U.S. v. Gwathney

Citation465 F.3d 1133
Decision Date26 September 2006
Docket NumberNo. 05-2165.,05-2165.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles Ellwood GWATHNEY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Laura Fashing, Assistant United States Attorney (David C. Iglesias, United States Attorney, on the briefs), Albuquerque, NM, for Plaintiff-Appellee.

James P. Baiamonte, Albuquerque, NM, for Defendant-Appellant.

Before O'BRIEN, McWILLIAMS and McCONNELL, Circuit Judges.

O'BRIEN, Circuit Judge.

During an inspection of Charles Ellwood Gwathney's commercial truck, Officer James Smid of the New Mexico Motor Transportation Division discovered 152.5 kilograms of marijuana. Gwathney was convicted by a jury of possession of 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(b)(1)(B)(vii). He challenges the district court's denial of his motion to suppress evidence obtained from the search, the admission of certain government evidence, the giving of a "permissive inference" jury instruction, and the district court's denial of his motion for a new trial based on newly discovered evidence. We affirm.

Background:

On May 23, 2004, Gwathney, a commercial truck driver, stopped at the Gallup, New Mexico Port of Entry along Interstate 40 near the Arizona-New Mexico state line to obtain a trip permit through New Mexico for his load of potatoes.1 The truck was owned by Solomon Shaw. Officer Smid asked Gwathney for his driver's license, medical card, tractor and trailer registration, log book and bill of lading, all of which were provided. The bill of lading listed the truck as carrying 833 boxes of red potato creamers, required the truck to be maintained at forty-two degrees and was signed by Gwathney. The log book indicated potatoes had been loaded on the truck in Phoenix on May 21, but that Gwathney did not leave Phoenix until May 23. Although the truck was refrigerated, Officer Smid thought it unusual Gwathney would load the potatoes prior to having his truck repaired because potatoes are perishable goods.2 Officer Smid asked Gwathney why he had taken over a day to leave Phoenix after his truck was loaded. Gwathney explained the delay was caused by repairs he had made to his truck. Gwathney provided Officer Smid an invoice for the repair work. The invoice showed the repair work to have been completed on May 21. It also indicated Gwathney paid almost $14,000 in cash for the repairs.

Officer Smid instructed Gwathney to pull the truck into a bay where he would conduct a level 2 inspection.3 After checking the outside of the truck, Officer Smid instructed Gwathney to unlock the doors to the trailer. Upon opening the doors, Officer Smid discovered one of the pallets had tipped against the wall of the truck during transit. Officer Smid used a ladder to climb over the potatoes to make sure the rest of the pallets were secure and in place. While climbing over the leaning pallet, Officer Smid detected shoe prints and crushed boxes indicating someone had walked on the pallets after they were loaded on the truck. Officer Smid followed the footprints and smashed boxes until he reached an open area in the truck. There, he discovered several large non-conforming brown boxes that had numbers spray-painted on them and were wrapped in brown packing tape. They did not have the word "Potato" on them, and Officer Smid believed them to contain contraband.4 At that point, Officer Smid crawled out of the truck and handcuffed Gwathney for the officer's protection while he continued his search. Upon returning to the boxes, Officer Smid cut them open and discovered what eventually was determined to be 152.2 kilograms of marijuana.5 Officer Smid then arrested Gwathney.

On August 11, 2004, Gwathney was indicted for possession with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). On August 30, 2004, Gwathney filed a motion to suppress the evidence found in the commercial trailer. He argued Officer Smid lacked probable cause to conduct a special safety search. After an evidentiary hearing, the district court denied Gwathney's motion.

Beginning December 15, 2004, Gwathney was tried before a jury. At trial, Gwathney claimed he had no knowledge of the drugs on his truck. He explained the payment of $14,000 in cash for the truck repairs came from money wired to him by Solomon Shaw, who sent the money via Western Union. In rebuttal, the government introduced Exhibit 55 — an administrative subpoena directed toward Western Union requiring the provision of any wire transfer records for Gwathney, or Solomon Shaw from May 13, 2004 through May 23, 2004, coupled with Western Union's response that it could find no such records. Gwathney objected to the admission of the evidence based on the lack of an adequate foundation. The district court allowed admission of Western Union's response based on the business record exception of Rule 803(6) of the Federal Rules of Evidence.

