F I L E D United States Court of Appeals Tenth Circuit PUBLISH November 15, 2006 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, v. No. 05-4299 N ICHO LA S M EN D O ZA ,
Defendant - Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT FOR T HE DISTRICT OF UTAH (D .C . NO. 05-CR-051-01-PGC)
D. Bruce Oliver, D. Bruce Oliver, L.L.C., Salt Lake City, Utah, for D efendant - Appellant.
Karin M . Fojtik, Assistant United States Attorney (Stephen J. Sorenson, United States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff - Appellee.
Before KELLY, B EA M , * and HA RTZ, Circuit Judges.
HA RTZ, Circuit Judge.
* The Honorable C . Arlen Beam, Senior Circuit Judge for the Eighth Circuit Court of Appeals, sitting by designation. Nicolas M endoza was indicted in the United States District Court for the
District of Utah on a charge of possession of methamphetamine with intent to
distribute, see 28 U.S.C. § 841(a)(1). He pleaded guilty to the charge but
reserved his right to appeal the denial of his motion to suppress the evidence
seized from his motor vehicle. On appeal he challenges that denial and also
contends that the district judge should have disqualified himself from the case,
that the government breached its plea agreement by instituting civil forfeiture
proceedings against his vehicle, and that he is entitled to a reduction in his
sentence as a mere “minor participant” in a larger drug scheme. W e have
jurisdiction under 28 U.S.C. § 1291 and affirm.
I. B AC KGR OU N D
View ing the evidence at the suppression hearing in the light most favorable
to the district court’s ruling, see United States v. Lopez, 437 F.3d 1059, 1062
(10th Cir. 2006), we summarize the pertinent events as follows: On January 8,
2005, U tah State Police trooper Nick Bowles observed two recent-model SUVs
that appeared to be traveling in tandem, about one car-length apart, on Utah
Highway SR-191 near M oab, Utah. One had a M innesota license plate; the other,
an Arizona plate. The sole occupant of each vehicle w as a young male. Bowles’s
experience suggested that the drivers were possibly involved in drug trafficking
or auto theft. W hen he made a u-turn to follow the vehicles, they promptly pulled
into a service station. He continued on but then stopped by the side of the road to
-2- await their approach. They passed him again, and he resumed following them.
W hen M r. M endoza’s vehicle, a 2000 Ford Excursion, failed to stop at a stop
sign, Bowles pulled him over. A M oab police officer, who had been contacted by
Bowles, stopped the other vehicle for following too closely.
As M r. M endoza rolled down his car window, Bowles noticed a strong odor
of air freshener and observed two unusually placed air fresheners— one near an air
vent and one attached to a seatbelt hold in the backseat. Bowles asked for driver
and vehicle information. M r. M endoza provided his M innesota driver’s license
and, while looking through the glove box, said that the vehicle belonged to a
friend. W hen he found the title, he presented it, his hands trembling, to Bowles.
The title was in M r. M endoza’s name. He then said that he was buying it from a
friend. Asked when he bought the vehicle, he responded that the purchase was on
December 10 or 11, although the date on the title was December 20. He said that
he had paid $12,000, which seemed low to Bowles. Later M r. M endoza said that
he had purchased the vehicle from “a M exican” whose name he could not
remember. R. Vol. II at 264.
During this time Bowles had radioed the dispatcher for confirmation of the
validity of the license and title. W hile Bowles awaited a response, M r. M endoza
volunteered that he w as returning from visiting his father in California. He
claimed to have traveled east to Flagstaff and then north through Utah, a route
that made no sense to Bowles because it entailed unnecessary travel in the Rocky
-3- M ountains during the winter. M r. M endoza denied that he was traveling with
anyone else. After Bowles was informed that the driver’s license was valid and
the vehicle was not stolen, he told M r. M endoza that he was free to leave.
Bowles then asked a few more questions, which M r. M endoza answered. But
when Bowles requested permission to search the car, M r. M endoza refused.
At that point Bowles informed M r. M endoza that he was not free to leave
and that he was being detained until a dog could arrive to inspect the vehicle.
The nearest handler was in M onticello, about 50 miles away. Bowles promptly
called for a dog and conveyed the urgency of the situation to the handler. The
dog and handler arrived 40 minutes later. The dog alerted to the rear door on the
driver’s side of the Excursion, near the gas tank. Bowles then searched the car,
finding methamphetamine in the gas tank. He arrested M r. M endoza, who was
indicted in federal court on January 26, 2005.
