in a rural area at midnight when they observed a
car traveling erratically and at an excessive
speed. See id. at 1035. The vehicle swerved into
a ditch, and the deputies stopped to investigate.
The driver and sole occupant of the car, Mr.
Long, met the deputies at the rear of the car,
leaving the driver’s door open. See id. at 1035-
36. After a deputy asked on three occasions to
see Long’s operator’s license, Long turned from
the officers and began walking toward the open
door of the vehicle. See id. at 1036. The
officers followed Long and both observed a large
hunting knife on the floorboard of the driver’s
side of the car. Upon noticing the weapon, the
officers stopped Long’s progress and conducted a
protective patdown which revealed no weapons on
his person. See id.
One of the deputies shined his flashlight into
the interior of the vehicle to search for other
weapons, but he did not actually enter the car.
The officer noticed that something was protruding
from under the armrest on the front seat, so he
knelt in the vehicle and lifted the armrest. See
id. Underneath the armrest, the deputy noticed an
open pouch sitting on the front seat, and upon
flashing his light on the pouch, determined that
it contained marijuana. At that time, Long was
arrested for possession of marijuana. See id. The
officers searched the trunk and discovered
approximately seventy-five pounds of marijuana
inside. Long filed a motion to suppress the
marijuana taken from the car and the trunk. See
id. The trial judge denied his motion, and he was
convicted of possession of marijuana.
On review, the Supreme Court considered "the
authority of a police officer to protect himself
by conducting a Terry-type search of the
passenger compartment of a motor vehicle during
the lawful investigatory stop of the occupant of
the vehicle." See id. at 1037. In upholding the
constitutionality of the search, the Court
recognized that:
protection of police and others can justify
protective searches when police have a reasonable
belief that the suspect poses a danger . . . and
that danger may arise from the possible presence
of weapons in the area surrounding a suspect.
These principles compel our conclusion that the
search of a passenger compartment of an
automobile, limited to those areas in which a
weapon may be placed or hidden, is permissible .
. . if "specific and articulable facts which,
taken together with the rational inferences from
those facts, reasonably warrant" the officers in
believing that the suspect is dangerous and the
suspect may gain immediate control of weapons.
Id. at 1049 (quoting Terry, 392 U.S. at 21).
In reaching this result, the Court relied on New
York v. Belton, 453 U.S. 454, 460 (1981), wherein
the Court held that "articles inside the
relatively narrow compass of the passenger
compartment of an automobile are in fact
generally, even if not inevitably, within ’the
area into which an arrestee might reach in order
to grab a weapon’ . . . ." Id. (quoting Chimel v.
California, 395 U.S. 752, 763 (1969)).
Considering the totality of circumstances facing
Patrolmen Cook and Lopossa at the time of and
immediately prior to Mancillas’ arrest, we hold
that the officers certainly had reason to have a
reasonable fear for their safety and were within
their authority to conduct a search of the
parties and the vehicle. The police officers had
information that a Hispanic male seated in a car
parked in a nightclub parking lot was observed
with a revolver in his hand; when Officer Cook
arrived, there was a gun sitting in plain view on
the dashboard of the Mercedes from which a
Hispanic male had just exited; the suspects
exited the vehicle and proceeded in different
directions obviously attempting to evade contact
with police; and Mancillas and the other
occupants initially denied that they had a gun in
spite of the fact that a gun could be seen on the
dashboard of the vehicle in plain view
immediately in front of the steering wheel on the
driver’s side which Mancillas had just exited.
Under Michigan v. Long and its progeny, the
dashboard of Mancillas’ Mercedes fell within "the
area into which an arrestee might reach in order
to grab a weapon . . .," Chimel, 395 U.S. at 763,
and thus the search was constitutional.
This Circuit’s decisions also support the
constitutionality of the search performed in this
case. In United States v. Holifield, 956 F.2d 665
(7th Cir. 1992), an individual who was stopped by
police for speeding exited his vehicle and
approached the police officers’ unmarked car in
a boisterous and aggressive manner. He agreed to
cooperate in a search of his person and
voluntarily produced his driver’s license. See
id. at 666. After a patdown search revealed no
weapons, the officers looked through the car’s
tinted windows, observed two passengers seated in
the vehicle, and asked them to exit the car; the
passengers were frisked but were found not to be
carrying weapons. See id. Because it was normal
procedure to allow persons to wait in their car
while writing a citation, one officer proceeded
to search the car interior, removed the keys from
the car’s ignition, unlocked the glove
compartment, and discovered a pistol. See id. at
667. The Defendant admitted ownership of the gun
and was arrested and indicted on three federal
offenses relating to the illegal possession of a
firearm. See id. at 667-68. The Defendant filed
a motion to suppress evidence of the gun, arguing
that the officers’ search was unlawful. See id.
at 666.
The district court denied the motion to
suppress, and we affirmed, reasoning that "the
absence of weapons on the [defendant], and the
fact that there was no further aggressive
behavior did not, as a matter of law, make
continuing apprehension of danger unreasonable."
Id. at 668. We disagreed with the Defendant’s
argument that it was unreasonable to search the
locked glove compartment, noting that once the
occupants returned to the car, "it would have
taken only a few seconds for Holifield or one of
his passengers to remove the keys from the
ignition and unlock the glove compartment, thus
giving them immediate access to the pistol." Id.
at 668-69. Finally, we observed that "the Supreme
Court has rejected the reasoning that because the
occupants have exited the vehicle and are under
the control of officers, the officers could not
reasonably believe that they could gain immediate
control of a weapon located inside the vehicle."
Id. at 669 (citing Long, 463 U.S. at 1051).
This Court applied similar reasoning to uphold
a protective search in United States v. Brown,
133 F.3d 993 (7th Cir. 1998), cert. denied, 118
S. Ct. 1824 (1998). In Brown, police officers
stopped two persons suspected of prowling late at
night in a high-crime neighborhood. See id. at
995. After the suspects were removed from their
car, an officer scanned the interior of the
vehicle with his flashlight and observed a "shiny
chrome object" protruding from a black bag and
believed it might be a weapon. Id. The officer
opened the bag, and found the chrome object to be
a .44 Magnum with a scope attached to the top.
The Defendant was indicted and moved to exclude
from evidence his possession of the .44 Magnum.
