U.S. v. Vance, 94-10245
| Decision Date | 07 August 1995 |
| Docket Number | No. 94-10245,94-10245 |
| Citation | 62 F.3d 1152 |
| Parties | 95 Cal. Daily Op. Serv. 6229, 95 Daily Journal D.A.R. 10,612 UNITED STATES of America, Plaintiff-Appellee, v. Johnny Mateo VANCE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Howard Trapp, Howard Trapp Inc. (on the briefs), Agana, Guam; and Jan Rubinstein, Agana, Guam (argued), for defendant-appellant.
Karon V. Johnson, Asst. U.S. Atty., Agana, Guam, for plaintiff-appellee.
Appeal from the United States District Court for the District of Guam.
Before: REINHARDT, THOMPSON, and KLEINFELD, Circuit Judges.
Opinion by Judge KLEINFELD.
The most substantial issue in this case is how much proof of acceptance of responsibility a district judge can require as a condition of granting the two level sentencing guidelines adjustment available under Guidelines section 3E1.1. Other sentencing issues and a border search issue are also raised.
Vance appeals his conviction under 21 U.S.C. Sec. 952 for importing methamphetamine into the United States. He argues that evidence gained during the pat-down search conducted by customs officers should have been suppressed, that he should have been awarded a three-point downward adjustment for a timely acceptance of responsibility, and that the district court erroneously denied him the right to allocution at sentencing. We affirm in part and reverse and remand in part.
On October 30, 1993, Vance arrived in Guam on a flight from Honolulu, Hawaii. A customs officer, who met the plane, testified that Vance looked dazed and glassy eyed, and seemed to have difficulty understanding and responding to his questions. He thought that Vance might be on some kind of medication. Also, Vance's Hawaii trip was suspiciously short--an $800 airplane ticket for less than 24 hours on the ground in Hawaii, for what Vance claimed was a vacation. The customs officer asked Vance if he worked for an airline, which would take the expense out of the short vacation trip, but Vance replied that he did not. The customs officer therefore referred Vance for secondary inspection.
The secondary inspection customs officer testified similarly about Vance's glassy eyed appearance, disorientation, and trouble answering questions. He searched Vance's luggage and found his airline tickets, which showed that Vance had been in Hawaii for only one day. The customs officer asked Vance "How was your trip," and Vance replied "three days." The customs officer thought "that didn't seem like a vacation," so he asked Vance if he could pat him down, and Vance said "sure."
During the pat-down search, the customs officer noticed that Vance was wearing two sets of underwear. The officer testified that it was unusual to wear extra underwear "in this climate." The customs officer also discovered that Vance had a suspicious bulge in his crotch area, so he told Vance to drop his trousers and pull down his underwear. Vance complied and two packets of methamphetamine fell out:
Officer: I asked him to just face the wall, put his hands up, pat-down, spread his legs, and then I start from the head, and working my way down to his waist area.
Attorney: What did you find?
Officer: At this time he was up against the wall, facing up against the wall, his legs was about four feet back from the wall, spread, and I was searching within his waist area. I pulled back the waist of his pants, I noticed he was wearing two underwears, so then I just kept that in mind, and since the individual is only wearing shorts, I couldn't do much more, so I just searched within the crotch area, that's when I noticed that he had a bulge down there.
Attorney: And did you investigate what the bulge was?
Officer: I did, I did so.
Attorney: And what was it?
Officer: Then I had the individual turn around and face me, I asked him to drop his pants, so he did so, and then I asked him to drop his underwear, where at that time those two packets of wrapped items fell, fell to the ground.
* * * * * *
Attorney: In your experience, is it unusual for people in the climate of Hawaii to wear two layers of underwear?
Officer: I would believe so, yes.
Vance moved to suppress the packets of methamphetamine that he had had hidden in his underwear. The district court denied the motion. Vance then pleaded guilty, but reserved his right to appeal the denial of his motion to suppress, and to withdraw his plea if we reversed the denial.
Vance argues that evidence known to the customs agents did not rise to a level of suspicion high enough to justify the search. This is incorrect.
