US v. SILVA-ARZETA, 07-5140.

• Decision Date: 27 April 2010
• Docket Number: No. 07-5140.,07-5140.
• Citation: 602 F.3d 1208
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ivan A. SILVA-ARZETA, a/k/a Ivan Selva, a/k/a Tony Arellano Cebrero, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

602 F.3d 1208

UNITED STATES of America, Plaintiff-Appellee, v. Ivan A. SILVA-ARZETA, a/k/a Ivan Selva, a/k/a Tony Arellano Cebrero, Defendant-Appellant.

No. 07-5140.

United States Court of Appeals, Tenth Circuit.

April 27, 2010.

COPYRIGHT MATERIAL OMITTED

William D. Lunn, Tulsa, OK, for Defendant-Appellant.

Leena Alam, Assistant United States Attorney, (David E. O'Meilia, United States Attorney, with her on the brief), Tulsa, OK, for Plaintiff-Appellee.

Before BRISCOE, HOLLOWAY, and HARTZ, Circuit Judges.^*

HARTZ, Circuit Judge.

A jury convicted Ivan Silva-Arzeta of possession of methamphetamine with intent to distribute, see 21 U.S.C. § 841, possession of a firearm in furtherance of a drug-trafficking offense, see 18 U.S.C. § 924(c), and possession of a firearm by an illegal alien, see 18 U.S.C. § 922(g)(5). On appeal he contends (1) that he did not give valid consent to the search of his apartment that yielded drugs and a firearm; (2) that his right to due process was violated when a police officer questioned him in Spanish without using an interpreter; and (3) that he was entitled to discovery regarding alleged evidence tampering between his first trial (which ended in a mistrial) and the trial at which he was convicted. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

Although we will later have occasion to note Mr. Silva-Arzeta's version of some events, we begin by summarizing the evidence in the light most favorable to the district court's ruling on the consent issue. See United States v. Apperson, 441 F.3d 1162, 1184 (10th Cir.2006) (appellate court reviews evidence regarding consent in light most favorable to lower court's ruling). On May 31, 2006, Tulsa Police Officer William Mackenzie was conducting surveillance at an apartment complex as part of a gang-related investigation. He saw a series of persons make brief visits to one of the apartments (not the one that he was there to observe) in a manner he associated with drug sales. He saw Mr. Silva-Arzeta leave the apartment, drive away, and return after a short time, using a key to re-enter. Mr. Silva-Arzeta then left the apartment and drove away a second time. He was not wearing a seatbelt. Mackenzie contacted Officers Joshua Martin and David Brice, who were in a marked police vehicle near the apartment complex. He described the car and asked them to conduct a traffic stop. When Mr. Silva-Arzeta drove past, the officers stopped him. Martin had observed that Mr. Silva-Arzeta was not wearing a seatbelt.

Martin approached Mr. Silva-Arzeta's car and, speaking English, gave the reason for the stop and asked to see Mr. Silva-Arzeta's driver's license and proof of insurance. Mr. Silva-Arzeta answered in English that he had no license. Although Mr. Silva-Arzeta spoke with an accent, Martin had no trouble understanding him. Martin ordered him to exit the car and told him that he was under arrest for driving without a license. Mr. Silva-Arzeta complied with the order, giving no indication that he did not understand. Martin handcuffed him. Brice conducted an inventory search of the car and found a small quantity of methamphetamine in a plastic baggie inside a chewing-gum package. Martin searched Mr. Silva-Arzeta's person incident to his arrest and found $1,038 in cash in one of his pockets.

Mackenzie arrived at the scene as Brice was searching the car. Mackenzie confirmed with Martin, who was standing with Mr. Silva-Arzeta, that the latter spoke English. Mackenzie then asked Mr. Silva-Arzeta whether he was willing to talk. Mr. Silva-Arzeta said, "Yes," R., Vol. III at 10, and Mackenzie gave him a Miranda warning in English. When asked whether he understood, Mr. Silva-Arzeta responded that he did. Mackenzie noted that Mr. Silva-Arzeta's English was accented and thought that he probably spoke Spanish. Mackenzie asked Mr. Silva-Arzeta whether the methamphetamine found by Brice belonged to him; he answered, "Yes." Id., Vol. XIII at 114. But he answered, "No," when Mackenzie asked whether he had any methamphetamine at his apartment. Id. at 114. Mackenzie then asked whether he could search the apartment, and Mr. Silva-Arzeta responded, "Yeah." Id., Vol. III at 11. Mackenzie does not speak Spanish and did not attempt to converse with Mr. Silva-Arzeta in Spanish at any point.

