U.S. v. Mendoza

• Decision Date: 15 November 2006
• Docket Number: No. 05-4299.,05-4299.
• Citation: 468 F.3d 1256
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nicholas MENDOZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

468 F.3d 1256

UNITED STATES of America, Plaintiff-Appellee, v. Nicholas MENDOZA, Defendant-Appellant.

No. 05-4299.

United States Court of Appeals, Tenth Circuit.

November 15, 2006.

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D. Bruce Oliver, D. Bruce Oliver, L.L.C., Salt Lake City, UT, for Defendant-Appellant.

Karin M. Fojtik, Assistant United States Attorney (Stephen J. Sorenson, United States Attorney, with her on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Before KELLY, BEAM,^* and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Nicolas Mendoza was indicted in the United States District Court for the District of Utah on a charge of possession of methamphetamine with intent to distribute, see 28 U.S.C. § 841(a)(1). He pleaded guilty to the charge but reserved his right to appeal the denial of his motion to suppress the evidence seized from his motor vehicle. On appeal he challenges that denial and also contends that the district judge should have disqualified himself from the case, that the government breached its plea agreement by instituting civil forfeiture proceedings against his vehicle, and that he is entitled to a reduction in his sentence as a mere "minor participant" in a larger drug scheme. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

Viewing the evidence at the suppression hearing in the light most favorable to the district court's ruling, see United States v. Lopez, 437 F.3d 1059, 1062 (10th Cir.2006), we summarize the pertinent events as follows: On January 8, 2005, Utah State Police trooper Nick Bowles observed two recent-model SUVs that appeared to be traveling in tandem, about one car-length apart, on Utah Highway SR-191 near Moab, Utah. One had a Minnesota license plate; the other, an Arizona plate. The sole occupant of each vehicle was a young male. Bowles's experience suggested that the drivers were possibly involved in drug trafficking or auto theft. When he made a u-turn to follow the vehicles, they promptly pulled into a service station. He continued on but then stopped by the side of the road to await their approach. They passed him again, and he resumed following them. When Mr. Mendoza's vehicle, a 2000 Ford Excursion, failed to stop at a stop sign, Bowles pulled him over. A Moab police officer, who had been contacted by Bowles, stopped the other vehicle for following too closely.

As Mr. Mendoza rolled down his car window, Bowles noticed a strong odor of air freshener and observed two unusually placed air fresheners—one near an air vent and one attached to a seatbelt hold in the backseat. Bowles asked for driver and vehicle information. Mr. Mendoza provided his Minnesota driver's license and, while looking through the glove box, said that the vehicle belonged to a friend. When he found the title, he presented it, his hands trembling, to Bowles. The title was in Mr. Mendoza's name. He then said that he was buying it from a friend. Asked when he bought the vehicle, he responded that the purchase was on December 10 or 11, although the date on the title was December 20. He said that he had paid $12,000, which seemed low to Bowles. Later Mr. Mendoza said that he had purchased the vehicle from "a Mexican" whose name he could not remember. R. Vol. II at 264.

During this time Bowles had radioed the dispatcher for confirmation of the validity of the license and title. While Bowles awaited a response, Mr. Mendoza volunteered that he was returning from visiting his father in California. He claimed to have traveled east to Flagstaff and then north through Utah, a route that made no sense to Bowles because it entailed unnecessary travel in the Rocky Mountains during the winter. Mr. Mendoza denied that he was traveling with anyone else. After Bowles was informed that the driver's license was valid and the vehicle was not stolen, he told Mr. Mendoza that he was free to leave. Bowles then asked a few more questions, which Mr. Mendoza answered. But when Bowles requested permission to search the car, Mr. Mendoza refused.

At that point Bowles informed Mr. Mendoza that he was not free to leave and that he was being detained until a dog could arrive to inspect the vehicle. The nearest handler was in Monticello, about 50 miles away. Bowles promptly called for a dog and conveyed the urgency of the situation to the handler. The dog and handler arrived 40 minutes later. The dog alerted to the rear door on the driver's side of the Excursion, near the gas tank. Bowles then searched the car, finding methamphetamine in the gas tank. He arrested Mr. Mendoza, who was indicted in federal court on January 26, 2005.

