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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                     No. 34,626

 5 DAVID GONZALES,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Brett R. Loveless, District Judge

 9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 L. Helen Bennett, P.C.
14 L. Helen Bennett
15 Albuquerque, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 GARCIA, Judge.
 1   {1}   Defendant David Gonzales appeals from his jury convictions for trafficking by

 2 possession with intent to distribute methamphetamine and possession of drug

 3 paraphernalia. He raises three issues on appeal, asserting that the district court erred

 4 in: (1) denying his motion to suppress evidence that he claims was obtained during an

 5 illegal search and seizure of his vehicle, (2) denying his motion to suppress statements

 6 he made to the arresting officer without Miranda warnings, and (3) denying his

 7 motion for a mistrial based on improper statements made by the prosecutor during

 8 closing arguments. We affirm.

 9 I.      BACKGROUND

10   {2}   On May 10, 2013, at approximately 3:30 a.m., Deputy Jeff Bartram of the

11 Bernalillo County Sheriff’s Office was on patrol and stopped Defendant for speeding.

12 During the traffic stop, Deputy Bartram approached the passenger side of Defendant’s

13 vehicle, spoke to Defendant, who was the driver of the vehicle, and detected the smell

14 of alcohol emanating from inside the vehicle. As Michelle Martinez, the only

15 passenger in the vehicle, spoke to the deputy, the deputy noticed that the smell of

16 alcohol was coming from her. The deputy also observed that Ms. Martinez had

17 bloodshot, watery eyes, and she was holding a glass containing brown liquid and ice

18 cubes on her lap. Although Deputy Bartram did not determine the contents of the

19 glass, he testified that it smelled like an alcoholic beverage.


                                              2
 1   {3}   After receiving identification from Defendant and Ms. Martinez, Deputy

 2 Bartram returned to his vehicle to run a warrant check of the two individuals. He

 3 determined that there were no warrants for Defendant; however, there was at least one

 4 arrest warrant for Ms. Martinez.

 5   {4}   Deputy Bartram returned to Defendant’s vehicle, asked Ms. Martinez to get out,

 6 and as she did so, she placed the glass with brown liquid and ice cubes on the

 7 floorboard in front of her seat. The officer arrested Ms. Martinez, escorted her to his

 8 patrol car, and issued her an open container citation. Deputy Bartram then ordered

 9 Defendant to get out of the vehicle, patted him down for weapons and contraband,

10 took him to the front of the deputy’s patrol car and instructed him to stand there, and

11 then issued him a citation for speeding. Defendant had no weapons or contraband on

12 his person. At that time, Defendant was not handcuffed.

13   {5}   Previously, Ms. Martinez had asked the deputy to get her wallet from

14 Defendant’s vehicle. While Defendant was standing near the deputy’s patrol car, the

15 deputy returned to Defendant’s vehicle to retrieve Ms. Martinez’s wallet from the

16 dashboard and to remove Ms. Martinez’s glass, containing her drink, from the vehicle.

17 As he bent down to pick up the glass from the floorboard, Deputy Bartram observed

18 a small square baggie that had a “crystal-like substance inside of it” in a storage

19 compartment under the radio. He seized the baggie, which he believed contained


                                              3
 1 methamphetamine, returned to his patrol car where Defendant was still standing, and

 2 asked Defendant about the baggie. Defendant informed the officer that “it’s possible

 3 it could be mine.” At the end of their conversation, which lasted one to two minutes,

 4 the deputy placed Defendant under arrest. Defendant’s vehicle was towed, and during

 5 an inventory search of his vehicle, law enforcement officers found 32.172 grams of

 6 methamphetamine, two pipes, and a black digital scale.

 7   {6}   Defendant was charged with trafficking by possession with intent to distribute

 8 methamphetamine, possession of drug paraphernalia, and speeding. Prior to trial,

 9 Defendant filed motions to suppress the evidence and his statements to Deputy

10 Bartram under the Federal and State Constitutions. In response, the State claimed that

11 Deputy Bartram was justified in seizing what appeared to be an alcoholic beverage

12 from Defendant’s vehicle, which he observed in plain view, and while removing the

13 glass containing this beverage, the deputy saw the methamphetamine in plain view.

14 Additionally, the State asserted that the statements should not be suppressed because

15 Defendant was not in custody when he made the statements.

16   {7}   After a hearing, the district court denied the motions to suppress, the case

17 proceeded to a jury trial, and Defendant was found guilty of trafficking by possession

18 with intent to distribute methamphetamine and possession of drug paraphernalia. It is




                                              4
 1 from these convictions that he now appeals. Additional facts will be provided as

 2 necessary in our discussion of the issues.



