U.S. v. Wynne

• Decision Date: 18 May 1993
• Docket Number: No. 92-2100,92-2100
• Citation: 993 F.2d 760
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James WYNNE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 760

993 F.2d 760

UNITED STATES of America, Plaintiff-Appellee, v. James WYNNE, Defendant-Appellant.

No. 92-2100.

United States Court of Appeals Tenth Circuit.

May 18, 1993.

Submitted on the Briefs: ^*

Don J. Svet, U.S. Atty., and David N. Williams, Asst. U.S. Atty., Albuquerque, NM, for plaintiff-appellee.

Daniel J. Tallon, Albuquerque, NM, for defendant-appellant.

Before McKAY, Chief Judge, MOORE, and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

James Wynne appeals his conviction, following a jury trial, for possession with intent to distribute more than 100 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). Agent Samuel Candelaria, a detective in the Albuquerque Police Department under assignment to the federal Drug Enforcement Administration Task Force, discovered the methamphetamine during a regular forty-five minute stop of an Amtrak passenger train at the Albuquerque train station. Mr. Wynne was a passenger on the train, and Agent Candelaria was conducting a routine monitoring of the train during its stop. On appeal, Mr. Wynne contends that: (1) the district court erred in denying his motion to suppress statements he made prior to his arrest; (2) he was denied effective assistance of counsel; (3) the government failed to disclose the identity of an alleged informant prior to trial, resulting in a denial of due process; (4) the district court abused its discretion by denying Mr. Wynne's two motions to continue the trial date; and (5) the foregoing, taken together, amounted to cumulative error resulting in a denial of due process, or, in the alternative, his trial was fundamentally unfair. We affirm.

I. BACKGROUND

On the day of the events in question, Mr. Wynne was a passenger on the eastbound Amtrak train from southern California to Kansas City. At its regularly scheduled, forty-five minute stop in Albuquerque, he got off the train carrying a small duffle and walked to a corner of the parking lot with another passenger. From a distance Agent Candelaria observed Mr. Wynne and his fellow passenger smoking what appeared to be a marijuana cigarette. While walking over to speak with Mr. Wynne, Agent Candelaria walked past another passenger, Moshe Ben Amram, and smelled a strong odor of burnt marijuana. He stopped and asked to see Mr. Amram's ticket and identification. These documents were on board the train, so both Mr. Amram and Agent Candelaria reboarded the train and went to Mr. Amram's seat in the coach car. Once there, Agent Candelaria confiscated a small baggie of loose marijuana from Mr. Amram, but did not arrest him. Agent Candelaria exited the train, placed the confiscated marijuana in the trunk of his patrol car, told a border patrol agent on duty at the station about Mr. Amram, who appeared to be a foreign national, and returned to the train.

While Agent Candelaria was occupied with Mr. Amram, Mr. Wynne approached a vending truck which serviced the Amtrak station in Albuquerque during regular stops of passenger trains. The truck was operated by Jean Narro. Mr. Wynne spoke to Ms. Narro and looked over the food she offered for sale before he returned to the train. She noticed that he smelled strongly of marijuana and that he was carrying a duffle. Mr. Wynne remarked to her that he did not need to buy Mr. Wynne reboarded the train's coach car during the time Agent Candelaria was confiscating the baggie of marijuana from Mr. Amram. As he passed Agent Candelaria in the aisle, Mr. Wynne pointed to the baggie of marijuana being confiscated and said, "Let's roll a big one." Agent Candelaria noted where Mr. Wynne was sitting in the coach car, but did not otherwise communicate with him at that time.

candy because he had a lot of candy in his duffle bag.

Agent Candelaria returned to the coach car after storing Mr. Amram's marijuana in his car, and approached Mr. Wynne. He identified himself as a police officer, requested Mr. Wynne's ticket and identification, and asked him about his itinerary. After Agent Candelaria returned the ticket and identification to Mr. Wynne, he asked if Mr. Wynne would voluntarily consent to a search of his luggage. Mr. Wynne stood and retrieved from a luggage rack over his seat first a suitcase and then the duffle he had been carrying. The duffle contained a large bag of candy and a gift wrapped box. Mr. Wynne claimed that the box contained beach sand as a gift for his nephew. Agent Candelaria asked if he would submit the box to a dog "sniff," and Mr. Wynne consented. Agent Candelaria took the box to the baggage storage section in another area of the train and summoned a police dog handler and trained dog who were at the station as part of the regular patrol. Mr. Wynne was left at his seat, alone and under no verbal or physical restraint. The dog alerted to the box.