At the close of the case, the district court gave the jury a permissive inference instruction pertaining to Gwathney's knowledge of the marijuana in his truck. Jury Instruction 13 provided:

With respect to the question of whether or not a defendant knew that the controlled substance was present, you may — but are not required to — infer that the driver and sole occupant of the tractor-trailer rig has knowledge of the controlled substance within it. This inference does not relieve the government of its obligation to prove all of the elements of the offense beyond a reasonable doubt.

(R. Supp. Vol. II at 355-56.) On December 16, 2004, the jury convicted Gwathney.

On May 11, 2005, Gwathney filed a motion for a new trial based on newly discovered evidence. The new evidence was a Western Union wire transfer receipt showing a transfer of $921.00 from Solomon Shaw to Gwathney on May 14, 2004, which contradicted Western Union's report attached to Exhibit 55. On May 25, 2005, the district court denied the motion. On May 27, 2005, Gwathney was sentenced to 137 months' imprisonment. He filed a timely notice of appeal on June 1, 2005.

Discussion:

Gwathney challenges the district court's denial of his motion to suppress, the admission of Exhibit 55 into evidence, jury instruction number 13 and the district court's denial of his motion for a new trial. We consider each in turn.

I. Motion to Suppress

We review warrantless searches under the Fourth Amendment for reasonableness. Reasonableness is a question of law we review de novo. United States v. Long, 176 F.3d 1304, 1307 (10th Cir.1999). We accept the district court's factual findings unless clearly erroneous and view the evidence in the light most favorable to the district court's determination. Id.

When warrantless searches of closely regulated industries are at issue, we apply the test articulated by the Supreme Court in New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). See United States v. Johnson, 408 F.3d 1313, 1320 (10th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 458, 163 L.Ed.2d 348 (2005); Vasquez-Castillo, 258 F.3d at 1210. Commercial trucking is a closely regulated industry. United States v. Burch, 153 F.3d 1140, 1141-43 (10th Cir.1998). Thus, under Burger, a warrantless search of a commercial truck satisfies the Fourth Amendment where: (1) there is a substantial government interest underlying a regulatory scheme authorizing the search, (2) the warrantless search is necessary to further the regulatory scheme, and (3) the inspection program provides a constitutionally adequate substitute for a warrant. Burger, 482 U.S. at 701-03, 107 S.Ct. 2636; Vasquez-Castillo, 258 F.3d at 1210.

The search at issue in this case is almost identical to the one we confronted in Vasquez-Castillo. There we examined the level 1 inspection of a commercial truck by the New Mexico Motor Transportation Division at its port of entry along Interstate 40 on the opposite side of the state near San Jon, New Mexico. Vasquez-Castillo, 258 F.3d at 1208-09. That inspection revealed 800 pounds of marijuana concealed in a hidden compartment in the trailer. Id. at 1210. We applied the Burger test to analyze whether the inspection officer's warrantless entry into the truck was justified. Relying on our previous decision in V-1 Oil Co. v. Means, we noted that "`[t]he state clearly has a substantial interest in regulating commercial carriers to protect public safety on the highways.'" Vasquez-Castillo, 258 F.3d at 1211 (quoting Means, 94 F.3d 1420, 1426 (10th Cir. 1996)). Thus, we held New Mexico's "safety inspections of commercial carriers satisfy the first prong of the Burger test." Id. We also held New Mexico's "routine safety inspections [were] necessary to further the regulatory scheme governing commercial carriers," thus satisfying the second prong of the Burger test. Id. Finally, we examined New Mexico's requirement that "all commercial motor vehicle carriers stop at every point of entry" and the authorization to inspect blocking and bracing inside the trailer,6 and held the regulations provided adequate notice to owners of commercial property it would be subject to periodic inspections for specific purposes, limited in time, place and scope. Id. at 1211, 1212 (discussing N.M. Stat. Ann. § 65-5-1). Thus, New Mexico's commercial inspection system satisfied the third Burger prong. Consequently, we upheld the warrantless search of the trailer at issue in Vasquez-Castillo.

The analysis in Vasquez-Castillo largely controls the outcome in this case. As we observed there, New Mexico's regulatory scheme clearly contemplates entrance into the trailer to inspect blocking and bracing, and also allows inspection of the contents of the vehicle. See N.M. Stat. Ann. § 65-5-1(F).7 While in Vasquez-Castillo we held New Mexico's scheme as to the inspection of blocking and bracing satisfied the Burger test for warrantless searches, we specifically reserved the question of...

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