 3 II.     DISCUSSION

 4 A.      Defendant’s Motion to Suppress Evidence Obtained From His Vehicle

 5   {8}   Defendant argues that the district court erred in denying his motion to suppress

 6 evidence, including any controlled substances and drug paraphernalia obtained from

 7 his vehicle, because he claims that Deputy Bartram’s search of his vehicle and seizure

 8 of alleged contraband was in violation of the Fourth Amendment to the United States

 9 Constitution and Article II, Section 10 of the New Mexico Constitution.

10   {9}   We review the denial of a motion to suppress as a mixed question of fact and

11 law. State v. Williams, 2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307. “We

12 determine whether the law was correctly applied to the facts, viewing the facts in the

13 light most favorable to the prevailing party.” State v. Bravo, 2006-NMCA-019, ¶ 5,

14 139 N.M. 93, 128 P.3d 1070 (alteration, internal quotation marks, and citation

15 omitted); see also State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856

16 (stating that “[t]he appellate court must defer to the district court with respect to

17 findings of historical fact so long as they are supported by substantial evidence”).




                                                5
 1   {10}   In this case, the district court included findings of fact in its order denying

 2 Defendant’s motions to suppress. These findings are not challenged on appeal. Thus,

 3 we accept the district court’s factual findings and address de novo whether the search

 4 and seizure of evidence were legal in this case. See Davis v. Devon Energy Corp.,

 5 2009-NMSC-048, ¶ 13, 147 N.M. 157, 218 P.3d 75 (“When there are no challenges

 6 to the district court’s factual findings, [the appellate courts] accept those findings as

 7 conclusive.”); see also Rule 12-318(A)(4) NMRA (stating that an appellant’s brief in

 8 chief “shall set forth a specific attack on any finding, or the finding shall be deemed

 9 conclusive” and that a contention that a finding is not supported by substantial

10 evidence shall be deemed waived “unless the argument identifies with particularity

11 the fact or facts that are not supported by substantial evidence”).

12   {11}   “Article II, Section 10 of the New Mexico Constitution gives broader protection

13 to individuals in the area of automobile searches than is provided by the Fourth

14 Amendment of the United States Constitution.” State v. Bomboy, 2008-NMSC-029,

15 ¶ 5, 144 N.M. 151, 184 P.3d 1045. “The Fourth Amendment allows a warrantless

16 search of an automobile and of closed containers found within an automobile when

17 there is probable cause to believe that contraband is contained therein.” Id. However,

18 “New Mexico has rejected this bright line exception to the warrant requirement and

19 requires ‘a particularized showing of exigent circumstances’ in order to conduct a


                                               6
 1 warrantless search of an automobile and its contents.” Id. (quoting State v. Gomez,

 2 1997-NMSC-006, ¶ 39, 122 N.M. 777, 932 P.2d 1).

 3   {12}   “Absent exigent circumstances or some other exception to the warrant

 4 requirement, an officer may not search an automobile without a warrant.” Id. ¶ 17; see

 5 also State v. Duffy, 1998-NMSC-014, ¶ 61, 126 N.M. 132, 967 P.2d 807 (stating that

 6 “[a]mong the recognized exceptions to the warrant requirement are exigent

 7 circumstances, consent, searches incident to arrest, plain view, inventory searches,

 8 open field, and hot pursuit”), overruled on other grounds by State v. Tollardo,

 9 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. “However, if following a lawful stop on a

10 roadway, an item in an automobile is in plain view and the officer has probable cause

11 to believe the item is evidence of a crime, the officer may seize the item.” Bomboy,

12 2008-NMSC-029, ¶ 17; see also State v. Ochoa, 2004-NMSC-023, ¶ 9, 135 N.M. 781,

13 93 P.3d 1286 (“Under the plain view exception to the warrant requirement, items may

14 be seized without a warrant if the police officer was lawfully positioned when the

15 evidence was observed, and the incriminating nature of the evidence was immediately

16 apparent, such that the officer had probable cause to believe that the article seized was

17 evidence of a crime.”).

18   {13}   In this case, Deputy Bartram stopped Defendant for driving fifty-three miles per

19 hour in a forty-five mile-per-hour speed zone. The deputy approached the passenger


                                                7
 1 side of the vehicle and observed that Defendant was the driver and there was a female

 2 passenger in the front seat. From that vantage point, the deputy observed that the

 3 passenger had bloodshot, watery eyes; she had an odor of alcohol; and she was

 4 holding a glass with ice and a brown liquid, in plain view, that looked like and smelled

 5 like an alcoholic beverage. In New Mexico, it is illegal to consume or possess an

 6 alcoholic beverage in a motor vehicle. NMSA 1978, § 66-8-138 (2013).1 Therefore,

 7 we conclude that the deputy had probable cause to believe that the glass and its

 8 contents were evidence of a crime, and the deputy was justified in seizing the glass

 9 from Defendant’s vehicle. See Bomboy, 2008-NMSC-029, ¶ 17; see also Ochoa,

10 2004-NMSC-023, ¶ 9 (“Probable cause exists when the facts and circumstances

11 warrant a belief that the accused had committed an offense, or is committing an

12 offense.”).