In M arch 2005 M r. M endoza filed a motion to suppress the evidence found
by Trooper Bowles. The motion was denied. In July M r. M endoza agreed to
plead guilty to possession of methamphetamine with intent to distribute, but he
reserved his right to appeal the denial of his suppression motion. On September
14 he brought a motion to disqualify Judge Cassell, claiming an appearance of
impropriety on the part of the judge because of the judge’s referral of
M r. M endoza’s attorney to disciplinary authorities three weeks earlier. The
motion was denied.
-4- M eanwhile, on September 12 the government had filed a motion for
criminal forfeiture of M r. M endoza’s 2000 Ford Excursion. At a hearing on
October 19 M r. M endoza’s attorney contended that forfeiture would be a breach
of the plea agreement, which made no mention of forfeiture. The government
responded that the absence of any reference to forfeiture in the agreement left the
government free to pursue forfeiture and that if the agreement prohibited a
forfeiture, M r. M endoza’s sole remedy would be to w ithdraw his plea. It also
noted that earlier in the day it had filed a civil forfeiture action, which had been
assigned to another judge. M r. M endoza’s attorney reiterated his objection to the
forfeiture but rejected the notion of withdrawing the plea. Judge Cassell asked
whether it would be a “major inconvenience” for the government to rely on the
civil proceeding. R. Vol. II at 359. W hen the government answ ered that it would
not, Judge Cassell pronounced that “there is no forfeiture of the vehicle in this
case.” Id. at 360. M r. M endoza protested that civil forfeiture would also breach
the agreement. But he rejected Judge Cassell’s suggestion that the civil-forfeiture
case be consolidated with the criminal case. Because that case was pending
before another judge, Judge Cassell issued no ruling on the civil forfeiture, nor
was he asked to.
At sentencing in November 2005 M r. M endoza argued that he was merely a
“minor participant” in the drug offense and was therefore entitled to a reduction
-5- in his offense level under the United States Sentencing Guidelines (USSG ). The
district court rejected the argument and sentenced him to 168 months in prison.
II. D ISC USSIO N
A. Suppression of Evidence
M r. M endoza argues that the evidence against him should have been
suppressed by the district court because it was recovered in violation of the
Fourth A mendment’s protections against unreasonable searches and seizures. H e
further contends that Bowles was obligated under state law to obtain a telephonic
warrant while he waited for the dog to arrive. W e review de novo the district
court’s legal conclusions and its ultimate holding of reasonableness under the
Fourth A mendment, but we accept the district court’s findings of fact unless
clearly erroneous. See U nited States v. Caro, 248 F.3d 1240, 1243 (10th Cir.
2001).
The state-law claim can be disposed of summarily.
[I]n federal prosecutions the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by Federal law even though the police actions are those of state police officers. . . . Therefore, the fact that the arrest, search, or seizure may have violated state law is irrelevant as long as the standards developed under the Federal Constitution were not offended.
United States v. Le, 173 F.3d 1258, 1264-65 (10th Cir. 1999) (internal quotation
marks, citations, and brackets omitted); see United States v. Bach, 310 F.3d 1063,
1066 (8th Cir. 2002) (“[F]ederal courts in a federal prosecution do not suppress
-6- evidence that is seized by state officers in violation of state law, so long as the
search complied with the Fourth Amendment.”).
M r. M endoza’s arguments under the Fourth Amendment also fail. W e
begin by stating what we need not resolve. Although at oral argument before this
court M r. M endoza challenged the existence of reasonable suspicion for his
detention until the dog arrived, he did not adequately raise this argument in his
brief in chief. Two portions of his brief are relevant: Point I, entitled “The
Government M ust Show That a W arrant W as Not Practical W hile Awaiting 40
M inutes For a K-9 Drug Dog To Arrive,” Aplt. Br. at 34, and Point III, entitled
“The Trooper’s Conduct was Exploitative of the Stop and the Detention was
Unlawful,” id. at 44. (Point II discusses his state-law argument, and Points IV, V ,
and VI do not address search-and-seizure matters.) On the second page of the
four-page discussion under Point I, the brief states, “Defendant believes that
Trooper Bowles lacked probable cause to detain M r. M endoza for 40 minutes.”
