U.S. v. Navarro

• Decision Date: 08 March 1999
• Docket Number: No. 97-41162,97-41162
• Citation: 169 F.3d 228
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvador Vargas NAVARRO; Samuel Pasqual Edmondson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 228

169 F.3d 228

UNITED STATES of America, Plaintiff-Appellee, v. Salvador Vargas NAVARRO; Samuel Pasqual Edmondson Defendants-Appellants.

No. 97-41162.

United States Court of Appeals Fifth Circuit.

March 8, 1999.

William Reid Wittliff, Dallas, TX, H. S. Garcia, Asst. U.S. Atty., Sherman, TX, Traci Lynne Kenner, Asst. U.S. Atty., Tyler, TX, Terri Lynn Hagan, Plano, TX, for Plaintiff-Appellee.

Gregory A. Waldron, Amy R. Blalock, Tyler, TX, for Navarro.

Thomas Scott Smith, Sherman, TX, for Edmondson.

Appeals from the United States District Court for the Eastern District of Texas.

Before POLITZ, EMILIO M. GARZA and STEWART, Circuit Judges.

POLITZ, Circuit Judge: ^*

Samuel Pasqual Edmondson and Salvador Vargas Navarro appeal their convictions for conspiracy to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and for possession thereof with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. For the reasons assigned, we affirm all convictions and the sentences of Navarro, but vacate and remand for the resentencing of Edmondson.

BACKGROUND

At about 2:00 a.m. on a morning in September 1996, a Sherman, Texas police officer stopped a car for failing to maintain a single lane. Edmondson was driving the car, and Navarro and Guadalupe Plascencia Lopez were passengers. The officer asked Edmondson for his license and proof of insurance. Edmondson, obviously nervous, provided title and proof of insurance, but stated that he did not have a driver's license, giving the officer his Arkansas photo identification instead. Edmondson was instructed to step to the rear of the car and the officer wrote warning citations for his failure to maintain a single lane and for driving without a license.

While writing the warnings, the officer questioned Edmondson about his occupation, the purpose of the trip, and the owner of the vehicle. Conflicting responses aroused the officer's suspicions and he asked Edmondson whether there were drugs in the car. Edmondson stated that there were none and that the officer could look if he wanted. The officer then returned to the car and questioned Navarro and Lopez whose responses conflicted with those of Edmondson. In addition, Navarro repeatedly asserted that he did not speak English although he conversed at length in English with the officer.

The officer then returned to Edmondson, gave him the citations and his documents, asked again whether there were drugs in the car, then asked Edmondson if he would sign a consent to search form. Edmondson first demurred, then appeared to read the form thoroughly, and signed same.

A search of the car revealed methamphetamine in a brown duffle bag on the back seat of the vehicle on which Navarro had been leaning. Edmondson, Navarro, and Lopez were arrested and subsequently released on bond. All three were indicted. Edmondson was returned to jail. Navarro was arrested in Arkansas four months later as the result of a vehicle stop for speeding. Julie Ferguson, Navarro's girlfriend, was driving and Navarro was a passenger. After discovering the outstanding warrant for Navarro's arrest, Navarro and Ferguson were removed from the vehicle and handcuffed. At this time, Ferguson informed the officer about drugs at her house that belonged to Navarro. Ferguson escorted the Arkansas police to her home, which she shared with Navarro, and gave written and verbal consent for a search of the premises which revealed guns, but no drugs. Ferguson directed the officers, however, to a henhouse in the backyard where she advised that Navarro had buried drugs. The officers checked and discovered cocaine and methamphetamine.

Both Navarro and Edmondson unsuccessfully moved to suppress evidence of the drugs obtained during the search of the vehicle. At trial, Ferguson testified about Navarro's drug activities and the government presented the evidence found in Arkansas. The jury found Navarro and Edmondson guilty of both counts.

Defendants were sentenced by video conferencing. The district judge, Chief Judge Richard Schell, was in Beaumont, Texas; the prosecutor and the defendants and their attorneys were in court in Sherman, Texas, approximately 300 miles distant. Navarro consented to the sentencing by video conference; Edmondson objected to same. The judge orally overruled Edmondson's objection, later assigning written reasons. ¹

In the sentencing guidelines computation Navarro received an increase of two levels for possession of firearms during the offense and four levels for his leadership role in the drug scheme. Edmondson was sentenced to life in prison and Navarro was sentenced to 360 months. Both timely appealed.

