United States v. Mendivil

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 12, 2006
• Docket: 16-9542
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit

December 12, 2006 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee, No. 05-2271 v. (D.C. No. CR-03-2112-13 M V) (D . N.M .) M AR TIN M END IVIL,

Defendant-Appellant.

OR DER AND JUDGM ENT *

Before BR ISC OE, M cCO NNELL, and GORSUCH, Circuit Judges.

M artin M endivil was found guilty following a jury trial of conspiracy to

possess with intent to distribute 1,000 kilograms or more of marijuana. See 21

U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). He was sentenced to 63 months’

imprisonment. On appeal, M r. M endivil’s counsel filed an Anders brief and

moved to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).

* After examining defense counsel’s brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed R. App. P. 34(a)(2); 10th Cir. R. 34.1(G ). The case is therefore ordered and submitted without oral argument. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007). M r. M endivil did not file a response, and the government declined to file a brief.

For the reasons set forth below, we conclude that there are no meritorious issues

for appeal, and we therefore grant the motion to withdraw and dismiss the appeal.

t t t

V iew ing the evidence in the light most favorable to the government, as w e

are obliged to do, United States v. Isaac-Sigala, 448 F.3d 1206, 1210 (10th Cir.

2006), the evidence at trial established that M r. M endivil participated in a plot to

transport mass quantities of marijuana (in total the government seized almost

5,000 kilograms) from the southwestern United States to the Chicago area for

distribution. On M ay 18, 2003, Yolanda Alarcon, a truck driver and Federal

Bureau of Investigation (“FBI”) informant, alerted the FBI that she had been

asked to drive, as part of the conspiracy, a commercial truck to be loaded with

marijuana in Las Cruces, New M exico. Edgar Lopez-Hernandez, another

participant in the conspiracy, instructed M s. Alarcon to move the truck from a

Pilot Truck Stop to a radiator shop in Las Cruces. M r. Lopez-Hernandez told her

that although the truck already housed some marijuana, more was to be loaded at

the radiator shop. Upon arriving there, M s. Alarcon observed members of the

conspiracy, and others, load the truck with several pallets containing boxes of

marijuana. After the truck was loaded, M s. Alarcon was told to move the truck to

a TravelCenters of America (“TA ”) truck stop also in Las Cruces. After dropping

off the truck at the TA truck stop, M r. Lopez-Hernandez drove M s. Alarcon to her

-2- home in his personal vehicle. The FBI kept the truck under surveillance at the

TA truck stop. Later that day, M r. M endivil appeared at the truck stop, took

control of the truck, and proceeded to drive it northbound. The truck was stopped

at a permanent U.S. Border Patrol checkpoint on Interstate 25 approximately 20

miles north of Las Cruces, New M exico.

Prior to approaching M r. M endivil, the B order Patrol agent observed M r.

M endivil exhibiting what the agent considered to be nervous behavior – shuffling

with papers on the dash and compulsively smoking cigarettes. W hen asked by the

Border Patrol agent what he was carrying, M r. M endivil responded that he was

hauling “lavadoras,” Spanish for washers. Upon inspection, the Border Patrol

agent found, however, that the bill of lading indicated the truck was carrying a

load of red chile, something rather different indeed; neither did the bill of lading

indicate the shipper’s name or address as required. M r. M endivil also gave

conflicting responses to whether there was a lock on the cargo door. The Border

Patrol agent then asked, and allegedly received, M r. M endivil’s consent to search

the cargo, including a canine search of the outside perimeter of the vehicle. The

dog alerted and 1,417 kilograms of marijuana were subsequently found piled into

M r. M endivil’s truck.

At trial, the government presented other evidence in addition to the Border

Patrol agent’s testimony connecting M r. M endivil to the drug trafficking

conspiracy. For example, on April 7, 2003, during an FBI search of a truck

-3- driven by M s. Alarcon, the FBI identified a blue medical card belonging to M r.

M endivil and a log book that identified M r. M endivil as having driven two prior

round trips from Las Cruces to Chicago during the pendency of the conspiracy.

M r. Jorge Torres-Laranega, a ringleader of the group, also apparently paid certain

of M r. M endivil’s attorney fees.

On August 6, 2003, M r. M endivil was indicted for violating 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A) – possession with intent to distribute 1,000 kilograms

or more of marijuana. In response to M r. M endivil’s subsequent motion to

suppress the evidence resulting from the checkpoint stop and search, the

government filed a motion to dismiss with prejudice the August 6, 2003

indictment because it determined that it was not in the interests of the government

to proceed with the suppression hearing at that time; doing so, it explained, risked

compromising its then still-ongoing conspiracy investigation. The district court

granted the government’s motion on October 23, 2003.

On February 19, 2004, a grand jury returned a superseding indictment in

which M r. M endivil was charged for the first time with conspiracy to possess

with intent to distribute marijuana, a violation of 21 U.S.C. §846. M r. M endivil

again pursued a motion to suppress. The conspiracy investigation no longer an

issue by this time, the government opposed the motion. The district court, after a

hearing on the matter, denied the motion to suppress and set the matter for trial.