See id. at 994-95. The district court admitted
the evidence and the Defendant was convicted of
three federal offenses relating to his possession
of firearms. The Defendant appealed alleging that
the search of the bag and seizure of the gun were
unconstitutional. See id.
We affirmed, holding that the defendant "was
not so far from the car that he could not lunge
for a gun inside it, or in the words of the
Supreme Court in Michigan v. Long, not so far
that he could not have gained ’immediate control
of weapons.’ 463 U.S. at 1049." Id. at 998. We
further held that when the officer observed the
shiny chrome object, "the danger posed by the
encounter multiplied exponentially," and the
officer "had no reasonable choice other than to
open the bag." Id. at 999. We further concluded
that "[t]he fear generated from the ’risk of re-
entry’ is a reasonable one . . . ." Id. at 998
(citing Holifield, 956 F.2d at 668-69).
In the instant case, the following facts bear
upon our determination dealing with the question
of whether Cook had reasonable suspicion to make
the Terry stop and protective search in light of
his concerns for his safety. Initially, we note
that after Officer Cook had directed the suspects
to place their hands on the hood of the Mercedes,
Cook looked into the car and confirmed that a
revolver was on the dashboard of the automobile.
In addition, the police radio dispatch reported
that a Hispanic male was holding a gun while
seated in a blue Mercedes in the Hot’s Show Club
parking lot, and when Cook arrived, the details
relayed in the dispatch were confirmed because
Mancillas, a Hispanic male, was found exiting the
blue Mercedes and Cook reasonably could have
believed that Mancillas was carrying the gun
mentioned in the dispatch. Further, when Cook
first detained the three individuals, he was the
only officer on the scene and feared that when
they walked in different directions they would
surround him "in some type of triangulation."
Under the totality of the circumstances, and in
light of Supreme Court and Seventh Circuit
precedent, we are convinced that the officers
were entitled to search the interior of the car
to ensure their own safety, and the search was
within the confines of the Fourth Amendment.
Because both the investigatory stop and the
subsequent search of the Mercedes were
constitutionally permissible within the
parameters of the Fourth Amendment, we hold that
the district court’s denial of Mancillas’ motion
to suppress the physical evidence seized on the
night of his arrest was proper.
II. Whether the trial judge abused her discretion
when she denied Mancillas’ oral motion to
suppress statements Mancillas made to Officer
Cook on the night of his arrest.
Mancillas next contends that statements he made
to Officer Cook should have been suppressed at
trial because Cook failed to advise Mancillas of
his Miranda rights prior to the time Mancillas
made the statements. We review de novo the
district court’s determination that the
statements were admissible. See United States v.
James, 113 F.3d 721, 727 (7th Cir. 1997); United
States v. Yusuff, 96 F.3d 982, 988 (7th Cir.
1996). Any "historical" facts and credibility
determinations are reviewed deferentially under
the clear error standard. Yusuff, 96 F.3d at 988
(citing Thompson v. Keohane, 516 U.S. 99, 111
(1995), and Ornelas, 517 U.S. at 699).
The statements admitted at trial of which
Mancillas complains are: three responses of "no"
to Officer Cook’s question (asked three times)
"who had a gun"; his admission that there was a
gun in the car; and his later admission that he
lacked a permit for the gun. Officer Cook
posed the questions regarding (1) "who had a gun"
and (2) whether there was a gun in the car after
stopping the three men and directing them to
return to the vehicle with their hands on the
hood of the car. At the time these questions were
asked, Cook had arrived on the scene and waited
approximately one minute for Lopossa to arrive
and also had spotted the Taurus handgun on the
dashboard. In addition, Officer Lopossa had
finished the patdown search of the suspects,
which took approximately another minute or so,
and Patrolman Cook had returned his service
revolver to its holster and walked ten feet to
the Mercedes. Mancillas responded to the
questions as stated previously.
Cook attempted to open the car door, requested
Mancillas’ keys, received the keys, and opened
the door. Cook inspected the Taurus handgun and
observed drug paraphernalia lying in plain view
on the console. Also at this time, Lopossa
entered the car and discovered a second gun as
well as the drug paraphernalia. Cook testified
that at this time, "everyone [was] effectively
under arrest" for possession of paraphernalia and
controlled substances. Cook proceeded to ask
whether any of the companions possessed a permit
for the handgun, and Mancillas responded, "No."
It is undisputed that neither Officer Cook nor
any other officer present at the Club’s parking
lot advised Mancillas of his Miranda rights at
any time.
The court ruled that all of Mancillas’
statements dealing with the ownership of the gun
and his lack of a permit were admissible at trial
because the Defendant had waived his Miranda
objection by failing to give notice to the court
and the government that he would object to their
admission, and by failing to actually make any
objection in a timely and complete fashion prior
to the suppression hearing (as noted, Mancillas
failed to object until the Friday before Monday,
in effect the day before trial, even though a
court order required him to file motions to
suppress months earlier). Alternatively, the
court found that the statements "were made prior
to [the Defendant’s] being placed under arrest."
Mancillas argues that he preserved his Miranda
objection and that he was the subject of a
"custodial interrogation" when he made the
statements, thus the officers’ failure to give
Miranda warnings made his statements
inadmissible.
Initially, we address whether Mancillas waived
his Fifth Amendment objection. On May 29, 1997,
the district court issued an order setting forth
the case schedule, setting the trial for July 21,
1997, and advising the parties that "all MOTIONS
of the parties contemplated by the Federal Rules
of Criminal Procedure shall be filed within 15
days after [the] appearance by the attorney for
the Defendant." On June 4, 1997, the Defendant,
represented by appointed counsel, made his
initial appearance. On June 20, 1997, Mancillas
filed a written motion to suppress the physical
evidence seized (guns, drugs, etc.) on the
grounds that the search and seizure of his car
violated his Fourth Amendment rights. In this
motion, the Defendant failed to seek exclusion,
under Miranda or any other theory, of the
statements he made at the time of his arrest.
