                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 21 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10187

                Plaintiff-Appellee,             D.C. No.
                                                4:16-cr-00219-JGZ-DTF-2
 v.

JEREMIAH WADE SLAYDEN,                          MEMORANDUM*

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    18-10326

                Plaintiff-Appellee,             D.C. No.
                                                4:16-cr-00219-JGZ-DTF-1
 v.

ANDREW PAUL MIZE,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Jennifer G. Zipps, District Judge, Presiding

                      Argued and Submitted January 6, 2020
                              Pasadena, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                            Page 2 of 6

Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,** District
Judge.

      Co-defendants Jeremiah Slayden and Andrew Mize appeal from their

convictions for conspiracy to possess with intent to distribute 687 kilograms of

marijuana and possession with intent to distribute the same. Mize also challenges

his 60-month sentence. We affirm.

      1. The district court did not abuse its discretion by denying the defendants’

motion to compel discovery about the Border Patrol checkpoint. Although the stop

took place at a checkpoint, the agents had reasonable suspicion to justify the stop,

based on their observations of a group of people crossing the border and entering

an RV park bearing what looked like marijuana, the departure of the defendants’

truck from the RV park very shortly thereafter, and the doubtful legitimacy of the

truck’s affiliation with Rural Electric. Thus, discovery into the constitutionality of

the Border Patrol checkpoint was irrelevant to the defendants’ efforts to challenge

the legality of the stop.

      2. The district court correctly denied the defendants’ motion to suppress the

marijuana found in their truck. As a preliminary matter, the district court did not

err by finding that the defendants were not arrested at the Border Patrol



      **
            The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
                                                                            Page 3 of 6

checkpoint. Though the agents kept the defendants’ driver’s licenses and

prevented them from leaving the checkpoint, their methods were not intrusive. See

United States v. Edwards, 761 F.3d 977, 981 (9th Cir. 2014). The agents did not

draw their weapons, handcuff or otherwise physically restrain the defendants, or

transfer them to a police vehicle or a cell. Indeed, they permitted Slayden to

remain in or near his truck and make video recordings of his encounters with the

agents. Based on the totality of the circumstances, “a reasonable innocent person

in these circumstances would . . . have felt free to leave after brief questioning.”

Id. (internal quotation marks omitted) (alteration in original).

      By the time the truck moved into secondary inspection, the agents’

reasonable suspicion had ripened into probable cause. First, the defendants’

conduct and statements during primary inspection added to the agents’ suspicions.

Although Slayden claimed to have gone to the RV park for an electrical job, he

could not provide a work order or his client’s full name or contact information and

could not explain why he would travel over two hours in each direction for a job.

Mize, for his part, claimed that it was his first day on the job, and that his boss,

whose name he did not know, had asked him to drive the company truck (which

the agents by then knew was registered to Slayden). Second, the agents testified

that businesses typically paint their company information onto the vehicles

(because stickers melt in the Arizona heat), yet as the truck moved from primary
                                                                            Page 4 of 6

inspection to secondary inspection, the agents noticed that the Rural Electric

company information was affixed to the truck using stickers. They also noticed

that the phone number and website lacked customary elements, making the truck

look unprofessional. Third, as the truck drove past them, the agents saw what they

described as a “void” in the rear of the truck. The truck had small outer

compartments that concealed an internal compartment accessible only from the

roof of the truck, which the officers suspected was used to hide contraband. This

information, when combined with the agents’ observations before the truck pulled

into the checkpoint, amounted to probable cause. Contrary to the defendants’

contention, once the agents had probable cause, they did not need to obtain a

warrant to search the truck, as the automobile exception to the warrant requirement

does not have an additional exigency requirement. See Maryland v. Dyson, 527

U.S. 465, 466 (1999); California v. Carney, 471 U.S. 386, 391 (1985); United

States v. Scott, 705 F.3d 410, 417 (9th Cir. 2012).

      3. The district court properly rejected the defendants’ evidentiary

objections. The Rural Electric vest was properly authenticated pursuant to Federal

Rule of Evidence (FRE) 901 by the company’s owner and was relevant because it

allowed the jury to compare it to the crumpled vest in the defendants’ truck, which

Agent Smith testified Mize had been wearing. Because Mize did not challenge the

vest’s admission under FRE 403 below, we review his argument that he was
                                                                         Page 5 of 6

unfairly prejudiced by its admission only for plain error. There was none.

Slayden’s homemade video was properly authenticated by Agent Smith, and its

introduction as a co-conspirator statement did not violate the Sixth Amendment.

See United States v. Inadi, 475 U.S. 387, 395–96 (1986); United States v. Allen,

425 F.3d 1231, 1235 (9th Cir. 2005).

      4. The district court did not abuse its discretion by declining to give Mize’s

requested jury instructions. First, Mize was not entitled to a mere-presence

instruction. The government’s evidence against Mize involved more than his mere

presence at the scene: He was wearing a utility vest, offered patently implausible

answers to the agents’ questions, and was driving a custom drug-smuggling truck

containing over 1,500 pounds of marijuana, which agents testified drug smugglers

would not permit an uninvolved bystander to do. His requested instruction was

therefore not required. See United States v. Negrete-Gonzales, 966 F.2d 1277,

1282 (9th Cir. 1992). Second, although the government did not preserve all the

evidence it should have, the court properly concluded that a missing-evidence

instruction was not warranted. The record does not support a finding that the

government acted in bad faith or that its oversight prejudiced the defendants. See

United States v. Sivilla, 714 F.3d 1168, 1173 (9th Cir. 2013); United States v.

Romo-Chavez, 681 F.3d 955, 961 (9th Cir. 2012).

      5. Mize was not entitled to severance. We will reverse a district court’s
                                                                          Page 6 of 6

denial of a severance motion only if “a joint trial was so manifestly prejudicial as

to require” separate trials. United States v. Barragan, 871 F.3d 689, 701 (9th Cir.

2017). That was not the case here: Mize and Slayden did not have fundamentally

irreconcilable defenses, see United States v. Johnson, 297 F.3d 845, 858 (9th Cir.

2002), nor did trying the co-defendants together deprive Mize of any specific trial

rights, see Zafiro v. United States, 506 U.S. 534, 539 (1993). All the evidence

introduced would have been admissible against Mize in a separate trial, see United

States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996), and Mize presented no

evidence that Slayden would have testified on Mize’s behalf in a separate trial, let

alone that his testimony would have been substantially exculpatory, see United

States v. Reese, 2 F.3d 870, 892 (9th Cir. 1993).

      6. The district court did not err when sentencing Mize. Although Mize

contends he was entitled to safety-valve relief under 18 U.S.C. § 3553(f), the

district court’s finding that Mize had not “truthfully provided” information to the

government was not clearly erroneous. Nor did the court clearly err in finding that

Mize gave false testimony on a material matter with willful intent. United States v.

Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014). Rejecting safety-valve relief and

applying an obstruction-of-justice enhancement was therefore not improper.

      AFFIRMED.
