161 F.3d 19 (10th Cir. 1998), 97-4111, U.S. v. Shayesteh
| Citation | 161 F.3d 19 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Ahmad R. SHAYESTEH, Defendant-Appellant. |
| Case Date | October 06, 1998 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Tenth Circuit |
Page 19
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA10 Rule 36.3 regarding use of unpublished opinions)
98 CJ C.A.R. 5207
Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.
ORDER AND JUDGMENT [*]
BRORBY, J.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Mr. Shayesteh was convicted of two counts of possessing a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The first count involved cocaine and the second methamphetamine. The district court sentenced him to 262 months of incarceration. Mr. Shayesteh appeals, asserting that the district court should have suppressed certain evidence and that it erred in sentencing him and in denying his motion for a new trial. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm the conviction and the sentence.
On May 22, 1995, the Utah Highway Patrol filed an application with a state court for authority to establish and operate an administrative traffic checkpoint. 1 A state magistrate judge granted permission to do so. The order provided the roadblock was for purposes of checking drivers' licenses and registrations, and looking for impaired drivers. The order also provided, in part: "[U]nless the officer making the initial contact ... has reasonable suspicion that criminal activity has occurred ... the officer shall not further detain the vehicle or its occupants nor ask for consensual permission to search the occupants or the vehicle."
The roadblock was set up and operating on a highway in southern Utah on Memorial Day 1995. Northbound vehicles were stopped and then sent on their way if there were no irregularities in their license and registration and if the driver did not appear impaired. If there was a problem, the driver and car were sent off to the right lane, a secondary checkpoint.
Mr. Shayesteh drove up to the checkpoint around five o'clock in the afternoon. He was the sole occupant of his car. Trooper Joe Reynolds asked him for his license and registration. Because Mr. Shayesteh could not find his registration, the trooper directed him into the secondary checkpoint area.
Trooper Reynolds went to his vehicle, ran a registration check, and learned the vehicle was registered to Mr. Shayesteh. The trooper returned Mr. Shayesteh's license to him and told him everything was fine. At that point, Mr. Shayesteh was free to leave. However, he was unable to leave as there were vehicles in front of and behind him. While waiting for a chance to merge Mr. Shayesteh's vehicle back into the traffic lane, Trooper Reynolds carried on a short conversation with him. The trooper engaged in this conversation in order to be friendly.
The trooper asked Mr. Shayesteh where he was going. Mr. Shayesteh said he was going to Salt Lake City for a few days. Because no luggage was visible in the car, the trooper asked Mr. Shayesteh where his luggage was and Mr. Shayesteh responded he did not have any. The trooper then asked what was in the trunk, and Mr. Shayesteh told him the trunk was empty, and volunteered "would you like to look?" Trooper Reynolds replied "sure." Mr. Shayesteh got out of the car and the trooper frisked him and searched the passenger compartment for weapons. Mr. Shayesteh then opened the trunk with his key. Contrary to Mr. Shayesteh's earlier statement, the trunk contained two duffle bags. Mr. Shayesteh said the bags were not his.
The trooper took one of the bags out of the trunk to see if there was anything behind it. A county sheriff's officer was present with a certified drug detection dog, although the dog was not being used at the roadblock site. The dog, a Chesapeake Bay Retriever, sniffed the bag on the ground and alerted. Mr. Shayesteh was then handcuffed, and a search of the bag revealed a large quantity of cocaine and methamphetamine.
Mr. Shayesteh moved to suppress the drugs. The motion was referred to a magistrate judge. The magistrate judge held two hearings on the matter. Mr. Shayesteh testified at one of the hearings. The gist of his testimony was that he did not consent to the search and only did as he was ordered. He denied that the dog alerted. He described the fifty-five pound retriever as a "very tiny, very small dog," no bigger than the officer's foot. He further testified the dog did not react to the bag, but the officer did by picking it up, sniffing it, and stating he smelled marijuana. The magistrate judge issued a Report and Recommendation recommending denial of the motion. The district court adopted the Report and Recommendation in its entirety over Mr. Shayesteh's objection, and denied the motion.
Mr. Shayesteh also testified at trial. He stated a man in Arizona asked him to deliver the bag in which the drugs were found to Utah, and that he had never opened the bag. Mr. Shayesteh further testified that while he was in jail, a trooper came to him with a ziplock baggie and had him touch it, which was how his fingerprints came to be on a baggie of drugs found in the bag. Despite this testimony, the jury found him guilty on both charges.
At sentencing, the district court increased the offense level by two points for obstruction of justice based upon the fact Mr. Shayesteh committed perjury at trial by testifying under oath that he was framed by the officers and at the motion to suppress hearing with his testimony concerning the dog. The sentencing court also failed to grant Mr. Shayesteh's motion for a downward departure for being a minimal participant.
After sentencing, the district court denied Mr. Shayesteh's motion for a new suppression hearing, new trial, and request for an evidentiary hearing.
On appeal, Mr. Shayesteh raises the following issues: (1) the trooper detained him in violation of the roadblock authorization; (2) his consent was tainted by his improper detention; (3) he did not consent to the search, and the dog alert did not provide probable cause for a search; (4) the district court erred in enhancing his sentence for perjury; (5) the district court erred by not considering his motion for sentence reduction because he was a minor participant; (6) the district court should have granted him a new trial due to ineffective assistance of counsel; and (7) the district court should have granted an evidentiary hearing to see if a new trial was warranted by newly discovered evidence.
Motion to suppress issues
In support of his contention that the district court erred in denying his motion to suppress, Mr. Shayesteh makes three arguments. He claims the trooper detained him after returning his license, in violation of the court's order granting authority for the roadblock. He argues his consent to search the car was tainted by the illegal detention. And, he argues the district court erred in finding that he consented to the search and that the dog sniff established probable cause for the search of the bag.
First, Mr. Shayesteh argues the trooper's questioning of him after his license had been returned constituted an illegal detention, rendering the resulting search unlawful. He concedes the roadblock provided a legitimate basis for the initial stop. Therefore, he only complains of the trooper's actions after his driver's license was returned.
The district court adopted the magistrate judge's factual findings. The magistrate judge found:
The officer told the defendant everything was alright and gave the defendant's license back and he took it and placed it in his wallet. Defendant was free to go at that point. However, defendant could not immediately reenter the flow of traffic because there was a vehicle with a boat in front of him and a vehicle behind him. Traffic would not permit his immediate entry into a lane of travel to go on his way.
"When we review an order granting a motion to suppress, we accept the trial court's factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the district court's finding." United States v. Zapata, 997 F.2d 751, 756 (10th Cir.1993) (internal quotation marks and citation omitted). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).
Mr. Shayesteh contends the trooper's actions exceeded the scope of the limitations provided in the roadblock authorization. His arguments on this point hinge on his claim the magistrate judge erred in finding that the trooper's questions did not constitute a detention. The...
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