United States v. Juan Carlos Vera

831 Bush, v. United States officer could be- objectively reasonable (8th Cir.2003). consent that Medina-Constantino’s lieve machine pinball to opening extended Lopez-Vargas indicates that The record to the State the car had been towed after pro- was transporting was aware that he headquarters. Patrol conspiracy, he ceeds from a narcotics that prior in trips had involved in several been that the district Lopez-Vargas argues he conspiracy, of and that furtherance (1) Medina- ignored several facts: to travel enough was trusted across difficulty communicating in Constantino’s $12,000 Accordingly, in country with cash. (2) marijuana cigarette English, in we conclude that the district court did (3) of Mi- in the lack found in clearly finding Lopez-Vargas err given until after Medina- warnings randa entitled to a minor role reduction. was not (4) arrested, Medina- Constantino Zuleta, United States v. F.3d Cf. with law experience lack of Constantino’s (8th Cir.2005) curium) (affirming (per (5) enforcement, and his lack of awareness de- denial of minor role reduction because larger investigation. federal While on more fendant served as a courier to a determi- might these facts be relevant occasion). than one Medina- nation of the voluntariness of consent, Lopez-Vargas Constantino’s judgment affirmed. is above, conceded, voluntary as noted Moreover, given.

consent search any significant

none of these facts have determining scope of the

relevance in conclude that Accordingly, we

consent. commit clear court did not the district America, STATES UNITED error Medina-Constantino Appellant, to a of the voluntarily consented search limitation. Mercury without v. VERA, Appellee. Juan Carlos

III. No. 05-3495. for dear error We review Appeals, States Court United whether district court’s determination Eighth Circuit. is to a minor defendant entitled particular under Section participant role reduction 14, 2006. Submitted: March Sentencing of the United States 3B1.2 Aug. Filed: Bueno, Guidelines. United States Rehearing En Banc Rehearing and (8th Cir.2006). Lopez- F.3d Sept. Denied prove that he Vargas the burden carries a reduction. entitled is

Johnson, Cir. is in which the defendant cases conspiracy, participants

one of several rela culpability that his

he must show

tively compared that of the other minor deeply and that he was

participants the offense. See id. at 1018-

involved that he testified asked Svoboda, Atty., ar- Maddux U.S. Nancy Asst. A. Nebraska, having mind a seat Omaha, appellant. Juan if he would for gued, car while Maddux looked at Vanderslice, Public Asst. Fed. C. John “yeah,” license, responded Nebraska, Lincoln, Defender, argued, passen- in that then sat the front and Vera appellee. patrol the ear while Maddux ger seat of COLLOTON, HEANEY, and Before inquired in the seat. Maddux sat driver’s GRUENDER, Judges. Circuit Vera the nature of Vera’s travels. about in he had been Omaha visit- indicated that COLLOTON, Judge. Circuit uncle, and that and his with an he ing for con- was indicted Carlos Vera Juan to returning California. Mad- father were with in- possess to and spiracy distribute why parked on the dux asked Vera was of 21 in violation to distribute cocaine tent 80 if he was of Interstate eastbound side 841(a)(1) §§ and U.S.C. California, that replied to and Vera driving suppress to motion granted Vera’s highway purchase from the an exit after vehi- during a of his search evidence seized drivers, his and father fuel switch and we re- appeals, The government cle. on the mistakenly highway the entered verse. that rather than wrong ramp. Vera said around, he his father decided turn and I. area. Maddux asked sleep at the rest approximate- September On car, after parked the and Vera who owned a.m., Sheriff William Mad- ly Deputy 7:00 it, he Maddux replied Vera that owned Nebraska, County, entered dux of Seward driver’s license. returned Vera’s lanes of off the eastbound rest area Vera, felt that talking After Maddux car next patrol and his pulled Interstate 80 in “vagueness” and “inconsistencies” the in rest area. A parked to a vehicle were consistent Vera’s statements parked seat of the person the driver’s drug smugglers, he from might what hear and looked at Maddux. suddenly up car sat there were he Vera whether and asked over to that he walked Maddux testified cur- large amounts of drugs, weapons, or everything “to sure vehicle make he had said that rency Vera As he just to talk to him.” all and dollars, drugs and two or three hundred car, that his Maddux noticed exited weapons. or reclining passen- male was another parked vehicle. ger seat of the immedi- Maddux testified car, Vera, spoke Angel The driver of the license, he returned Vera’s ately after Juan Spanish, passenger, but only Maddux, with- keys car Vera handed Vera, Deputy Mad- speak English, did recounted that being Maddux out asked. testi- began to address him. Maddux dux to,” you if said, look want “you can Vera Juan Vera whether that he then asked fied inquired whether Maddux when I out so can stepping mind he “wouldn’t to search giving permission Vera minutes.” Maddux him for a few talk to said, “yeah.” Vera “yeah,” responded, that Vera recounted approached Maddux Vera’s car, front to the and walked exited of the car and Angel get out told Vera if Juan Vera vehicle. Maddux asked then searched nearby. Maddux licence, stand produced and Vera had a driver’s packages ten kilo-sized vehicle and found it. of cocaine within a compart- hidden false when Juan Vera “asked or told” to point ment in the seat. At back one dur- exit his vehicle. The court further con- search, ing attempted get Juan Vera cluded that when Maddux continued to out but Maddux told him question in the patrol car without get back inside the car. him informing that he was free to leave or questions, to refuse to answer no reason- testimony suppression person able have would believed he hearing, Juan stated that Maddux encounter, was free to terminate the end loud, told him in a authoritative voice to questioning, or leave the rest area. get beginning out of the car at the of the Finally, the court decided subse- Vera’s encounter, that he “never behaved in a quent purge consent to search did not manner,” kindly and that Maddux told him detention, taint of the illegal and thus in a get loud voice to into the patrol granted the to suppress. motion Angel Vera likewise testified that Maddux ordered Juan exit his Vera to vehicle. II. Juan Vera also testified that Maddux placed his hand on gun belt when Vera This appeal on focuses whether car, attempted to exit the and then Vera was “seized” within the meaning of up” get shouted at to “shut and back the Fourth Amendment before he consent into the car. toed par search of his vehicle. The agree ties that if the encounter between hearing testimony

