U.S. v. Pena

Decision Date04 December 1990
Docket NumberNo. 88-2883,88-2883
Citation920 F.2d 1509
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Crescenciano M. PENA, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Richard A. Stacy, U.S. Atty., and David A. Kubichek, Asst. U.S. Atty., Casper, Wyo., for plaintiff-appellee.

Michael G. Katz, Federal Public Defender, and Frances Smylie Brown, Asst. Federal Public Defender, Denver, Colo., for defendant-appellant.

Crescenciano M. Pena, pro se.

Before BALDOCK and EBEL, Circuit Judges, and CONWAY, * District Judge.

CONWAY, District Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.Civ.P. 34(a); 10th Cir.R. 34.1.9. Therefore, the case is ordered submitted without oral argument.

Defendant-Appellant Crescenciano M. Pena was convicted by a jury of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and Sec. 841(b)(1)(A)(ii). The district court sentenced Pena to the mandatory minimum sentence of imprisonment for not less than twenty years, followed by supervised release of ten years. He now appeals his conviction and sentence, contending that:

1. his detention following the initial stop for speeding was unreasonable, in violation of the Fourth Amendment, and tainted his consent to search;

2. the search of his automobile exceeded the scope of his consent;

3. certain statements made prior to his arrest and before he received the Miranda warnings were the result of custodial interrogation and should have been suppressed;

4. the district court erred in failing to dismiss the Indictment for violation of the Speedy Trial Act;

5. the sentence violates the Eighth Amendment prohibition against cruel and unusual punishment; and

6. he was denied effective assistance of counsel, in violation of the Sixth Amendment.

We affirm.


On April 15, 1988, eastbound on I-80 in Uinta County, Wyoming, Highway Patrolman Leonard DeClercq stopped an older model Pontiac Grand Prix with California plates for exceeding the posted sixty-five miles per hour speed limit. DeClercq's radar indicated that the vehicle was traveling seventy-one miles per hour. Before approaching the Pontiac, DeClercq radioed Dispatch for a registration and warrant check through the National Crime Information Center (NCIC) computer. He also noticed that the trunk lock on the vehicle had been punched out, raising some suspicion in his mind as to whether the car was stolen.

As DeClercq approached the Pontiac, the driver, who was the only occupant of the automobile, got out and met the officer. As requested by the patrolman in English, he gave DeClercq a driver's license, which was issued by Illinois and identified him as Crescenciano Pena of Chicago. He was unable, however, to provide the vehicle's registration. Upon questioning Pena told DeClercq that he presently lived in Santa Barbara, California. He informed the officer that the vehicle belonged to his brother and that he was driving to Chicago to visit his sick mother. He also showed DeClercq a receipt for work recently done on the car, explaining that the car was not running correctly, so he could not have been speeding.

DeClercq returned to his patrol car to receive the results of the NCIC request and to write the speeding citation. The dispatcher informed him that California reported the registered owner of the Pontiac as Yolanda Diaz of Santa Barbara. The NCIC computer was "down," however, delaying results of the inquiry as to whether the vehicle was reported stolen. It was later determined that the vehicle was not so reported.

DeClercq returned to the rear of the Pontiac, his suspicions heightened as to the status of the automobile, to further question Pena about its ownership. Pena repeated that the car was owned by his brother. When asked again as to his destination, Pena told DeClercq that he was on his way to Ohio. DeClercq inquired whether Pena knew Yolanda Diaz. Pena said no. When informed that the car was registered in Diaz's name and asked if he had her permission to drive it, Pena shrugged his shoulders.

DeClercq asked Pena if he knew what was in the trunk of the car, as knowledge of the contents would be some evidence of rightful possession. Pena told him that there was nothing there and asked the patrolman if he wanted to look. DeClercq indicated that he did want to take a look and Pena got a screwdriver from the passenger compartment of the car and opened the trunk. As Pena had indicated, there was not much in the trunk, a spare tire and jack, a blue blanket, a container for antifreeze, and a couple cans of oil. After inspecting the trunk DeClercq told Pena that he could close it. Pena then got in the driver's seat to return the screwdriver.