Thereafter, on two other occasions, Mancillas
moved for a continuance of the suppression
hearing and trial dates, and the court granted
both motions and reset the dates two separate
times. The suppression hearing was rescheduled
for Friday, September 12, 1997; the trial was set
to begin three days later, on Monday, September
15, 1997. On the day of the suppression hearing,
the Defendant filed a "Supplemental Memorandum"
in support of his motion to suppress, which set
forth his Fourth Amendment arguments to suppress
physical evidence. Like the Defendant’s original
motion, the supplemental memorandum failed to
refer to any Fifth Amendment issues or to any
objections regarding the admission at trial of
Mancillas’ statements.
Nevertheless, approximately two-thirds of the
way through the suppression hearing, defense
counsel for the first time objected, pursuant to
the Fifth Amendment and Miranda, to the admission
of any of Mancillas’ statements made in violation
of Miranda. The transcript reads as follows:
COURT: [A]re you seeking to suppress statements?
COUNSEL: I have not decided yet, Your Honor. I
will know by early afternoon.
COURT: The Court is going to rule promptly, so you
may have waived your right to that by not giving
the Court sufficient notice.
COUNSEL: We would like to suppress any statements
made by Mr. Mancillas that were not in accordance
with his Miranda.
COURT: That’s just what I’m saying, you may have
waived that.
COUNSEL: I understand.
Later during the hearing, the trial judge ruled
that Mancillas had indeed waived his Fifth
Amendment objections because he failed "to
provide notice of any intention to suppress
evidence under the Fifth Amendment, and so that
claim, if it ever was intended to be asserted,
has been waived . . . ."
Federal Rule of Criminal Procedure 12(b)
requires that motions to suppress evidence be
raised prior to trial. See United States v.
Krankel, 164 F.3d 1046, 1051 (7th Cir. 1998). The
court may, however, set a time for the making of
pretrial motions. See Fed. R. Crim. P. 12(c).
"Failure by a party to raise defenses or
objections . . . which must be made prior to
trial [or] at the time set by the court pursuant
to subdivision (c) . . . shall constitute waiver
. . . ." Fed. R. Crim. P. 12(f). Moreover, a
defendant who fails to file a motion to suppress
evidence in the trial court waives his right to
appellate review of the issue. See Krankel, 164
F.3d at 1051 (citing United States v. Smith, 80
F.3d 215, 218 (7th Cir. 1996)).
The Defendant argues that there was no waiver,
and thus we should review his Fifth Amendment and
Miranda arguments on the merits. We disagree. The
case sub judice is similar to United States v.
Hamm, 786 F.2d 804, 806 (7th Cir. 1986), wherein
the court issued an "Order for Pretrial Discovery
and Inspection direct[ing] that motions be filed
within fifteen (15) days of the arraignment." Id.
The Defendant failed to file the motion within
the allowable fifteen day period, and thereafter
moved to suppress a co-defendant’s statements
under Miranda pursuant to the Fifth Amendment.
See id. The court denied the motion ruling that
it was untimely filed, and we affirmed. See id.
Similarly, in United States v. Knezek, 964 F.2d
394, 397-99 (5th Cir. 1992), the Defendant moved
to suppress evidence after expiration of the
deadline for pretrial motions set by the court.
The trial judge ruled that the Defendant waived
his right to challenge the evidence, and the
Fifth Circuit agreed, holding that
[a] district court does not abuse its discretion
under Rule 12(f) in denying a suppression motion
solely on the grounds that the defendant failed
to comply with pretrial procedures. [The
Defendant] unquestionably failed to comply with
Rule 12 and the local rules [which permitted the
judge to set the cut-off date for pretrial
motions, including motions to suppress evidence].
Id. at 397. See also United States v. Bullock,
590 F.2d 117, 120 (5th Cir. 1979) (noting "the
district court would not have abused its
discretion under Rule 12(f) if it had denied
defendant’s various suppression motions relying
solely on defendant’s failure to comply with
pretrial procedures.")
Mancillas failed to file a motion to suppress
his statements within the mandatory fifteen day
period set by the court in its order governing
the case proceedings. Moreover, the Defendant
waited until the Friday before Monday’s trial to
raise the issue for the first time. Under these
circumstances, we agree with the court’s decision
that Mancillas waived his right to argue that his
statements were inadmissible under Miranda. As
such, the court properly admitted them.
III. Whether the district judge abused her
discretion when she permitted DEA Agent Casey to
offer an expert opinion that under the
hypothetical circumstances presented by the AUSA,
the 420 grams of marijuana was intended for
distribution rather than personal consumption.
Count Three of the Indictment, charging
Mancillas with possession with intent to
distribute marijuana, is a specific intent crime
which required the jury to find that the
Defendant possessed the marijuana and that he
intended to distribute the marijuana. See United
States v. Lewis, 110 F.3d 417, 420 (7th Cir.
1997); U.S. v. Cea, 914 F.2d 881, 887 (7th Cir.
1990). In order to establish that Mancillas
intended to distribute the 420 grams of marijuana
found in the trunk of his Mercedes, the
government called DEA Special Agent Casey as an
expert witness at trial. Casey commenced his
testimony with a recitation of his qualifications
and testified that early in his law enforcement
career he spent nine and one-half years with the
Indianapolis Police Department, including five
years in the narcotics and dangerous drugs
division. Over the course of his employment with
the IPD and the DEA, Casey was involved in excess
of 2000 controlled substance investigations.
Following his work as an officer with the IPD,
Casey accepted a position with the DEA, and just
before joining the DEA, he received specialized
training and education regarding the enforcement
of federal laws regulating controlled substances.
Casey testified that he has spent the past
nineteen years as a special agent with the DEA
and was recently promoted to a supervisory
position within that Agency.
After stating his qualifications, Casey
proceeded to describe the items that, based upon
his experience, constitute the "tools of the
trade" in the world of drug trafficking. Finally,
Casey explained what the term "source city" means
in common drug parlance, namely a city from which
drugs originate for distribution to satellite
cities.