Id. at 35. There is no assertion that reasonable suspicion was lacking. As for
Point III, although its thrust is uncertain, its focus appears to be that the search
was an exploitation of the unlawful detention. The section concludes: “[Trooper
Bowles] exploited the stop in order to detain M endoza longer in order to search
his vehicle ‘whether he liked it or not.’” Id. at 47-48. W e can find no argument
in Point III challenging the existence of reasonable suspicion. Perhaps one might
discern such an argument in the reply brief. But that is too late to raise an
-7- appellate issue. See United States v. M urray, 82 F.3d 361, 363 n.3 (10th Cir.
1996). And even if it were not too late, the reply brief is far from clear; it says:
In summation, Trooper Bowles’ testimony did not rise to probable cause as it needed to be. The facts surrounding the admitted seizure of M r. M endoza required probable cause while awaiting the drug- detection dog rather than merely reasonable suspicion contrary to Trooper Bowles’ erred belief [which] is perpetuated as the Government’s position stated in [its] brief . . . .
Aplt. Reply Br. at 15. Before we deem ourselves obligated to address an issue,
appellate counsel must present the issue to us with some degree of clarity,
certainly with more clarity than any reasonable-suspicion issue is raised in
M r. M endoza’s brief in chief.
W e now turn to the first Fourth Amendment issue raised by M r. M endoza
on appeal— whether the 40-minute detention was unlawful absent probable cause.
W e hold that probable cause was unnecessary. Officers with reasonable suspicion
to believe that the occupants of a vehicle are engaged in the unlawful
transportation of contraband may detain the vehicle for a reasonable time to
obtain a properly trained dog to sniff for contraband. Given the distance between
the scene of the detention and the nearest handler, as w ell as Trooper Bowles’s
diligence in promptly calling the dog handler and the handler’s speedy arrival, a
40-minute detention was reasonable. See United States v. Santos, 403 F.3d 1120,
1124, 1134 (10th Cir. 2005) (22 minutes); United States v. Villa-Chaparro, 115
F.3d 797, 802-03 (10th Cir. 1997) (38 minutes).
-8- Because the 40-minute detention was law ful, we reject M r. M endoza’s
Point III, which is that Trooper Bowles exploited the stop. There is nothing
improper about law-enforcement officials “exploiting” lawful investigative
measures.
M r. M endoza’s final challenge to the search and seizure is that Trooper
Bowles had probable cause to search only the portion of the vehicle where the
dog alert occurred, not the entire vehicle. This circuit has previously rejected this
argument. In United States v. Rosborough, 366 F.3d 1145, 1153 (10th Cir. 2004),
we wrote: “A dog alert creates general probable cause to search a vehicle; it does
not implicate the precision of a surgeon working with scalpel in hand.”
M r. M endoza relies on a footnote in United States v. Seals, 987 F.2d 1102, 1107
n.8 (5th Cir. 1993), in which the Fifth Circuit distinguished between dog alerts
that give rise to probable cause to search the whole vehicle and those that give
rise to search only the passenger compartment of the vehicle. But our
Rosborough decision explicitly noted the distinction drawn in Seals and rejected
it. See Rosborough, 366 F.3d at 1153.
W e affirm the district court’s denial of M r. M endoza’s motion to suppress.
B. Recusal of Judge
M r. M endoza moved in district court that Judge Cassell be disqualified
because of apparent bias against his attorney, D. Bruce O liver. The district court
denied the motion. M r. M endoza complains that Judge Cassell has referred
-9- M r. Oliver to a bar disciplinary board, published his order denying the motion to
disqualify him in this case, and had a prior scholarly relationship with the
prosecutor, although he courteously “concedes that [otherwise] the Judge has
always conducted himself in a highly professional manner and accorded
M r. O liver w ith due respect.” Aplt. Br. at 49.
Under 28 U.S.C. § 455(a), a judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” W e have
explained that “disqualification is appropriate only where a reasonable person,
were he to know all the circumstances, would harbor doubts about the judge’s
impartiality.” In re M cCarthey, 368 F.3d 1266, 1269 (10th Cir. 2004). W e
review for abuse of discretion the decision of Judge Cassell not to disqualify
himself, see United States v. Smith, 997 F.2d 674, 681 (10th Cir. 1993); but w e
review for plain error whether he should have been disqualified on the basis of a
personal relationship with the prosecutor, because this argument was not raised in
the district court, see United States v. Nickl, 427 F.3d 1286, 1297-98 (10th Cir.