Patrolman DeClercq walked up to the passenger side of the front seat. Pena reached across to unlock the door and DeClercq opened it and asked to look inside the car. Pena indicated that he did not mind and got out of the vehicle, going to stand at the rear of the auto on the passenger side. DeClercq asked him if he had any narcotics or firearms in the vehicle, to which Pena said no. Noticing that the rear bottom seat cushion was ajar, DeClercq also got Pena's consent to remove a blue suitcase that was lying on it.

Entering the rear seating area, DeClercq looked under the seat and found nothing. He did observe, however, loose, crooked, and missing screws on the interior molding and tool marks on the screws and molding. While DeClercq was in the vehicle, Pena took the blue suitcase to the back of the car, put it up on the trunk lid, and opened it, all without any request by the officer that he do so.

On exiting the car DeClercq tapped the outer rear fender on the passenger side and heard a solid thud. Believing that this area should normally be hollow, the officer probed the vent opening in the rear quarter panel where the passenger door closed with a pen and struck a solid object which moved when he applied pressure to it. While this was occurring, Pena walked approximately fifteen feet away from the car and paid no attention to the officer. The officer got a screwdriver from the patrol car, returned to Pena's vehicle, and removed the rear quarter panel vent and a piece of cardboard under it. Concealed within that opening he saw four or five white boxes.

DeClercq called Pena back to the Pontiac and asked him what was inside the boxes and where they had come from. Pena responded that he didn't know. At that point DeClercq arrested Pena. Shortly afterward, several backup officers arrived at the scene. One officer performed a field test on a sample of the substance from the boxes, getting a positive response for cocaine. As DeClercq attempted to advise Pena of his Miranda rights, Pena said, that "some guy" had given him the car to drive. DeClercq advised him not to make any statements and again attempted to advise him of his rights. Pena then said that he didn't speak English very well. A later search of the automobile, pursuant to a warrant, discovered more than nineteen kilograms of cocaine.


As a preliminary matter we address Appellant's assertion that he cannot communicate in English. At the suppression hearing Pena denied any understanding of English. He used the services of an interpreter at all proceedings. In the Pro Se Supplementary Brief to Initial Appeals [sic] Brief Filed on May 26th.1989 [sic], which was allowed by this panel in its order of April 25, 1990, Pena contends that DeClercq's statement that he answered, "No, not at all," to the patrolman's request to search the vehicle is so suspect that it casts doubt on the validity of all of DeClercq's testimony. This phrase was quoted in the trial court's Order Denying Motion to Suppress Evidence at 4 and the Brief of Appellee at 4.

Pena maintains that the phrase "No, not at all" is an inherently inappropriate response from one without knowledge of English grammar or the ability to speak English fluently. He describes it as being an "upper-class British idiom in keeping only with someone raised in the U.K." and "used only by one fully articulate in the language and having a fluent command of the tongue." Pro Se Supplementary Brief at 2.

Appellant's reliance on the phrase "No, not at all," whatever its idiomatic origins, is misguided. A review of the record reveals that Patrolman DeClercq never used that phrase himself. It was posed at the trial in the form of a question by the prosecutor, who asked DeClercq:

Q. And then you asked him if he minded if you could look--if he minded if you looked in the interior of the vehicle?

A. Yes.

Q. How did he respond to that?

A. He responded no, that he didn't mind if I looked inside the vehicle.

* * *

Q. ... So you asked him if you could look in the inside of his vehicle and he says "No, not at all"? [sic]

A. Correct.

Record, vol. IV, at 259-60. At the suppression hearing DeClercq responded to the questioning of the prosecutor:

Q. Did you converse with the defendant at that point?

A. Yes I asked him if he minded if I took--I asked him if he would mind if I looked inside the vehicle.

Q. And exactly how did he respond to that?

A. He responded, "No," he didn't mind.

Q. He said, "No, I don't mind"? [sic]

A. No. He just said, "No."

Record, vol. II, at 22.

DeClercq testified repeatedly at both the suppression hearing and the trial that Pena spoke understandable, if broken, English and that his responses were contextually appropriate under the circumstances. This testimony was corroborated by other government witnesses. There was also evidence that Pena had lived in the United States for the previous thirty-one years and attended an elementary education course conducted in English while incarcerated in a federal penitentiary.

The district court found that Pena clearly and unequivocally consented to the search of his vehicle. The court did so even...

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