The AUSA proceeded to question Casey as
follows: "Special Agent Casey, let me ask you
this hypothetical question concerning evidence
that’s been developed in this case outside of
your presence." Mancillas objected to the
hypothetical on the grounds that it was
impermissible for Casey to testify to the
Defendant’s guilt or innocence, and that the
prosecution should not be permitted to show Casey
the actual exhibits in the Defendant’s trial (for
instance, the photograph of marijuana with a note
bearing the notation "420 g") and then ask, "do
you think they were drug dealing[,]" because
according to the Defendant, "that invades the
province of the jury." After permitting the AUSA
to explain the hypothetical outside the presence
of the jury, the judge overruled the Defendant’s
objection finding that the hypothetical, as
framed, did not amount to the prosecutor asking
Agent Casey to state whether these particular
defendants were dealing drugs. The AUSA continued
her questioning, asking "[i]f I told you the
following facts, could you please tell me if you
have an opinion as to what may or may not have
been occurring in terms of distribution or
nondistribution on a given evening [?]" The AUSA
then proceeded to offer a "hypothetical" which
required Casey to assume the following facts:
that 400 grams of marijuana were found in a clear
plastic baggie which also contained a slip of
paper bearing the notation "420g"; that within
the vicinity of the marijuana was also found a
handgun, a scale, two pagers, a cellular phone,
and $2440 in currency, primarily in $100 bills.
The AUSA then showed Casey an exhibit picturing
the bag containing the marijuana and the note
stating "420G" found in Mancillas’ trunk, and the
following colloquy occurred:
AUSA: Knowing those factors, could you give us
an opinion as to whether that marijuana was being
held for distribution or for personal
consumption?
Casey: Yes, ma’am. I could.
AUSA: Okay. Could you tell the jury what your
opinion is?
Casey: My opinion is that it’s for
distribution.
Agent Casey further testified that based on his
extensive experience, one-half to three-quarters
of a pound of marijuana would be for distribution
because a person using this amount of marijuana
for personal consumption would have to smoke
thirty to thirty-five joints per day.
On appeal, Mancillas contends that the district
court’s decision to admit Casey’s response to the
hypothetical violated Federal Rule of Evidence
704(b), because the opinion constitutes "ultimate
issue" testimony (it is an opinion on the
"ultimate issue" of the Defendant’s intent to
distribute, an element of the crime charged). On
review, we give great deference to the district
court’s evidentiary rulings, and will reverse the
admission of Casey’s testimony "only upon a
showing that the district court committed a clear
abuse of discretion." United States v. Brown, 7
F.3d 648, 651 (7th Cir. 1993) (internal quotation
marks omitted).
Rule 704(b) states as follows:
No expert witness testifying with respect to the
mental state . . . of a defendant in a criminal
case may state an opinion or inference as to
whether the defendant did or did not have the
mental state or condition constituting an element
of the crime charged. . . . Such ultimate issues
are matters for the trier of fact alone.
Fed. R. Evid. 704(b). The parties agree, and we
have held, that Rule 704(b) applies to the expert
testimony of law enforcement officers. See, e.g.,
United States v. Willis, 61 F.3d 526 (7th Cir.
1995); United States v. Lipscomb, 14 F.3d 1236
(7th Cir. 1994); United States v. Brown, 7 F.3d
648 (7th Cir. 1993). In Lipscomb, 14 F.3d at
1242, we explained that:
[W]hen a law enforcement official states an
opinion about the criminal nature of a
defendant’s activities, such testimony should not
be excluded under Rule 704(b) as long as it is
made clear, either by the court expressly or in
the nature of the examination, that the opinion
is based on the expert’s knowledge of common
criminal practices, and not on some special
knowledge of the defendant’s mental processes.
In making this determination, a relevant factor
is the degree to which the expert witness states,
and/or specifically refers to, the intent of the
defendant, because this might conceivably suggest
that the expert’s opinion "is based on some
special knowledge of the defendant’s mental
processes." Id. at 1243.
Mancillas contends that neither the AUSA’s
direct examination or the district court judge
made it clear to the jury that Casey was not
attempting to infer that he had special knowledge
of the Defendant’s mental processes. The
government, on the other hand, responds that the
nature of the AUSA’s examination "apprise[d] the
jury that Agent Casey’s opinion was based solely
on his knowledge of common criminal practices,
rather than on any personal knowledge of
Mancillas or the circumstances of his case."
We agree with the government that the AUSA’s
examination, taken as a whole, apprised the jury
that Agent Casey’s opinion was based on his
knowledge of criminal practices generally, and
not on some special knowledge of Mancillas’
mental processes. See Fed. R. Evid. 704(b). To
begin with, prior to the hypothetical, every one
of the AUSA’s questions dealt with Casey’s
experience, training and knowledge of drug
trafficking enterprises. He testified about his
personal knowledge and experiences, about common
"tools of the trade" in the drug trafficking
business, and he distinguished between source
cities and satellite cities. Throughout the
AUSA’s direct examination, there was absolutely
no discussion of the facts involved in Mancillas’
case. In addition, as the government makes clear
in its brief, Mancillas’ name was not even
mentioned during the direct examination,
including during the hypothetical posed by the
government. And, our review of the trial
transcript reveals that Agent Casey neither
testified nor purported to have knowledge of
Mancillas’ mental processes. Furthermore, it is
interesting to note that Agent Casey never
referred to the terms "intent" or "intended," the
words directly triggering application of Rule
704(b). See Brown, 7 F.3d at 653 n.2 ("It is only
the expert’s use of the word ’intended’ that
implicates the rule.").
We conclude that Agent Casey based his opinion
on his knowledge of the drug trade rather than on
any alleged or conceived familiarity with the
working of Mancillas’ mind. See Lipscomb, 14 F.3d
at 1243. The district judge acted within her
discretion when she admitted Casey’s opinion over
Mancillas’ objection.
IV. Whether the district court’s jury instruction
on Count Five, the charge of "knowingly carrying
a firearm during and in relation to a drug
trafficking offense," was erroneous.
Mancillas next complains about the jury
instructions detailing the elements of the crime
charged in Count Five of the Indictment, which
charged that on or about December 17, 1996,
Mancillas "did knowingly carry a firearm during
and in relation to a drug trafficking crime . .
. in violation of Title 18, United States Code,
Section 924(c)(1)." We review a trial court’s
instructions to the jury with great deference.
See United States v. Kelly, 167 F.3d 1176, 1178
(7th Cir. 1999) (citation omitted). When
conducting this deferential review, we note that
more frequently than not litigants rephrase and
reframe the testimony to their benefit and take
jury instructions out of context when making
their appellate arguments. Thus, we analyze the
instructions as a whole and not piecemeal to
determine if they are accurate statements of the
law. See id.; United States v. Liporace, 133 F.3d
541, 545 (7th Cir.), cert. denied, 118 S. Ct.