2005).
Judge Cassell did not abuse his discretion in declining to recuse himself. A
judge should not be disqualified for faithfully performing the duties of his office.
Unfavorable judicial rulings do not in themselves call into question the
impartiality of a judge. See Estate of Bishop v. Equinox Int’l Corp., 256 F.3d
1050, 1058 (10th Cir. 2002). Nor do referrals for disciplinary review. As Judge
-10- Cassell well put it: “Judges are obligated to alert disciplinary authorities to
possible unethical conduct by attorneys. Judges do not demonstrate possible bias
or prejudice when they discharge that obligation.” R. Vol. II at 247; cf. In re
Cooper, 821 F.2d 833, 838 (1st Cir. 1987) (“Generally, clashes between court and
counsel are an insufficient basis for disqualification.”); United States v. Cook,
400 F.2d 877, 878 (4th Cir. 1968) (judge who sat in disciplinary hearing that led
to suspension of original attorney was not disqualified); Honneus v. United States,
425 F. Supp. 164, 166 (D. M ass. 1977) (“[T]he fact that as a matter of public
record a judge referred the in-court unprofessional conduct of an attorney to a Bar
Association Grievance Committee, does not require him to recuse himself from
hearing the post-conviction motions of the attorney’s client, particularly where, as
here, that attorney no longer represents the client.”).
M r. Oliver emphasizes, however, that Judge Cassell did not limit himself to
reporting misconduct before him but also “conducted an extrajudicial
investigation into Oliver’s other cases from a docket search.” Aplt. Br. at 49. W e
agree that such “extra effort” by a judge may suggest a vendetta. But that is not
the situation here. Judge Cassell explained his actions as follows:
M r. Oliver’s motion in this case related to actions the court took in Spitler v. Ogden City, a civil case that is unrelated to this matter.
M r. Oliver is counsel for plaintiff in Spitler. In a period of six months, the defendants in Spitler twice moved for sanctions — including dismissal — because of plaintiff’s repeated failures to cooperate in discovery. The court did not dismiss the case, but
-11- sanctioned M r. Oliver because he admitted he “had some culpability for the creation of the circumstances at hand.”
Spitler was not the first time the court observed problems w ith M r. Oliver’s conduct. Combined with Spitler, these prior proceedings w ere enough, in the court’s judgment, to trigger its obligation under Canon 3(B)(3) of the Code of Conduct for United States Judges to “initiate appropriate action when the judge becomes aware of reliable evidence indicating the likelihood of unprofessional conduct by a judge or a law yer.” Thus, the court performed a simple docket search of cases in the United States District Court for the District of Utah in which M r. Oliver acted as counsel. The docket entries in a number of these cases — before the undersigned and other District of Utah judges — revealed what appeared to be numerous possible violations of M r. Oliver’s professional or ethical duties. The court culled these entries into a[n] order that it sealed and sent to the Utah State Bar Office of Professional Conduct and the District of Utah’s Disciplinary Panel for further investigation.”
R. Vol. II at 248-49 (internal brackets and footnotes omitted). In our view, no
reasonable person, informed of these facts, would question Judge Cassell’s
impartiality in this case.
M r. M endoza’s newly raised complaint regarding Judge Cassell’s
impartiality is based on a law-review article the judge wrote 13 years ago. A
footnote in the article states: “I gratefully acknowledge helpful comm ents from
. . . Veda Travis . . . .” Paul G. Cassell, The M ysterious Creation of Search and
Seizure Exclusionary Rules Under State C onstitutions; The Utah Example, 1993
Utah L. Rev. 751, 751 n.a (thanking 12 people and participants in a faculty
colloquium). M s. Travis w as the prosecutor in this case. W e consider w hether it
was plain error for Judge Cassell to preside in this case in light of this prior
-12- “relationship” with M s. Travis. For us to reverse for plain error, there must be
“(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Gonzales-Huerta, 403 F.3d 727, 732 (10th Cir.