Mackenzie, Martin, and Brice, now joined by an additional officer, took Mr. Silva-Arzeta back to the apartment complex. Mackenzie led him to the apartment that he had seen him enter and leave earlier and asked in English whether it was his. Mr. Silva-Arzeta responded "Yeah," id. at 12, and said that there was no one inside. After knocking, Mackenzie asked whether he could use Mr. Silva-Arzeta's key, which the officers had seized at the traffic stop, to open the door. Mr. Silva-Arzeta again answered affirmatively, and the officers entered, bringing him inside with them. The officers' search yielded two scales, a semiautomatic pistol and ammunition, 261.2 grams of methamphetamine, two packages containing plastic baggies, $4,820 in cash, and false identity documents.

After the search the officers took Mr. Silva-Arzeta to a police substation. Mackenzie contacted Detective Frank Khalil, who had been certified by a local company as a Spanish-language speaker, and asked him to interview Mr. Silva-Arzeta in Spanish. Although Mr. Silva-Arzeta had conversed with the officers in English, Mackenzie thought that he would be more comfortable and provide more useful information if he were interviewed in Spanish. Khalil joined Mr. Silva-Arzeta in a room at the substation and, speaking in English, introduced himself as a Spanish-speaking officer and asked whether Mr. Silva-Arzeta knew why he had been arrested. He answered in English that his arrest had to do with the drugs found in his car and apartment. Khalil then read Mr. Silva-Arzeta a Spanish-language waiver of rights, which Mr. Silva-Arzeta signed. During the following interview both men spoke in Spanish. In response to Khalil's questions, Mr. Silva-Arzeta said that he had been in the United States for about a year and had lived in the apartment for about a month. He said that he had bought methamphetamine for resale twice, both times from a source named Ricardo, and most recently had bought seven or eight ounces for about $400 an ounce. He explained that he resold the methamphetamine in "20s," or half-gram packets. R., Vol. III at 45. Mr. Silva-Arzeta also told Khalil that the money seized from his apartment was from drug sales and that he had bought the handgun at a gun show. Khalil's interview with Mr. Silva-Arzeta was not recorded, nor did Mr. Silva-Arzeta make or sign a written statement.

A superseding indictment charged Mr. Silva-Arzeta with possession of 50 grams or more of methamphetamine with intent to distribute, see 21 U.S.C. § 841; possession of a firearm in furtherance of a drug-trafficking crime, see 18 U.S.C. § 924(c); and possession of a firearm by an alien unlawfully in the United States, see id. §§ 922(g)(5).¹ (The first count was later changed to a reduced charge of possession with intent to distribute 50 grams or more of a mixture containing a detectable amount of methamphetamine.) The first jury to hear Mr. Silva-Arzeta's case failed to reach a verdict on any of the three counts. A second jury convicted him on all three.

II. DISCUSSION

A. Validity of Consent to Search

Before trial Mr. Silva-Arzeta sought to suppress the methamphetamine, firearm, and ammunition found in the apartment. The district court denied the motion after holding an evidentiary hearing. Mr. Silva-Arzeta contends that the court erred in finding that he had validly consented to the apartment search. He complains that his consent was ineffective because he could not understand English and because it was coerced. We are not persuaded.

At the evidentiary hearing, Officers Mackenzie, Martin, and Khalil testified that they had spoken English to Mr. Silva-Arzeta and that he had answered them in English. Mr. Silva-Arzeta denied that he had conversed with any of the officers in English or that he had understood anything that they had said to him in English (save for the word license, which is similar in Spanish). In particular, he said that he did not understand the request to search the apartment. As for his conversation in Spanish with Khalil, he said that he did not recall making various statements that Khalil reported him to have made. And he specifically denied telling Khalil that he had bought methamphetamine for resale, that he had sold "20s" of the drug, that the cash seized at the apartment was drug-sale proceeds, or that he had bought the gun at a gun show. Mr. Silva-Arzeta's former employer, Mark Fairbairn, also testified to Mr. Silva-Arzeta's limited ability to speak and understand English. Fairbairn said that he often communicated with Mr. Silva-Arzeta through a bilingual employee, but conceded that these exchanges were mostly technical ones about the operation of machinery.

The court denied the motion to suppress in a written order. It concluded that Mr. Silva-Arzeta had given the officers valid consent to search the apartment and

specifically found that Silva spoke and understood English well enough to give his consent. ... Silva's claim that a language barrier prevented him from voluntarily consenting is not preclusive where the evidence demonstrates that he had a working knowledge of the English language. A working knowledge exists if the individual has sufficient familiarity with the English language to understand and respond to the officer's questions. Silva's claim that he neither spoke nor understood any English is simply not credible.

R., Vol. I Doc. 22 at 6-7 (citations and internal quotation marks omitted). The court also determined that although Mr. Silva-Arzeta was handcuffed when he was asked for consent to search the apartment, there was no evidence that he was intimidated or harassed in such a way as to...