396 F.3d 935 (8th Cir. 2005), 03-3364, United States v. Bustos-Torres

Docket Nº:03-3364, 03-3365.
Citation:396 F.3d 935
Party Name:UNITED STATES of America, Plaintiff/Appellee, v. Jaime Eleazar BUSTOS-TORRES, Defendant/Appellant. United States of America, Plaintiff/Appellee, v. Armando Magallan-Alfaro, Defendant/Appellant.
Case Date:February 02, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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396 F.3d 935 (8th Cir. 2005)

UNITED STATES of America, Plaintiff/Appellee,

v.

Jaime Eleazar BUSTOS-TORRES, Defendant/Appellant.

United States of America, Plaintiff/Appellee,

v.

Armando Magallan-Alfaro, Defendant/Appellant.

Nos. 03-3364, 03-3365.

United States Court of Appeals, Eighth Circuit

February 2, 2005

Submitted: May 13, 2004

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Arthur R. Martinez, argued, Minneapolis, MN, for appellant in 03-3364.

William G. Selman, III, argued, Minneapolis, MN, for appellant in 03-3365.

James E. Lackner, argued, Assistant U.S. Attorney, Minneapolis, MN (Thomas B. Heffelfinger, on the brief), for appellee.

Before WOLLMAN, HAMILTON, 1 and BYE, Circuit Judges.

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BYE, Circuit Judge.

A jury convicted Jaime Eleazar Bustos-Torres and Armando Magallan-Alfaro of one count of conspiracy to distribute and possess with intent to distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b) (1) (A), and one count of aiding and abetting possession with intent to distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a) (1) and 18 U.S.C. § 2.

On appeal, each defendant challenges the legality of the vehicle stop leading to their arrest and appeals the district court's 2 denial of their motion to suppress the fruits of the allegedly illegal stop. Mr. Alfaro also argues the district court erred when it granted Mr. Torres's motion to be absent from the trial, admitted testimony to the effect Mr. Alfaro asked the witness to sell drugs, denied Mr. Alfaro's motion for judgment of acquittal based on insufficiency of the evidence, made extraneous comments prejudicial to his defense, and refused to give him a minor-role reduction.

The legality of the initial stop and subsequent seizure of $10,000 from Mr. Alfaro's pockets represents a close issue in this case. After carefully examining the arguments and facts, we affirm on all grounds.

I

In 2002, Ramsey County (Minnesota) Deputy Sheriff Eric Bradt was a seven-year veteran in the special-investigations unit. As such, he had received training in narcotics recognition, detection, and enforcement.

A. Déjà Vu

On October 16, 2002, Deputy Bradt sat in an unmarked vehicle in the parking lot of Awada's Lounge in West St. Paul, Minnesota. He was conducting surveillance to execute an arrest warrant on a dangerous fugitive in an unrelated case. Though Deputy Bradt was not personally familiar with Awada's, he knew other officers considered it to be in an area of high drug traffic. Shortly after five in the afternoon, as evening invaded the city, two separate scenes unfolded while he waited for his suspect.

First, a vehicle occupied by two Hispanic males pulled into a nearby parking space. The driver emerged and made his way along one side of the establishment. From around a corner, a stocky Hispanic male in a white cap, later identified as Antonio Thelen, appeared and met briefly with the driver. As the driver and Mr. Thelen conversed in front of the vehicle, Deputy Bradt observed the driver hand Mr. Thelen money in exchange for a plastic "baggie." Deputy Bradt could discern neither the amount of the money nor the contents of the baggie, but he was certain, based on his knowledge and experience, he had just witnessed a narcotics transaction. Because he was on surveillance, however, he did not interfere with the transaction, but rather observed Mr. Thelen disappear behind a corner toward Awada's door and the vehicle drive off into the night.