After a five week jury trial, M r. M endivil was convicted and subsequently

-4- sentenced.

Counsel may “request permission to w ithdraw [from an appeal] where

counsel conscientiously examines a case and determines that any appeal would be

wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005)

(citing Anders, 386 U.S. at 744). This process requires counsel to

submit a brief to the client and the appellate court indicating any potential appealable issues based on the record. The client may then choose to submit arguments to the court. The [c]ourt must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal.

Id. (citing Anders, 386 U.S. at 744).

In his Anders brief, counsel notes that M r. M endivil urged him to appeal on

the bases that (1) the District Court erred in its denial of M r. M endivil’s motion

to suppress the evidence seized in the checkpoint stop, (2) the District Court erred

in its denial of M r. M endivil’s motion to dismiss the indictment on double

jeopardy grounds, and (3) there w as insufficient evidence to support the jury

verdict that M r. M endivil participated in a conspiracy. Our review confirms

counsel’s conclusion that no basis in law or fact exists for any of these arguments.

In assessing a district court’s denial of a motion to suppress, this Court

views the evidence in the light most favorable to the government and accepts the

district court’s factual findings unless they are clearly erroneous. United States v.

-5- Grim mett, 439 F.3d 1263, 1268 (10th Cir. 2006). M r. M endivil argues that the

detention and search of his truck was not voluntary and thus the fruits of the

search should have been suppressed. At a permanent U.S. Border Patrol

checkpoint, however, a border patrol agent is permitted to question motorists

briefly on topics “reasonably related to the agent’s duty to prevent the

unauthorized entry of individuals into this country and to prevent the smuggling

of contraband.” United States v. Rascon-Ortiz, 994 F.2d 749, 752 (10th Cir.

1993). The agent may further detain a motorist if the agent has reasonable

suspicion or probable cause, if the motorist consents, or if the agent observes

“suspicious circumstances.” Id. at 753. “[B]order patrol agents are given

deference in relying upon their law enforcement training and past experience in

deciding whether a suspicious circumstance exists.” Id.

M r. M endivil’s own testimony at the suppression hearing made clear that

the Border Patrol agent’s initial questions were permissible and routine – the

agent asked about M r. M endivil’s legal status in this country, where he was

going, and the nature of the cargo in his truck. During the checkpoint stop, the

Border Patrol agent observed M r. M endivil exhibiting nervous behavior and noted

a variety of other suspicious circumstances: the bill of lading’s indication that the

truck w as carrying chile although M r. M endivil stated he was carrying washers,

the bill of lading’s failure to provide the identity of the shipper, and M r.

M endivil’s conflicting responses regarding whether there was a lock on the cargo

-6- door. These circumstances sufficed to justify the Border Patrol agent’s brief

detention of the Defendant to investigate his suspicions. See Rascon-Ortiz, 994

F.2d at 753 (holding that nervousness alone constitutes a suspicious

circumstance). W ithin five minutes, moreover, a dog was brought to sniff the

outside of M r. M endivil’s truck. Though consent is not required for such a

procedure during an otherwise routine and law ful detention at a fixed checkpoint,

United States v. Chavira, 9 F.3d 888, 890 n.1 (10th Cir. 1993), there is evidence

before us indicating that M r. M endivil did give consent. In any event, the dog

promptly alerted, the agent thereafter had probable cause to conduct the search,

and thus M r. M endivil’s motion to suppress is without merit. Id. at 890.

In assessing the denial of a motion to dismiss an indictment on legal

grounds, we review the district court’s decision de novo. United States v.

Ambort, 405 F.3d 1109, 1116 (10th Cir. 2005). M r. M endivil argues that his

motion to dismiss the February 19, 2004 indictment should have been granted on

double jeopardy grounds because his prior August 6, 2003 indictment for

possession with intent to distribute was dismissed with prejudice. But the

Supreme Court has definitively held otherwise, indicating that conspiracy to

commit an offense and the offense itself “are separate offenses for double

jeopardy purposes.” United States v. Felix, 503 U.S. 378, 390-91 (1992); see also

Harvey v. Shillinger, 76 F.3d 1528, 1533 (10th Cir. 1996).

W ith respect to M r. M endivil’s sufficiency of evidence argument, in a drug

-7- trafficking conspiracy, the government must establish that the defendant (1)

agreed with two or more persons to import and possess with intent to distribute

1,000 kilograms or more of marijuana, (2) knew at least the essential objectives of

the conspiracy, (3) knowingly and voluntarily became part of the conspiracy, and

(4) w as interdependent on other co-conspirators. See United States v. Arras, 373

F.3d 1071, 1074 (10th Cir. 2004). Having reviewed the entire record in this case,

pertinent facts of which are recited above, and viewing those facts in the light

most favorable to the government as we must, we cannot help but conclude that

ample evidence exists to support M r. M endivil’s conviction.

For the foregoing reasons, we D ISM ISS the appeal and GRANT counsel’s

motion to withdraw.

ENTERED FOR THE COURT

Neil M . Gorsuch Circuit Judge

-8-