1823 (1998). The instructions given by the court
must be accurate statements of the law that are
supported by the facts in the case. See United
States v. Perez, 43 F.3d 1131, 1137 (7th Cir.
1994). We consider whether the court’s jury
instructions misled the jury and whether the jury
had an understanding of the issues. See id.
(citations omitted). "As we have stated before,
instructions ’which are accurate statements of
the law and which are supported by the record
will not be disturbed on appeal.’" United States
v. Vang, 128 F.3d 1065, 1069 (7th Cir. 1997)
(citation omitted). Moreover, even an erroneous
instruction will be reversed "only if the jury’s
comprehension of the issues is so misguided that
it prejudiced the complaining party." Id.
(quoting United States v. Smith, 103 F.3d 600,
606 (7th Cir. 1996) (other quotation omitted)).
Mancillas acknowledges that Count Five of the
Indictment charged him with "knowingly carrying
a firearm during and in relation to a drug
trafficking crime" in violation of 18 U.S.C. sec.
924(c)(1), and he argues that the court’s
instructions on that count were erroneous.
Mancillas alleges that the trial court (1) gave
an erroneous definition of the phrase "during and
in relation to"; (2) erroneously defined the term
"carry"; and (3) failed to expressly instruct
that the gun must "knowingly" be carried to
warrant a conviction.
Initially, Mancillas alleges that the court’s
instructions on the meaning of the phrase "during
and in relation to" misstated the law. The
instructions stated that the phrase should be
"interpreted in accordance with its plain
meaning, which could include that the firearm
facilitated or had the potential of facilitating
the drug trafficking offense." We are of the
opinion that the instruction correctly summarizes
the state of the law as applied to the facts of
this case, thus we can summarily dispose of
Mancillas’ argument. In Wilson v. United States,
125 F.3d 1087, 1093 (7th Cir. 1997), this Circuit
held that "[i]n order for a firearm to satisfy
the ’in relation to’ prong of the offense it must
at least ’facilitat[e], or ha[ve] the potential
of facilitating’ the drug trafficking offense."
(quoting Smith v. United States, 508 U.S. 223,
238 (1993)) (other quotation omitted). Contrary
to Mancillas’ claims, and as illustrated by
Wilson, the district court’s instruction defining
"during and in relation to" was precisely in line
with the precedent of this Circuit.
Second, Mancillas contends that the court erred
when it defined "carrying" as "ha[ving] its
ordinary meaning which includes, among other
things, to ’transport’ a firearm." Mancillas’
argument rests on his notion that Bailey v.
United States, 516 U.S. 137 (1995) provides the
controlling definition of "carrying" for purposes
of sec. 924(c)(1). He claims that the Supreme
Court in Bailey "require[d] that a firearm be
actively employed in a way directly connected
with a drug trafficking offense," and that "the
inert transportation of a firearm while a drug
trafficking offense is occurring is not enough to
meet this test." We disagree. In Bailey, the
Court "granted certiorari to clarify the meaning
of ’use’ under 924(c)(1)." Id. at 142. The Court
clearly distinguished between the "use" and
"carry" prongs of Section 924(c)(1), and noted
that "Congress used two terms because it intended
each term to have a particular, nonsuperfluous
meaning." Id. at 146. The Court proceeded to hold
that "a conviction under the ’use’ prong" of
924(c)(1) requires proof "that the defendant
actively employed the firearm . . . ." Id. at
150. Here, Mancillas was not charged with "using"
a firearm, only with "carrying" a firearm. Thus,
Bailey is not the touchstone for the district
court’s instructions on the elements of
"carrying" a firearm.
A better guide is Muscarello v. United States,
524 U.S. 125, 118 S. Ct. 1911 (1998), which
unlike Bailey, addresses the "carry" prong of
924(c)(1). In Muscarello, the United States
Supreme Court stated as follows:
The question before us is whether the phrase
"carries a firearm" is limited to the carrying of
firearms on the person. We hold that it is not so
limited. Rather, it also applies to a person who
knowingly possesses and conveys firearms in a
vehicle . . . which the person accompanies.
118 S. Ct. at 1913-14. The Court proceeded to
hold that guns locked in a glove compartment or
kept in the trunk of a vehicle satisfy the
"carry" prong of sec.924(c)(1), id. at 1914,
further demonstrating that Mancillas’ argument,
that "carrying" a firearm requires "active
employment" of the weapon, is misguided.
We have considered the meaning of "carry" as
used in sec. 924(c)(1) in United States v.
Molina, 102 F.3d 928 (7th Cir. 1996). There, we
stated that
[t]he relation between the firearm and the drugs-
- which is, after all, the core of the offense--
is best established by their relation to each
other, and not by the distance between owner and
gun at the moment of arrest . . . . a gun does
not have to be within a defendant’s immediate
reach.
Id. at 932. Moreover, in United States v. Baker,
78 F.3d 1241, 1247 (7th Cir. 1996), we explicitly
defined the term "carry" to mean "to move while
supporting: Transport." (citing Merriam-Webster’s
Collegiate Dictionary 175 (10th ed. 1993)). "[I]t
is the possession of the firearm coupled with the
affirmative act of transporting it during and in
relation to a drug trafficking crime that
precipitates liability under sec. 924(c)(1)." Id.
We are convinced that the trial court did not
mislead the jury in any way by defining
"carrying" as "having its ordinary meaning which
includes, among other things, to ’transport’ a
firearm," and by not requiring the jury to find
that Mancillas "actively employed" the firearm.
Finally, Mancillas believes that the trial court
erred by failing to expressly instruct the jury
that the gun must be carried "knowingly" before
a conviction is warranted under sec. 924(c)(1).
Mancillas failed to object, either at trial or at
the instructions conference, to the district
court’s alleged failure to include a separate
"knowledge" instruction. As such, his argument is
waived absent plain error. See United States v.
Douglas, 818 F.2d 1317, 1320 (7th Cir. 1987). We
have previously held that sec. 924(c)’s "during
and in relation to" element, discussed above,
encompasses a knowledge requirement. In United
States v. Gutierrez, 978 F.2d 1463 (7th Cir.