Vance was subjected to a border search when he entered Guam. In a border search, a person is subject to search of luggage, contents of pockets, and purse without any suspicion at all. United States v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 3308-09, 87 L.Ed.2d 381 (1985); United States v. Palmer, 575 F.2d 721, 723 (9th Cir.), cert. denied, 439 U.S. 875, 99 S.Ct. 212, 58 L.Ed.2d 189 (1978). For this reason, the inquiries and the search of Vance's luggage, which turned up the airplane tickets for the suspiciously short trip, required no suspicion.
As the search becomes more intrusive, more suspicion is needed. The pat down required that Vance spread-eagle himself against a wall and have a stranger's hands touch his body. In a border search, a pat-down requires "minimal suspicion." United States v. Des Jardins, 747 F.2d 499, 504-05 (9th Cir.1984); United States v. Couch, 688 F.2d 599, 604 (9th Cir.1982). What the customs officers knew, before they patted Vance down, sufficed to establish the necessary "minimal suspicion." Cf. United States v. Taylor, 934 F.2d 218, 221 (9th Cir.1991). They had observed that his trip was too short to make sense, he looked glassy eyed, and he talked and looked like someone on drugs.
Telling a person to drop his trousers and pull down his underwear is more intrusive than a pat-down search. The established standard for a strip search at a border is "real suspicion." Des Jardins, 747 F.2d at 505; Couch, 688 F.2d at 604. When the customs agent told Vance to pull down his pants, the evidence already known to the customs agent gave him the "real suspicion" required to justify that additional intrusion. In addition to the way he looked and talked, and the unusual brevity of his expensive "vacation" trip, the customs officer who told him to pull down his pants had observed that he was wearing two pairs of underwear under his short pants in the tropical climate, and had a suspicious bulge under his pants. Because this evidence was sufficient to justify the search, the district court did not err in denying the motion to suppress.
At sentencing, Vance requested the three level adjustment downward which is available to a defendant who pleads guilty early enough to save the government the time needed to prepare for trial. See U.S.S.G. Sec. 3E1.1(a), (b)(2). The government agreed. But the district judge denied the adjustment on the ground that Vance had taken the case through a suppression hearing, had refused to talk to the probation officer, had refused to assist law enforcement authorities, had not fully admitted his guilt, and had shown insufficient evidence of contrition.
We reverse the denial of the adjustment. Vance's plea of guilty and admission of the elements of his offense were "significant evidence of acceptance of responsibility." U.S.S.G. Sec. 3E1.1, Application Note 3. A defendant who pleads guilty is not entitled to the adjustment for acceptance of responsibility "as a matter of right," "great deference" is accorded to a district judge's determination, and we review for clear error the district court's determination that a defendant did not establish acceptance of responsibility. United States v. McKinney, 15 F.3d 849, 852 (9th Cir.1994). Nevertheless we are compelled to find that the district court clearly erred in this case, United States v. Rutledge, 28 F.3d 998, 1000 (9th Cir.1994), because of the absence of significant evidence that Vance did not accept responsibility.
Vance's attorney said that he had told Vance not to talk with the probation officer about the crime, and to admit the offense conduct only in court. The attorney gave Vance this advice because he was concerned that if he prevailed on appeal on the suppression issue, the bar to later use of the admissions made in open court provided by Federal Rule of Criminal Procedure 11(e)(6)(C), would not apply to admissions made to the probation officer. The probation officer reported that Vance's attorney said he would not let Vance discuss the offense conduct, but when the probation officer asked Vance how he felt about it, Vance "related that he is sorry and that he will never do it again." The district court took Vance's failure to speak with the probation officer into account when deciding whether or not to adjust the sentence for acceptance of responsibility.
We have held that the district court cannot consider the defendant's refusal to discuss the offense with the probation officer as evidence weighing against acceptance of responsibility. United States v. LaPierre, 998 F.2d 1460, 1468 (9th Cir.1993); United States v. Watt, 910 F.2d 587, 592 (9th Cir.1990). A defendant's refusal to discuss the offense conduct with the probation officer may reduce the amount of evidence supporting the defendant's claim of acceptance, but that is not the same thing as treating the refusal as a factor weighing against him. In this case the judge thought counsel's advice to Vance not to speak to the probation officer for fear that the information might come out later, was erroneous. The judge thought disclosures to the probation officer might be suppressed under Federal Rule of Criminal Procedure 32, so he weighed the refusal against Vance. That is impermissible under...
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