After of Maddux consensual, Maddux and Vera was Angel Vera, and both and magis- Juan a then search of Vera’s vehicle based on judge trate found “Deputy Maddux’s ver- his consent was reasonable. We review de sion of events to more be credible than seizure, novo whether there was a and we that of the defendant and his father.” review the district court’s factual determi (Add. 13). magistrate at further con- nations for clear error. United States v. cluded that “Maddux’s in ap- conduct (8th Lerie, 694, Cir.2005) 424 Va proaching the parked Grand Prix and (en banc). knocking on did the window not amount to authority’ a ‘show of a such that reason- “Law enforcement do officers not person able would believe he was not at violate the Fourth prohibi Amendment’s liberty ignore deputy’s presence and merely tion unreasonable seizures (Id.). go about his business.” The magis- approaching on individuals the street or in trate found that Vera voluntarily con- public places other and putting questions sented to Maddux’s search of the car and to them if they willing are to listen.” recommended denial of Vera’s motion to Drayton, 194, United States v. 536 U.S. suppress. 200, 2105, 122 S.Ct. 153 L.Ed.2d 242 review, (2002). On “generally the district court police questioning “[M]ere does agreefd] magistrate’s seizure,” with the recitation of not constitute a long and “[s]o as the facts at hearing” adduced but person indi- a reasonable would feel free ‘to cated it would “supplement disregard police find- about go his busi ings necessary opinion.” ness,’ as to the court’s the encounter is consensual.” Flori Bostick, 429, The court 434, did not make da v. 501 U.S. 111 S.Ct. 2382, (1991) credibility findings to supplement mag- (quoting 115 L.Ed.2d 389 Cal istrate’s, legal question present- D., but on the 621, Hodari 499 U.S. ifornia ed, (1991)). the court ruled that the consensual 111 S.Ct. 113 L.Ed.2d 690 “clearly” seizure, nature of the encounter came end It is a example, however, court, sustained in a cle. The an individual approach for an officer recommendation, objection as to the identify police a Vera’s setting, himself public step “disagree[d] aside it with the officer, explaining ask the individual v. Rodri Florida of the to the application to detectives. law magistrate’s and talk 5-6, analysis S.Ct. guez, U.S. facts connection curiam). (1984) A re (per accordingly L.Ed.2d with the con- stop initial seizure, is not identification quest see voluntarily con- that the defendant clusion convey long police do “as as the vehicle.” sented to search their re- compliance with message that not comment The district court did Bostick, 501 U.S. required.”

