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United States v. Hernandez-Mendoza

April 6, 2010

UNITED STATES OF AMERICA, APPELLEE,
v.
JESE HERNANDEZ-MENDOZA, APPELLANT.
UNITED STATES OF AMERICA, APPELLEE,
v.
EDDIE MARTINEZ, APPELLANT.



Appeals from the United States District Court for the District of South Dakota.

The opinion of the court was delivered by: Colloton, Circuit Judge.

Submitted: October 21, 2009

Before COLLOTON, BEAM, and BENTON, Circuit Judges.

Jese Hernandez-Mendoza and Eddie Martinez appeal from a judgment of conviction for one count of conspiracy to distribute methamphetamine, one count of possession with intent to distribute methamphetamine, and one count of possession with intent to distribute cocaine. The district court*fn1 denied the appellants' motions for judgment of acquittal and sentenced each to 121 months' imprisonment and five years of supervised release. We affirm.

I.

On February 29, 2008, Hernandez-Mendoza and Martinez were traveling east on Interstate 90 through Wyoming when Wyoming Highway Patrol Trooper Tim Boumeister stopped their vehicle for speeding. After Boumeister issued a warning citation to Hernandez-Mendoza, the driver, the trooper obtained Hernandez-Mendoza's consent to ask additional questions and search the vehicle. Boumeister also called Captain Jeffrey Hodge, a deputy sheriff with the Crook County, Wyoming, Sheriff's Office to request his assistance in performing a canine sniff of the vehicle.

Hodge arrived on the scene and obtained consent from Hernandez--Mendoza for a drug dog to enter the vehicle. The dog alerted to the presence of drugs in the area near the dashboard. Boumeister and Hodge then searched the vehicle on the roadside for approximately one hour, but found no drugs. Law enforcement officers then took the vehicle to a Wyoming Highway Patrol garage for further examination. Approximately three hours after the initial stop, having located no drugs hidden in the vehicle, a Wyoming Highway Patrol Lieutenant concluded that there were no drugs to be found, and ordered the vehicle released.

Hodge disagreed with the Lieutenant's decision and contacted South Dakota Highway Patrol Trooper Brian Swets. Hodge described the vehicle and told Swets that the drug dog had alerted to the vehicle. He also cited several factors about the vehicle that led Hodge to believe that the travelers were involved in illegal activity. Hodge notified Swets that the vehicle was heading east on Interstate 90 toward South Dakota.

Swets later spotted the appellants' vehicle and stopped it for speeding. During the stop, Swets deployed his drug dog, and the dog alerted between the front and rear passenger side doors. Swets then began to search the vehicle. In the rear hatchback area, he noticed non-factory carpet, a shallow storage compartment, and loose trim. After removing the trim, Swets was able to shine his flashlight through holes in the storage compartment, and he saw several food storage containers hidden below the metal floor of the compartment. Law enforcement officers seized the containers and found methamphetamine and cocaine therein.

Trooper Nicholas Allen then arrived on the scene to transport the appellants to the South Dakota Highway Patrol Office. Unbeknownst to the appellants, Allen's video recorder was recording the entire time they were in Allen's vehicle. At one point, Allen left the vehicle, and the equipment recorded a conversation in Spanish between Hernandez-Mendoza and Martinez.

Once the appellants arrived at the patrol office, Agent Chad Evans of the South Dakota Division of Criminal Investigation administered to Martinez the warnings based on Miranda v. Arizona, 384 U.S. 436 (1966), obtained a waiver of rights, and questioned Martinez. Martinez made incriminating statements.

After the grand jury returned an indictment, both appellants moved to suppress physical evidence seized as a result of Trooper Swets's search and statements recorded in Trooper Allen's vehicle. Martinez also moved to suppress his statements to Agent Evans. After a hearing, a magistrate judge recommended that the physical evidence found in the appellants' vehicle should be suppressed, but that the recorded conversation in the back of Trooper Allen's vehicle and Martinez's statements to Agent Evans should be admissible. On de novo review, the district court rejected the recommendation to suppress the physical evidence, and denied the relevant portions of the motions to suppress.

A jury found the appellants guilty on all three counts of the indictment. As relevant to this appeal, the district court overruled appellants' objection to a final jury instruction on deliberate ignorance. The court also denied the appellants' motions for judgment of ...


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