Agent Candelaria, followed by the border patrol agent who had been talking with Mr. Amram, reapproached Mr. Wynne and told him that the dog had alerted to the box and again asked him what was in the box. Mr. Wynne repeated that it was sand. The agent asked if he would voluntarily consent to open the box, and Wynne refused. He then threw up his arms nervously and said, "Okay. What do we do now? Go ahead and take me to jail."

In response, Agent Candelaria told him that nothing was going to happen to him at that point, that Agent Candelaria would retain the box, seek a search warrant, and if the box did not contain drugs, it would be sent to Mr. Wynne at his destination. The border patrol agent wrote down the address from Mr. Wynne's driver's license, and returned the license to him. Agent Candelaria and the boarder patrol agent departed from the train, leaving Mr. Wynne on the train to continue on his scheduled journey. Thus, at no time was Mr. Wynne under any actual restraint. When the search under warrant revealed methamphetamine, Agent Candelaria contacted the New Mexico Highway Patrol in Raton, New Mexico, and Mr. Wynne was arrested by highway patrol officers during a scheduled stop of the train in Raton.

II. MOTION TO SUPPRESS

In the proceedings below, Mr. Wynne took the position that he did not own and had no connection with the box containing methamphetamine or the duffle bag in which the box was stored. Accordingly, he raised no Fourth Amendment challenge on the question of consent which Agent Candelaria testified Mr. Wynne gave to the search. That matter is the subject of an ineffective assistance of counsel claim, discussed in section III below.

Mr. Wynne did, however, file a motion to suppress based on Fifth Amendment grounds. His contention below, ¹ and here, is that his privilege against compelled self-incrimination guaranteed by the Fifth Amendment was violated when Agent Candelaria asked him questions without first advising him of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This contention rests upon the premise that Agent Candelaria had probable cause to arrest Mr. Wynne, and had formed the subjective intention to do so, either at the point of their first encounter (after the agent had seen Mr. Wynne smoke what the agent believed to be a marijuana cigarette and heard him say "Let's roll a big one"), or after the narcotics dog reacted positively The district court held an evidentiary hearing on the motion to suppress. Agent Candelaria testified for the government and was cross-examined by Wynne's counsel. Counsel for both sides argued their positions, after which the court denied the motion, stating: "He [Wynne] was never arrested. He was never in custody. He did not have to have Miranda warnings. What he said was simply a volunteer statement." R. Vol. II at 73.

                to the box which had been taken from Mr. Wynne's duffle bag.   Mr. Wynne pursues three separate possibilities from this premise:  (1) he was functionally in custody and subjected to custodial interrogation because the agent had probable cause and the subjective intent to arrest Wynne;  (2) he was actually in custody due to the allegedly intimidating nature, accusatory focus, and tone of Agent Candelaria's actions and questions;  or (3) Agent Candelaria, having probable cause to arrest, intentionally delayed arresting Mr. Wynne in order to subject him to intimidating or deceitful interrogation designed to elicit incriminating statements
                

We review the district court's findings of fact under the clearly erroneous standard, but we apply a de novo standard of review to the ultimate question of constitutional law. See United States v. Thody, 978 F.2d 625, 628-29 (10th Cir.1992); United States v. Short, 947 F.2d 1445, 1449 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992). Where a defendant appeals the denial of a motion to suppress, "we review the evidence in the light most favorable to the Government." Short, 947 F.2d at 1449.

We agree with the district court that Wynne's arguments are meritless. Observing Mr. Wynne at a distance smoking what Agent Candelaria believed to be a marijuana cigarette, plus Wynne's purely volunteer statement about rolling a big one, hardly furnished probable cause for arrest. Regardless, whatever "accusatory" or other focus may have existed regarding Mr. Wynne, and whatever Agent Candelaria's "subjective intention" was are irrelevant. ² A person is not placed in the functional equivalent of custody for Miranda purposes simply because that person is the focus of a criminal investigation and is being questioned by authorities. Beckwith v. United States, 425 U.S. 341, 346-48, 96 S.Ct. 1612, 1616-17, 48 L.Ed.2d 1 (1976).

" 'It was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the court to impose the Miranda requirements with regard to custodial questioning.' "

Id. at 346-47, 96 S.Ct. at 1616 (quoting United States v. Caiello, 420 F.2d 471, 473 (2d...