1992), this Court held that an indictment was not
defective for failing to explicitly state the
knowledge requirement. We agreed with the
district court’s conclusion that "[c]learly, a
person cannot have possession or control of a
firearm and allow the firearm to play a role in
the crime unless the person [had knowledge] of
the firearm’s existence." Id. at 1467. Moreover,
even if we were convinced that a separate
knowledge instruction was required, there is no
plain error because we do not believe that a
separate instruction defining "knowledge" would
have influenced the verdict. See Douglas, 818
F.2d at 1320 ("Plain error must be of such a
great magnitude that it probably changed the
outcome of the trial."). The following facts are
relevant to our determination. Initially, we note
that during Mancillas’ trial, Hardman testified
that minutes before Officer Cook arrived,
Mancillas displayed the Taurus weapon to the
three individuals who approached them that cold,
snowy and wintery December 17, 1996 night. In
addition, Kirk testified that Mancillas borrowed
the gun from Kirk the night before Mancillas was
arrested (and the court specifically credited
Kirk’s testimony). Finally, Cook stated that
before Mancillas was arrested and after Cook had
observed the handgun on the dashboard in front of
the very seat where Mancillas was sitting, the
Defendant (when questioned a third time) admitted
that the handgun in question belonged to him.
After examining all of these factors, we are
convinced that Mancillas well knew he was
carrying the firearm, and any rational jury would
have found this to be true. Thus, the trial
judge’s decision to not include a separate
knowledge instruction did not constitute clear
error.
Considered in their entirety, the jury
instructions on the elements of the crime of
"knowingly carrying a firearm during and in
relation to a drug trafficking crime" accurately
stated the law. We are not persuaded that the
jury was misled by the jury instructions in any
way, and we are convinced that the jurors had an
understanding of the issues presented and the law
applicable thereto. See Perez, 43 F.3d at 1137.
V. Whether the trial court erred when enhancing
Mancillas’ sentence for obstruction of justice
under USSG sec. 3C1.1 and denying a downward
departure for acceptance of responsibility under
USSG sec. 3E1.1.
A. Enhancement for Obstruction of Justice.
Mancillas next contends that the sentencing
judge committed error when she enhanced his
sentence for obstruction of justice pursuant to
USSG. sec. 3C1.1, which states in relevant part:
Obstruction or Impeding the Administration of
Justice. If the defendant willfully obstructed
or impeded, or attempted to obstruct or impede,
the administration of justice during the
investigation . . . of the instant offense,
increase the offense level by 2 levels.
The sentencing judge enhanced Mancillas’ base
offense levels for Count One (felon in possession
of a firearm) and Count Three (possession of
marijuana with intent to distribute) by two
levels each. We review de novo the district
court’s application of the guidelines and we
review factual findings in the sentencing phase
for clear error. See Yusuff, 96 F.3d at 989
(citation omitted).
The sentencing judge found that Mancillas had
attempted to obstruct justice by asking James
Kirk to falsely claim responsibility for the
Taurus weapon found in the Mercedes. The court
found that, prior to trial, the Defendant asked
Kirk to testify falsely that he had accidentally
left the Taurus weapon in the Mercedes when he
had borrowed the vehicle from Mancillas. Although
Kirk had misstated the facts to an officer early
in the investigation, once the trial began and
Kirk was placed under oath, he refused to accede
to Mancillas’ request that he testify falsely and
decided to tell the truth, stating that Mancillas
had borrowed the gun from Kirk on the evening of
December 16, 1997, and that Kirk had never before
been in Mancillas’ Mercedes.
Mancillas also argues that Kirk is not a
credible witness because Kirk changed his
statement to law enforcement officers
investigating the incident (as described below),
and the district judge erred by relying on his
testimony as grounds for the obstruction of
justice enhancement. Mancillas points out that
during the trial, Kirk testified that after
Mancillas was arrested, Kirk was approached by
law enforcement officers questioning him about
the handgun. At trial, Kirk testified that when
officers first asked him about his Taurus
handgun, he originally stated that the weapon was
stolen from his home. It was only after an agent
made a follow-up telephone call to Kirk that he
told the law enforcement official that he had
loaned the gun to the Defendant Mancillas.
It is clear that the trial judge relied on
Kirk’s testimony that Mancillas borrowed the
Taurus gun from Kirk, and we are unable to
discover any reason that would lead us to a
conclusion that the court committed clear error
when relying upon that testimony. "[W]e do not
second-guess the . . . judge’s credibility
determinations because he or she has had the best
opportunity to observe . . . the subject’s . . .
facial expressions, attitudes, tone of voice, eye
contact, posture and body movements . . . ."
Garcia, 66 F.3d at 856. A district court’s
credibility determination will not be disturbed
unless it is completely without foundation. See
United States v. Ferguson, 35 F.3d 327, 333 (7th
Cir. 1994) (citation omitted). "[T]he trial
judge’s . . . choice of whom to believe is
conclusive on the appellate court unless the
judge credits exceedingly improbable testimony."
United States v. Cardona-Rivera, 904 F.2d 1149,
1152 (7th Cir. 1990). In other words, "[w]e must
accept the [testimony] unless it is contrary to
the laws of nature, or is so inconsistent or
improbable on its face that no reasonable fact-
finder could accept it." Yusuff, 96 F.3d at 986
(citing United States v. Saunders, 973 F.2d 1354,
1359 (7th Cir. 1992)). The court made the
credibility determination as to whether or not to
believe Kirk’s testimony and the sentencing
hearing transcript reveals that the judge
carefully considered and fully explained her
reasoning in her decision to enhance the
sentence. The court noted that during the trial
Kirk had inculpated himself in numerous criminal
narcotics activities; that Kirk had no apparent
motive to fabricate testimony about this issue
because he and Mancillas were friends; that
Kirk’s story was corroborated by Marshall’s
testimony that Mancillas had asked Marshall to
testify that he (Marshall) possessed the gun; and
that Mancillas "had every reason in the world" to
try and avoid the gun charges, because he
understood the potential penalties he was facing
for being a felon in possession of a firearm. We
refuse to second guess the trial judge’s
credibility determination, particularly in light
of such overwhelming corroborative evidence, and
we are confident the court’s credibility judgment
was not clearly erroneous.