ANALYSIS

Navarro and Edmondson challenge their convictions on several grounds. Both contend that the district court erred in denying their motions to suppress evidence obtained as a result of the search of the vehicle and bag and that the district court erred in admitting evidence of the drug trafficking discovered in Arkansas. Navarro maintains that the evidence was insufficient to support his convictions. Edmondson contends that the district court improperly determined that certain evidence submitted in camera was not discoverable under Brady v. Maryland. ² He also challenges his sentencing by video conferencing as violative of Rules 32 and 43 of the Federal Rules of Criminal Procedure. Finally, Navarro contends that the district court erred in increasing his base offense level for possession of a firearm and for his leadership role in the offense. ³

I

In reviewing the denial of a motion to suppress, we employ a two-tiered standard, examining the factual findings of the district court for clear error, and its ultimate conclusion as to the constitutionality of the law enforcement actions de novo. ⁴

Navarro maintains that the district court erred in denying his motion to suppress, claiming that Edmondson had neither actual nor apparent authority to consent to the search of his bag. Specifically, Navarro insists that Edmondson's consent to the search of the vehicle did not extend to his bag. ⁵

Edmondson also challenges the denial of the motion to suppress, contending that his continued detention at the vehicle after the officer told him he was free to leave was illegal. Thus, Edmondson maintains that, under Florida v. Royer, ⁶ his subsequent consent to search was tainted by the illegal detention and was invalid. ⁷

A consensual search is a well-settled exception to the search warrant requirement. ⁸ In determining whether a search based upon consent is valid, the government must prove that the search was voluntary and that the defendant consented to the search or consent was obtained from a third party with the ability to give valid consent. ⁹

In determining whether a consent to search is voluntary, we review several factors, no one of which is dispositive. These factors include:

(1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse to consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found. ¹⁰

The district court found that the consent to search was voluntary. Our review of the record persuades that there is no error in this finding.

We then inquire whether, in light of the fact that Edmondson voluntarily consented to the search of the vehicle, his consent cured any earlier ostensibly illegal detention. Under our precedent, a voluntary consent to search cures any error that may have occurred with respect to detention. ¹¹ Thus, assuming for this purpose that Edmondson's continued detention at his car was in fact illegal, under Kelley and Shabazz, this illegality would not taint an otherwise voluntary consensual search.

We also conclude that, as the district court found, Edmondson had the ability to consent to the search of the vehicle. Further, we conclude that, according to the consent form, he gave a general consent to search the entire vehicle, including the luggage contained therein. There is no indication in the instant case, as there was in Jaras, that Edmondson advised that the luggage in the vehicle was not his. Also, unlike Jaras, the bag containing drugs was not located in the trunk, but was in plain view on the back seat of the car. Further, neither Edmondson nor Navarro objected to the officer's search of the bag. Thus, we must conclude and hold that Edmondson's consent included the consent to search the bag found to contain drugs and that the holding in Jaras does not prohibit the officer's search of that bag. We perceive no error in the district court's denial of the motion to suppress.

II

Navarro and Edmondson also contend that the district court erred in admitting evidence of drug trafficking discovered in Arkansas in January 1997. Navarro insists that this evidence was irrelevant and prejudicial because it was outside the scope of the conspiracy alleged in the indictment and thus misled the jury. The indictment alleged that the conspiracy concluded on or about September 24, 1996. Navarro contends that if the government wanted to use the January 1997 Arkansas evidence, it should have obtained a superseding indictment.

Edmondson also contends that the Arkansas evidence was irrelevant because it was outside the scope of the conspiracy. Further, Edmondson maintains that the evidence was admitted improperly under Federal Rule of Evidence 404(b). In this regard, he asserts that the district court erred by not making findings under United States v. Beechum, ¹² and by not giving a limiting instruction. Edmondson contends that these errors require either reversal or remand.

Evidentiary rulings, including those involving 404(b) evidence, are reviewed under an abuse of discretion standard. ¹³ When no...