2005) (en banc) (internal quotation marks omitted). W e need not proceed beyond
the first requirement, because there was no error here. The two-part test for
whether a judge should disqualify himself because of a relationship with a lawyer
is whether “the judge feels capable of disregarding the relationship and whether
others can reasonably be expected to believe that the relationship is disregarded.”
United States v. M urphy, 768 F.2d 1518, 1537 (7th Cir. 1985) (quoting Interim
Advisory Comm. on Judicial Activities, Advisory Op. 11 (1970)). All we have
here is a 12-year-old expression of gratitude. This is far too tenuous a connection
for a reasonable person to question Judge Cassell’s impartiality. See Singer v.
Wadman, 745 F.2d 606, 608 (10th Cir. 1984) (judge could preside over cases
litigated by his former law partner).
C. Breach of Plea Agreement
M r. M endoza claims that the government is barred from proceeding in a
civil-forfeiture action against his vehicle. He argues that the government’s effort
to seek civil forfeiture breached the terms of his plea agreement. To prevail on
this contention, he would have to overcome significant obstacles. He would need
to establish that a prohibition on forfeiture was an implied term of his plea
-13- agreement. See United States v. Scott, 455 F.3d 1188, 1190 (10th Cir. 2006).
And he would need to establish that the alleged promise to refrain from forfeiting
the vehicle was a material inducement for his plea, see id. at 1191, despite the
contrary inference that can be drawn from his decision not to withdraw his plea
when he learned of the impending forfeiture.
The civil forfeiture, however, is not before us. It is a separate case, with a
separate docket number, before a different district judge. W hen the issue was
raised before Judge Cassell, he asked whether M r. M endoza wanted to have the
civil forfeiture consolidated with the criminal case, so that Judge Cassell could
rule on the matter; but M r. M endoza’s counsel chose not to seek consolidation.
Accordingly, Judge Cassell issued no ruling regarding the propriety of civil
forfeiture. How we would have jurisdiction over the civil forfeiture on this
criminal appeal is unclear to us. M r. M endoza may pursue his challenge in the
civil case and appeal if he is not satisfied with the district court’s decision.
D. M inor-Participant Reduction
In computing M r. M endoza’s offense level under the Sentencing
Guidelines, the district court refused to give M r. M endoza a two-level reduction
as a minor participant. Section 3B1.2(b) of the Guidelines states: “If the
defendant was a minor participant in any criminal activity, decrease by 2 levels.”
According to comment 3(A) to that section:
-14- [A ] defendant who is convicted of a drug trafficking offense, whose role in that offense was limited to transporting or storing drugs and who is accountable . . . only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline.
Commentary to the Guidelines is authoritative unless it is inconsistent with the
Constitution or federal statutes, or would lead to a plainly erroneous reading of
the Guidelines. See United States v. Salazar-Samaniega, 361 F.3d 1271, 1275
(10th Cir. 2004).
M r. M endoza argues as follows:
The testimony of A gent C ox revealed that M endoza was a mule. He was the driver, that extent of participation cannot be construed as anything more than minor participation. Also brought out at sentencing was the extent of his involvement in the proceeds. The Defendant received $5,000 per trip. The Government calculated that M endoza was transporting 1.8 million dollars of street value methamphetamine. Certainly, Defendants [sic] involvement is no more than minor qualifying him for a two-step reduction.
Aplt. Br. at 53 (internal citations omitted). But the defendant has the burden to
establish by a preponderance of the evidence that he was a minor participant. See
United States v. Onheiber, 173 F.3d 1254, 1258 (10th Cir. 1999). And the district
court is under no obligation to trust the defendant’s “bare assertions.” See USSG
§ 3B1.2, comment (n.3(C)); Salazar-Samaniega, 361 F.3d at 1278.
M r. M endoza was the registered owner of the vehicle transporting the
drugs, and he admitted that he had made three drug-delivery trips. M oreover,
there was testimony from a law-enforcement officer, who had reviewed recorded
-15- telephone conversations of M r. M endoza while he was incarcerated, that strongly
indicated that M r. M endoza was not fully disclosing his involvement. We hold
that it was reasonable for the district court not to have been persuaded that
M r. M endoza was a minor participant. See Salazar-Samaniega, 361 F.3d at 1278.
III. C ON CLU SIO N
W e A FFIR M the judgment below.
-16-