13   {14}   When Deputy Bartram bent down to retrieve the glass from the floorboard,

14 which is where the passenger had placed the glass before she was arrested for an

15 outstanding warrant, he saw a baggie “with a crystalline substance that was located

16 in an open air bin on the console between the driver and passenger seat near the gear

17 shift.” The deputy believed the baggie contained methamphetamine and seized it. We



          1
18          We note that this statute was last amended, effective June 14, 2013, which was
19 after the arrest in this case. However, the amendment does not change our analysis.

                                              8
 1 conclude that Deputy Bartram was lawfully positioned when he observed the baggie,

 2 the incriminating nature of the baggie “with a crystalline substance” was immediately

 3 apparent, and the deputy had probable cause to seize the baggie. See Bomboy,

 4 2008-NMSC-029, ¶ 17; Ochoa, 2004-NMSC-023, ¶ 9.

 5   {15}   Based on the facts in this case, we conclude that seizure of both the glass and

 6 the baggie were justified by the plain view exception to the warrant requirement. We

 7 note that, based on Defendant’s claim that the seizure of the glass and baggie were

 8 illegal, he argues that all evidence collected thereafter was the fruit of an unlawful

 9 search or seizure and should have been suppressed. See State v. Ingram,

10 1998-NMCA-177, ¶ 9, 126 N.M. 426, 970 P.2d 1151 (“Evidence which is obtained

11 as a result of an unconstitutional search or seizure may be suppressed under the

12 exclusionary rule.” (internal quotation marks and citation omitted)). This argument

13 lacks merit for two reasons. First, as discussed above, the seizure of the glass and the

14 baggie were lawful. Second, after Defendant was arrested, additional evidence was

15 obtained through an inventory search, which is a recognized exception to the warrant

16 requirement, and Defendant is not challenging the inventory search on appeal. See

17 Duffy, 1998-NMSC-014, ¶ 61 (recognizing inventory searches as an exception to the

18 warrant requirement). We conclude that the district court did not err in denying

19 Defendant’s motion to suppress the evidence obtained from his vehicle.


                                               9
 1 B.       Defendant’s Motion to Suppress His Statements to Deputy Bartram

 2   {16}   Defendant also moved to suppress his statement to Deputy Bartram that it was

 3 possible that the small square baggie could be his, which he claims was evidence

 4 obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). See State v. King,

 5 2013-NMSC-014, ¶ 3, 300 P.3d 732 (“In Miranda, the United States Supreme Court

 6 articulated a warning that law enforcement must give to a suspect before the suspect

 7 can be subjected to a custodial interrogation without compromising the suspect’s

 8 privilege against self-incrimination.” (citing Miranda, 384 U.S. at 478-79)). The

 9 district court denied the motion, finding that Defendant was not in custody when he

10 made this statement.

11   {17}   On appeal, Defendant argues that he was subject to a custodial interrogation,

12 and Deputy Bartram should have advised him of his rights against self-incrimination

13 before questioning him. He asserts that the deputy removed him from his vehicle,

14 patted him down for weapons or contraband, ordered him to stand near the deputy’s

15 patrol car, and subjected him to questioning designed to elicit incriminating

16 information. Defendant proceeds to argue that he did not feel free to get back into his

17 vehicle and leave. The State argues that Defendant was not in custody when he told

18 Deputy Bartram that the baggie of suspected methamphetamine could be his.




                                              10
 1   {18}   “In reviewing a district court’s ruling on a motion to suppress, we observe the

 2 distinction between factual determinations[,] which are subject to a substantial

 3 evidence standard of review[,] and application of law to the facts, which is subject to

 4 de novo review.” Bravo, 2006-NMCA-019, ¶ 5 (alteration, internal quotation marks,

 5 and citation omitted). “Determining whether or not a police interview constitutes a

 6 custodial interrogation requires the application of law to the facts.” State v. Nieto,

 7 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442. Because the facts are not in

 8 dispute, we review de novo whether Defendant was subject to a custodial

 9 interrogation. See id.

10   {19}   Generally, “[t]he roadside questioning of a motorist pursuant to a routine traffic

11 stop does not constitute custodial interrogation.” Armijo v. State ex rel. Transp. Dep’t,

12 1987-NMCA-052, ¶ 6, 105 N.M. 771, 737 P.2d 552. However, “Miranda warnings

13 are required after a traffic stop . . . if [the] defendant can demonstrate that, at any time

14 between the initial stop and the arrest, he was subjected to restraints comparable to

15 those associated with a formal arrest.” Id. (internal quotation marks and citation

16 omitted).