In March 2005 Mr. Mendoza filed a motion to suppress the evidence found by Trooper Bowles. The motion was denied. In July Mr. Mendoza agreed to plead guilty to possession of methamphetamine with intent to distribute, but he reserved his right to appeal the denial of his suppression motion. On September 14 he brought a motion to disqualify Judge Cassell, claiming an appearance of impropriety on the part of the judge because of the judge's referral of Mr. Mendoza's attorney to disciplinary authorities three weeks earlier. The motion was denied.

Meanwhile, on September 12 the government had filed a motion for criminal forfeiture of Mr. Mendoza's 2000 Ford Excursion. At a hearing on October 19 Mr. Mendoza's attorney contended that forfeiture would be a breach of the plea agreement, which made no mention of forfeiture. The government responded that the absence of any reference to forfeiture in the agreement left the government free to pursue forfeiture and that if the agreement prohibited a forfeiture, Mr. Mendoza's sole remedy would be to withdraw his plea. It also noted that earlier in the day it had filed a civil forfeiture action, which had been assigned to another judge. Mr. Mendoza's attorney reiterated his objection to the forfeiture but rejected the notion of withdrawing the plea. Judge Cassell asked whether it would be a "major inconvenience" for the government to rely on the civil proceeding. R. Vol. II at 359. When the government answered that it would not, Judge Cassell pronounced that "there is no forfeiture of the vehicle in this case." Id. at 360. Mr. Mendoza protested that civil forfeiture would also breach the agreement. But he rejected Judge Cassell's suggestion that the civil-forfeiture case be consolidated with the criminal case. Because that case was pending before another judge, Judge Cassell issued no ruling on the civil forfeiture, nor was he asked to.

At sentencing in November 2005 Mr. Mendoza argued that he was merely a "minor participant" in the drug offense and was therefore entitled to a reduction in his offense level under the United States Sentencing Guidelines (USSG). The district court rejected the argument and sentenced him to 168 months in prison.

II. DISCUSSION

A. Suppression of Evidence

Mr. Mendoza argues that the evidence against him should have been suppressed by the district court because it was recovered in violation of the Fourth Amendment's protections against unreasonable searches and seizures. He further contends that Bowles was obligated under state law to obtain a telephonic warrant while he waited for the dog to arrive. We review de novo the district court's legal conclusions and its ultimate holding of reasonableness under the Fourth Amendment, but we accept the district court's findings of fact unless clearly erroneous. See United States v. Caro, 248 F.3d 1240, 1243 (10th Cir.2001).

The state-law claim can be disposed of summarily.

[I]n federal prosecutions the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by Federal law even though the police actions are those of state police officers. . . . Therefore, the fact that the arrest, search, or seizure may have violated state law is irrelevant as long as the standards developed under the Federal Constitution were not offended.

United States v. Le, 173 F.3d 1258, 1264-65 (10th Cir.1999) (internal quotation marks, citations, and brackets omitted); see United States v. Bach, 310 F.3d 1063, 1066 (8th Cir.2002) ("[F]ederal courts in a federal prosecution do not suppress evidence that is seized by state officers in violation of state law, so long as the search complied with the Fourth Amendment.").

Mr. Mendoza's arguments under the Fourth Amendment also fail. We begin by stating what we need not resolve. Although at oral argument before this court Mr. Mendoza challenged the existence of reasonable suspicion for his detention until the dog arrived, he did not adequately raise this argument in his brief in chief. Two portions of his brief are relevant: Point I, entitled "The Government Must Show That a Warrant Was Not Practical While Awaiting 40 Minutes For a K-9 Drug Dog To Arrive," Aplt. Br. at 34, and Point III, entitled "The Trooper's Conduct was Exploitative of the Stop and the Detention was Unlawful," id. at 44. (Point II discusses his state-law argument, and Points IV, V, and VI do not address search-and-seizure matters.) On the second page of the four-page discussion under Point I, the brief states, "Defendant believes that Trooper Bowles lacked probable cause to detain Mr. Mendoza for 40 minutes." Id. at 35. There is no assertion that reasonable suspicion was lacking. As for Point III, although its thrust is uncertain, its focus appears to be that the search was an exploitation of the unlawful detention. The section concludes: "[Trooper Bowles] exploited the stop in order to detain Mendoza longer in order to search his vehicle `whether he liked it or not.'" Id. at 47-48. We can find no argument in Point III challenging the existence of reasonable suspicion. Perhaps one might discern such an argument in the reply brief. But that is too late to raise an appellate issue. See United States v. Murray, 82 F.3d 361, 363 n. 3 (10th Cir.1996). And even if it were not too late, the reply brief is far from clear; it says:

In...