Mancillas, still not running out of challenges
to the complete and well-reasoned trial record,
next argues that the court engaged in
impermissible "double counting" by adding the
two-level increase to both Count One and Count
Three for obstruction of justice. The trial
court’s finding on the issue of obstruction "is
a factual one to be reviewed for clear error."
United States v. Friend, 104 F.3d 127, 130 (7th
Cir. 1997) (citing United States v. Hickok, 77
F.3d 992, 1007 (7th Cir. 1996)). Double counting
occurs when the court assesses more than one
enhancement to the offense level for a single
offense based on the same underlying conduct. See
United States v. Haines, 32 F.3d 290, 293 (7th
Cir. 1994) ("double counting occurs when
identical conduct is described in two different
ways so that two different adjustments apply").
However, we have expressly held that "there are
cases where a defendant’s obstructive conduct may
be such that it obstructs or impedes two separate
offenses." United States v. Perez, 50 F.3d 396,
399 (7th Cir. 1995) (citation omitted). Double
counting refers to the impermissible practice of
assessing more than one enhancement to the
offense level for a single offense based on the
same underlying conduct. See Haines, 32 F.3d at
293 (emphasis added). In the instant case, the
court enhanced Mancillas’ sentence on Count One
(felon in possession of a firearm), and on Count
Three (possession of marijuana with intent to
distribute). Our decision in Haines makes clear
that the trial court did not engage in "double
counting" because Mancillas’ obstructionist
conduct was examined to enhance his sentence on
two separate counts; his conduct was not cited as
grounds for two separate enhancements on the same
count. Thus, we hold that the sentencing court
did not err.
B. The Downward Adjustment for Acceptance of
Responsibility.
Finally, Mancillas contends that he was entitled
to a two-level downward departure for acceptance
of responsibility pursuant to USSG sec. 3E1.1
because he admitted, prior to trial, that the
firearm and the marijuana belonged to him.
Section 3E1.1 provides: "If the defendant clearly
demonstrates acceptance of responsibility for his
offense, decrease the offense level by 2 levels."
In order to qualify for a downward adjustment for
acceptance of responsibility, a defendant must:
(1) demonstrate that he clearly recognizes and
affirmatively accepts responsibility for his
conduct; (2) timely notify authorities of his
intentions to enter a plea of guilty; and (3)
truthfully admit the conduct comprising the
offense of conviction and admit, or not falsely
deny or frivolously contest, the relevant conduct
as it relates to the offense of conviction. USSG
sec.3E1.1. If a defendant denies certain criminal
conduct and the court determines it to have
occurred as testified to, "the defendant cannot
then claim that he has accepted responsibility
for his actions." United States v. Akindele, 84
F.3d 948, 957 (7th Cir. 1996). We review the
district court’s factual findings regarding
acceptance of responsibility under the clear
error standard. See United States v. Wilson, 134
F.3d 855, 871 (7th Cir. 1998); United States v.
Wettwattana, 94 F.3d 280, 285 (7th Cir. 1996). We
give great deference to the sentencing judge’s
application of the Sentencing Guidelines. See
USSG sec.3E1.1, cmt. n.5; United States v.
Kirkland, 28 F.3d 49, 50 (7th Cir. 1994).
The district court found that Mancillas engaged
in attempts to persuade two different people to
claim ownership of the Taurus handgun found in
his vehicle. Such conduct is patently
inconsistent with the notion of full and clear
acceptance of responsibility. The defendant
contends that because he admitted prior to trial
to Officer Cook that the Taurus handgun belonged
to him, and that the 420 grams of marijuana found
in the trunk was his, he was entitled to the
reduction. The sentencing judge disagreed and
denied Mancillas’ request, initially finding that
he admitted ownership of the marijuana in a
proffer he made to the government under a letter
of immunity, and because the admission was made
in this protected setting, it did not reduce the
government’s obligation at trial to prove up each
and every element of the case against Mancillas.
Moreover, the court simply found that "these
concessions . . . were not enough . . . to
constitute an acceptance of responsibility."
Mancillas put the government to the time and
expense of a trial, requiring throughout that his
guilt be proven beyond a reasonable doubt, and he
attempted to impede the government’s case all
along the way. This case does not come close to
the level of the "extraordinary" case which
warrants the application of sec. 3E1.1. See
United States v. Keeter, 130 F.3d 297, 299 (7th
Cir. 1997) (adjustments under sec. 3E1.1 apply
only in "extraordinary cases"), cert. denied, 118
S. Ct. 1331 (1998). We are convinced that the
sentencing court correctly determined that a
downward departure for acceptance of
responsibility was not warranted.
The judgment and sentence of the district court
are AFFIRMED.
FOOTNOTES
1 The facts described in this section of the
opinion are extracted from the hearing transcript
of Mancillas’ motion to suppress unless otherwise
noted.
2 At the time, Officer Cook was a nine-year
veteran of the IPD who had been assigned to
"street duty" for all but five months of his
career, during which time he was assigned to
"vice narcotics."
3 At trial, Cook testified that he drew his
weapon "because of the fact that there was a
broadcast of him [the suspect, who later was
proven to be Mancillas] having a gun . . . and
the fact that they were all walking away in
different directions, I did not want to get them
separated, having me in some type of
triangulation if they all did have weapons." In
other words, Cook attested that he drew his
weapon to protect his own safety.
4 The dispatcher actually assigned two officers
other than Cook and Lopossa to respond to the
call. However, both Cook and Lopossa were closer
to the Club than the two assigned officers and
thus volunteered to replace the officers in
responding to the Club to investigate.
5 Cook explained that he had asked the question
three times because "I wanted to know why
somebody wanted to tell me they didn’t have a gun
in a vehicle when I’m looking directly at the
handgun." Cook further testified that he found
these circumstances "very suspicious."
6 Also at this time, other backup officers began
arriving in the Club’s parking lot.
7 Cook testified that during his nine years as
an officer, and particularly his five months of
service in the "vice narcotics" division of the
IPD (which occurred in 1997), he learned to
identify various drugs including marijuana and
cocaine, and he also was taught to identify drug
paraphernalia. Cook stated that officers on the
force "come across several narcotic
investigations where you have to make
apprehension and confiscation of different types
of controlled substances . . .", and that he
himself has made "several" arrests involving the
apprehension and confiscation of marijuana.