quest! ] is explana on whether Maddux’s specifically see United States 111 S.Ct. Cir.2005). tion of the encounter was more credible Slater, repeatedly Juan The court than Vera’s. that an per requirement se is no There was “asked or told” remarked right of his inform a citizen officer consent, and enter the presump- exit and there is refuse given supplementing magistrate’s is invalid where without tion that consent explicit requested notification of the co without an that Maddux Vera’s 206-07, view, at Drayton, 536 U.S. to refuse. In the district court’s operation. agree to many people 2105. That 122 relating S.Ct. of the factual issues “resolution does not police when asked speak was whether Maddux’s demeanor persons do that reasonable suggest tend ‘kindly’ or he mo or authoritative whether “ most citi- not feel free decline: ‘While shouted, tioned, knocked on the gestured, request, the respond police to a will zens signifi marginal of actually are window so, and do so without people fact that do (Add. 5). analysis.” at 32 n. cance to the respond, they told are free not being wrong the court was point, this district On nature of eliminates the consensual hardly of law. An authoritative order a matter as ” 205, 122 S.Ct. 2105 response.’ Id. at a a effects command to exit or 210, Delgado, 466 U.S. (quoting INS 1005, Slater, at while seizure, 411 F.3d see (1984)). 1758, L.Ed.2d 247 S.Ct. that implication request its a —with officer, sum, by means “[o]nly In when the “no indica may gives be request refused — authority, of force or show physical Drayton, required. tion” that consent is liberty of a way some restrained see Va at S.Ct. 536 U.S. a conclude that ‘seizure’ may citizen we Lerie, at 424 F.3d 710. Bostick, at 501 U.S. has occurred.” S.Ct. recognized that there is it is Once be constitutionally significant distinction magis- principles, these applying request and a an official command tween Maddux’s judge “Deputy first found trate refused, demon the record may that be than to more credible” events be version not he seized before that Vera strates versions, noting Angel Vera’s Juan and The to search. gave consent the “main difference” between that magistrate’s agree[d]” with the “generally Mad- that Juan Vera described stories was (unless supplemented), of facts recitation “commanding, au- dux’s tone of voice as on ruling was based 13). court’s and the district thoritative, at or loud.” magistrate’s “disagreefment] with its then recommended conclusion magistrate facts,” on not of the law the application between Maddux that encounter by the key findings consensual, factual its view and that Vera volun- that (Add. at wrong. magistrate were of his vehi- to the search tarily consented Lerie, Maddux testified that he asked Vera at The district court exiting whether he would mind his vehicle also noted that Vera was asked “standard car, entering magis and the questions drug clearly interdiction de- testimony judge trate found Maddux’s signed to request lead to a or command to The district court not more credible. did vehicle, search” his but even where officers beyond “gen supplement findings those its openly in a announce confined area that agree[ment]” magistrate. eral with the they conducting are a narcotics interdic- Therefore, by record as created effort, Drayton, tion 536 U.S. at finding district court leaves us with a S.Ct. citizens have “no reason to asked, ordered, Vera was take the they required believe that to answer [are] in question. actions Because we read the questions.” Id. officers’ district court’s as accepting decision the S.Ct. 2105. The district court did not find magistrate’s findings supple factual unless any application there was of force or opinion, mented the district court’s we contact, physical any or that Maddux made “any do apply reasonable view intimidating other movements. The facts the evidence” test discussed the dis by the support found district court do not sent, and of course we make no factual person conclusion that a reasonable findings post, of our own. 837 & n. Cf. would have to Deputy believed assent 2.1 requests required, Maddux’s and the Absent a factual that Maddux district court concluding therefore erred in request did more than Vera to exit his that Vera was seized. identification, provide his and en- argument Vera conceded at oral that if ter the there is no basis he had not been seized at the time he sat conclude that the encounter anything was Maddux, in the car with then his other than consensual. The in- record consent to search the car was sufficient to cludes no other indicia of Al- coercion. make the search lawful. the Without firearm, though Maddux had a bolstered seized, premise it that Vera was is clear the weapon, officer did not brandish a and that his consent voluntary. was See Va because fact that “most law enforce- Lerie, 709; 424 F.3d at generally see Unit ment officers are armed is well known to Chaidez, ed States v. 906 F.2d public,” a “unlikely holstered firearm is (8th Cir.1990). Vera was an adult male to contribute to the coerciveness” who had graduated high school. encounter He was police. Drayton, 536 U.S. intimidated, not threatened or and there is S.Ct. 2105. The district court allegation Deputy much of Maddux made the fact that made Vera was any misrepresentations promises in informed of his or to to discontinue the but duce Vera to questioning, impor the absence of offer consent. Most such advice tantly, as presumption against magistrate judge does create a con- found with sent, court, particularly out pre- by when the citizen is modification the district Vera a request may sented with that he decline. offered let Maddux search the car and 203, 207, See id. him keys spontaneously. S.Ct. Va handed footnote, fact, a clearly In the district court stated that statement of historical it is erro dispute "[t]here is no that Juan Vera told was plainly dispute among neous. There awas vehicle, or directed to exit to sit in the the witnesses about in manner which squad squad and to remain in the car.” Maddux communicated with Vera about exit 5). passage at 32 n. This does not ing entering his vehicle and credibility purport finding, a to malee as a by the facts are left unresolved “giving disputed was that he agreed explicitly then to the decision district court and material to search.” permission [Maddux] reached, it that court is entitled suppress- of the district The order in the first instance.2 those facts resolve reversed, the case is is ing evidence Khabeer, v. United States consis- proceedings further remanded (8th Cir.2005) Murray (citing v. 483-84 opinion. this tent with States, 108 S.Ct. 487 U.S. United (1988)); HEANEY, dissenting. see also Judge, 101 L.Ed.2d 472 Circuit 12(d) (“When factual issues Fed.R.Crim.P. majority not The respectfully I dissent. motion, deciding a involved are made only disregards determinations findings its on court must state essential court, the district it assumes the district Beck, record.”); v. cf. judgment its by rendering own court’s role Cir.1998) (8th (re- 1129, 1131-32 140 F.3d ap- matters. As an disputed factual about on a ruling court’s versing the district clearly this is outside body, that pellate factual on limited suppress motion to province. court’s uncontested). facts were record because key case is whether this The issue role, majority actively usurping unconstitutionally Vera was Juan Carlos beyond role its bor- this court’s expands turns on That determination seized. der. requested or was ordered whether Vera whether he was asked exit majority is that the If the of the view pa enter Maddux’s or directed to believing matter court erred contested Slater, Accord United States trol car. it to remand this undisputed, ought (8th Cir.2005); United 411 F.3d district court resolve case Cir. Barry, States is true disputes. particularly This factual found the resolu district court here, began its the district court where unnecessary because it tion of these issues only by stating supple- it would analysis dispute that Juan there “no believed findings “as neces- magistrate’s ment his vehi told or directed exit 17.) (Add. at opinion.” court’s sary cle, to remain squad in the to sit believed, al- court district Obviously, the 5.) agree at 32 n. I squad car.” in the authority of wrongly, that the level beit fact, was, it dis majority that with the by Maddux was undis- expressed or ordered Vera was asked puted whether view, Thus, it court’s district puted. squad and sit to exit any credibility necessary to make was not Thus, of court made error district regard to Maddux with determinations regard. fact in this (who ques- kind and that he was testified (who testified tioning) or the Veras majority on how ways I part demanded barked orders which An error Maddux should be rectified. this matter this While compliance) on issue. district court does of fact made our court empower wrong, it does make own factual empower court to its this de- essentially making those is, byit always correct That determinations. this I remand itself. would terminations been, district courts. Where a matter for explicit findings, of Bloomfield, press, even in absence v. F.3d 2. Cir.1994) banc), supports the deci- (en any the evidence (8th view of if our 913-15 case-to majority's course in this the evi- sion. The accepted "any view of reasonable supporting accept any the evidence uphold view of approach, we dence test.” Under obviously contrary to sup- reversal-is on a motion to court's order Bloomfield. matter to district court for intelligent. resolution We thus remand the case to matters, of disputed factual and thus the BIA it for to determine in the first respectfully dissent. validity instance the of Bah’s waiver of his