In the few minutes that followed, Deputy Bradt received information that the fugitive would not be appearing in the vicinity of Awada's. As Deputy Bradt then terminated the surveillance, he observed a maroon Chevrolet Lumina occupied by three Hispanic males enter the parking lot. Mr. Thelen reappeared from behind the

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corner and approached the vehicle. This time, however, he joined the three men inside the vehicle, so that Deputy Bradt could not discern what transpired between them. Within a few minutes, Mr. Thelen reemerged and returned to Awada's, and the vehicle again drove off into the streets. No longer committed by the surveillance and suspecting another drug buy had taken place, Deputy Bradt followed the Lumina out of the parking lot and called for backup.

B. The Stop and Search

Backup joined Deputy Bradt within a mile of Awada's, and the officers made an investigatory stop of the Lumina. Mr. Torres was the driver, Mr. Alfaro occupied the front passenger's seat, and Jesus Sanchez sat in the back. The officers asked the three men to come out of the car, conducted a pat-down search for weapons, and discovered $10,000 in Mr. Alfaro's pockets. All three suspects were then arrested. 3 With the assistance of Sergeant Craig Palmer, Sergeant Robert Pavlak conducted the pat-down search of Mr. Alfaro.

While conducting an inventory search of the Lumina, the officers discovered a substance appearing to be cocaine in a film container on the front passenger's door panel. During booking, officers also found, in Mr. Alfaro's possession, a key and a receipt for room 320 of the Extended Stay America Hotel in Woodbury, Minnesota. Deputy Bradt called the hotel and confirmed Mr. Alfaro was a registered guest. Sergeant Roland Martinez then spoke with Mr. Alfaro in Spanish and received his consent to search the room.

The search of room 320 resulted in the seizure of a black gym bag containing Mr. Torres's identification, a pair of pants in Mr. Torres's size, large amounts of cash, 4 and twelve pounds of methamphetamine wrapped in cellophane packages. Officers also discovered latent fingerprints on the drug packaging. One of these fingerprints matched Mr. Torres's.

The officers also discovered a zip-lock bag of cocaine hidden behind a dresser, drug notes including a notation of $10,000, and a money-transfer receipt belonging to Mr. Alfaro.

C. Unusual Pre-Trial and Trial Occurrences

Mr. Torres sought to enter a conditional guilty plea preserving the right to appeal the denial of his pretrial motion to suppress. Pressing for an unconditional plea, the government decided to try the case. Mr. Torres then preferred to stay in his prison cell and entered a pretrial motion to be absent from the trial. The district court granted the motion and directed from the bench that Mr. Torres receive a three-level reduction for acceptance of responsibility pursuant to § 3E1.1 of the United States Sentencing Guidelines (U.S.S.G.).

Pursuant to Federal Rule of Evidence 404(b), the government made a pretrial motion to admit the testimony of Ramon Villanueva as evidence of Mr. Alfaro's prior

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involvement in the drug trade. The district court denied the motion without prejudice. At trial, the government made an offer of proof by putting Mr. Villanueva on the stand outside the jury's presence. The court then permitted Mr. Villanueva to testify about a conversation in which the defendants had hinted to him he could sell drugs for them.

As he was dismissing the jury for deliberations, the district court explained:

Now members of the Jury, as you go to deliberations, the instructions that have just been read to you will be provided to you along with the original verdict forms, along with the indictment in the case. We will inventory the exhibits, and the exhibits will be provided to you except for the actual drugs that are involved in the matter. The drugs are available for your examination, if you actually desire to do so, but we would request that you make a special [sic] for that and we would actually do the examination here in the courtroom. There are several reasons for that, but one that leads them all, is frankly, they don't smell very well in a small room. But you will have the rest of the exhibits momentarily.

Trial Transcript at 469 (emphasis added).

D. Mr. Alfaro's Testimony

Mr. Alfaro testified as follows regarding his presence outside Awada's on the evening of the arrest. He drove to Minnesota alone (apparently from California) to buy two pick-up trucks; Mr. Torres, a friend from California, was to join him later. Mr. Alfaro first stayed at another hotel for a week and then moved to the Extended Stay in Woodbury. When Mr. Torres first arrived in Minnesota, he carried his belongings in a small gym bag. About two days later, Mr. Torres brought to the hotel room the...

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