8 Indiana law provides that "a person shall not
carry a handgun in any vehicle . . . without a
license issued under this chapter being in his
possession." Ind. Stat. Ann. sec.35-47-2-1.
9 The inventory search was performed pursuant to
IPD regulations.
10 We do not discuss in detail any charges
against Hardman or Marshall because their cases
are not before us on appeal.
11 During the hearing, Mancillas also made an
oral motion to suppress certain statements he
made to Officer Cook; the oral motion is
discussed later in this opinion.
12 The court did not specifically address the
issue of whether the search of the automobile was
justified in order to ensure the officers’
safety.
13 September 12, 1997, was a Friday; the
Defendant’s trial was scheduled to begin three
days later, on Monday, September 15, 1997.
14 The record reveals that on May 29, 1997, the
district court issued an order advising that all
motions contemplated by the Federal Rules of
Criminal Procedure (including motions to suppress
evidence) were to be filed within fifteen days
after the appearance of the Defendant’s attorney.
Mancillas’ attorney appeared on June 4, 1997;
thus Mancillas was required to file his motions
to suppress by June 19, 1997. Because he failed
to raise his Fifth Amendment Miranda arguments to
suppress his statements until three days before
trial, the court ruled that Mancillas failed to
timely notify the government that he intended to
challenge admission of his statements, and in
fact did not challenge admission of his
statements, until well after the court-mandated
deadline and just days before trial.
15 The judge did not explicitly cite any
particular rule or case authority in support of
her decision that the Fifth Amendment argument
was waived.
16 According to Marshall, Mancillas asked him to
deliver five pounds of the marijuana to someone
named "Jamie," and Mancillas also gave one pound
to "Lefty" for his assistance in repackaging the
marijuana.
17 It is quite obvious that Mancillas understood
the consequences of the crime of being a felon in
possession of a firearm as charged in Count One
of the Indictment for he had asked Marshall to
give false testimony regarding ownership of the
gun.
18 The court and parties engaged in a brief
discussion of this issue outside the presence of
the jury wherein the AUSA explained the
hypothetical she intended to propose. After
hearing the entire hypothetical, the court found
that it was permissible and overruled the
Defendant’s objection.
19 Agent Casey explained that in order to use
one-half to three-quarters of a pound of
marijuana before it loses its THC content and
turns "stale," a person would have to smoke
approximately thirty to thirty-five joints per
day. Thus, he concluded that "anything . . .
above a quarter pound personal stash . . . based
on my experience . . . would be for distribution
quantities." We note that the 420 gram package
found in the Defendant’s trunk equates to 14.7
ounces, or nearly one pound.
20 The citizen’s report stated that the car was
yellow while the officers described it as
"greenish."
21 We recognize, as did the officer in DeBerry,
that a gun in one’s waistband can be pulled out
and used in a matter of seconds.
22 We note our agreement with the trial court’s
conclusion, which Mancillas does not specifically
challenge on appeal, that the search was
justified because Mancillas did not resist
turning his car keys over to Officer Cook when
asked to do so, thereby allowing Cook to inspect
the interior of the vehicle. At the suppression
hearing, and again at trial, Officer Cook
testified that he asked Mancillas for the keys to
the locked Mercedes, and that Mancillas gave them
to him. The trial court accepted Officer Cook’s
testimony as true, and the judge’s credibility
assessment is entitled to a great deal of
deference. We do not second-guess the [trial]
judge’s credibility determinations
because he or she has had the best opportunity to
observe the verbal and nonverbal behavior of the
witnesses focusing on the subject’s reactions and
responses to the interrogatories, their facial
expressions, attitudes, tone of voice, eye
contact, posture and body movements, as well as
confused or nervous speech patterns in contrast
with merely looking at the cold pages of an
appellate record.
United States v. Garcia, 66 F.3d 851, 856 (7th
Cir. 1995) (citations and quotations omitted).
As such, we accept the district court’s reliance
on Officer Cook’s testimony and the court’s
subsequent determination that Mancillas
relinquished his car keys so that Officer Cook
could search the Mercedes for weapons and
confiscate the handgun on the dashboard. "[T]he
law is well established that if the officer asks
rather than commands, the person accosted is not
seized, and so the protections of the Fourth
Amendment do not attach." DeBerry, 76 F.3d at
885. The record supports the district court’s
finding that Cook asked rather than commanded and
that Mancillas turned over his keys and thus
consented to the search of his vehicle. Mancillas
presents "nothing to overcome the substantial
deference we afford the district judge." United
States v. Thompson, 106 F.3d 794, 798 (7th Cir.
1997) (quoting United States v. Lomeli, 76 F.3d
146, 149 (7th Cir. 1996)).
23 In Miranda, 384 U.S. at 444, the Supreme Court
held that "the prosecution may not use
statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the
defendant" unless the defendant is given warnings
designed to safeguard his Fifth Amendment rights
against self-incrimination.
24 As noted in the background section of this
opinion, Cook testified at the suppression
hearing that on the night of the arrest in the
parking lot, Mancillas admitted actually owning
the Taurus handgun. At trial, however, that
testimony was not elicited from Cook and thus the
statement was not admitted. Therefore, it is not
challenged on appeal.
25 The trial court found that formal arrest had
not yet occurred until the Defendant admitted he
lacked a permit, and thus was in violation of
Indiana law.
26 Similarly, in Mancillas’ case, approximately
five months after Mancillas was arrested the
district judge issued an order advising the
parties that "all MOTIONS contemplated by the
Federal Rules of Criminal Procedure shall be
filed within 15 days after [the] appearance by
the attorney for the Defendant." The defense
attorney initially appeared on June 5, 1997, thus
motions were due June 20, 1997. As noted,
Mancillas missed the deadline by failing to even
imply that he desired to make Fifth Amendment
objections at any time during pretrial
proceedings and waited until September 12, 1997,
literally the eve of trial, to make a motion to
suppress his oral statements pursuant to Miranda.
27 At some point in his career, Special Agent
Casey also taught a course on street
identification drugs at the Indiana Law
Enforcement Academy.