right to appeal. administrative See United (8th Rodriguez, v. States 420 F.3d Cir.2005) (where waivers of appeal were not intelligent, considered or alien deprived judicial deporta- review of INS, proceeding); tion Palavra v. Cir.2002) (where agency perform function, failed to fact-finding its BAH, Petitioner, Sadou ripe review); case was not appellate for cf. Ashcroft, El-Sheikh v. (8th Cir.2004) (lacking BIA as to GONZALES, Attorney Alberto General asylum applicant’s credibility and BIA America, United States of analysis of what material facts central to Respondent. past persecution claim of should have No. 05-2734. reasonably corroborated, been court of ap- peals way reviewing BIA’s actual Appeals, United States Court of reasoning). Eighth Circuit. Accordingly, grant petition we Bah’s Aug. Submitted: review, and we remand to the BIA for a Aug. Filed: determination as validity to the of Bah’s

appeal waiver.

Counsel represented who petitioner

were A. Igbanugo Herbert and Riddhi

Jani of Minneapolis, MN. represented

Counsel who respon-

dent AUSA, Lay, Andrew J. of St.

Louis, MO. America, UNITED STATES of Appellant, MURPHY, BYE, MELLOY, Before Judges. Circuit Billy HICKS, Lksmillbrst, G. aka PER CURIAM. Appellee. Liberian citizen petitions Sadou Bah No. 05-3670. review of an order of the Board of Immi- (BIA) Appeals, Court of gration Appeals finding lack juris- Eighth Circuit. diction to appeal entertain Bah’s of an (IJ’s) Immigration Judge’s denial of his Submitted: March reopen motion to removal proceedings. Aug. Filed: The BIA erroneously found that Bah had argue, failed to BIA, brief appeal waiver was not knowing and

Case Details

Case Name: United States v. Juan Carlos Vera

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 9, 2006

Citation: 457 F.3d 831

Docket Number: 05-3495

Court Abbreviation: 8th Cir.