17   {20}   To determine whether an individual is in custody for Miranda purposes, “the

18 court must apply an objective test to resolve the ultimate inquiry: was there a formal

19 arrest or restraint of freedom of movement of the degree associated with a formal


                                                11
 1 arrest.” State v. Wilson, 2007-NMCA-111, ¶ 23, 142 N.M. 737, 169 P.3d 1184

 2 (internal quotation marks and citation omitted). In the present case, Defendant was not

 3 formally arrested when he told Deputy Bartram that the small square baggie could be

 4 his. Thus, we must “engage in a fact-specific analysis of the totality of the

 5 circumstances under which the questioning took place in order to decide whether the

 6 custody requirement is met.” State v. Olivas, 2011-NMCA-030, ¶ 10, 149 N.M. 498,

 7 252 P.3d 722.

 8   {21}   Following the suppression hearing, the district court found that, after retrieving

 9 the small square baggie of suspected methamphetamine from Defendant’s vehicle,

10 Deputy Bartram spoke with Defendant for one to two minutes; their conversation was

11 non-confrontational; Deputy Bartram was several feet away from Defendant during

12 the encounter with the corner of the car between them; and the conversation occurred

13 on a street with traffic. These findings are not challenged on appeal; therefore, we

14 accept them as conclusive. See Davis, 2009-NMSC-048, ¶ 13; see also Rule

15 12-318(A)(4) (establishing that uncontested findings are conclusive). Based on the

16 facts in this case, we are not persuaded that Defendant was subjected to a custodial

17 interrogation when Deputy Bartram asked him if the baggie belonged to him. See

18 State v. Javier M., 2001-NMSC-030, ¶ 15, 131 N.M. 1, 33 P.3d 1 (“Custodial

19 interrogation occurs when an individual is swept from familiar surroundings into


                                                12
 1 police custody, surrounded by antagonistic forces, and subjected to the techniques of

 2 persuasion so that the individual feels under compulsion to speak.” (omission,

 3 alterations, internal quotation marks, and citation omitted)).

 4   {22}   Although Defendant does not dispute the factual details determined by the

 5 district court, he contends that he did not feel free to return to his vehicle and leave,

 6 and at the time that Deputy Bartram asked him about the baggie, the deputy knew that

 7 he was going to arrest Defendant. We do not consider these subjective factors. See

 8 Nieto, 2000-NMSC-031, ¶ 20 (“Custody is determined objectively, not from the

 9 subjective perception of any of the members to the interview.”); State v. Munoz,

10 1998-NMSC-048, ¶ 40, 126 N.M. 535, 972 P.2d 847 (“The test is objective: the actual

11 subjective beliefs of the defendant and the interviewing officer on whether the

12 defendant was free to leave are irrelevant.” (internal quotation marks and citation

13 omitted)). In Armijo, this Court held that a driver was not in custody during a traffic

14 stop, even though a police officer testified that, in his view, the driver was not free to

15 leave, because “the police officer’s subjective state of mind is not the appropriate

16 standard for determining whether an individual has been deprived of his freedom of

17 movement in any significant way.” 1987-NMCA-052, ¶¶ 1, 4, 7, 10-12.

18   {23}   We conclude that Defendant was not subject to a restraint on his freedom of

19 movement of a degree associated with a formal arrest. Therefore, Defendant was not


                                               13
 1 entitled to Miranda warnings, and the district court did not err in denying his motion

 2 to suppress his statements.

 3 C.       Motion for a Mistrial

 4   {24}   Defendant argues that the district court abused its discretion in denying his

 5 motion for a mistrial after the State improperly vouched for its case in its closing

 6 argument. During the State’s rebuttal argument, the prosecutor referred to Instruction

 7 No. 2 and emphasized to the jury: “You are the sole judges of the facts in this case.”

 8 [1-13-15 Tr. 124:7-9; RP 81] The prosecutor proceeded to say: “A lot of times the

 9 defense counsel wanted to talk about tow inventories or Miranda or something to that

10 nature. That’s already been decided on. If there was a bad search, if there was an

11 involuntary confession, the judge wouldn’t let it be here today.” Defense counsel

12 objected, and during a bench conference, argued that the State was improperly

13 bolstering and moved for a mistrial with a finding of prosecutorial misconduct. The

14 district court sustained the objection, denied the request for a mistrial, and instructed

15 the jury to disregard the State’s last sentence. The State continued to make its rebuttal

16 argument and stated:

17                 As I was saying, again, the instruction is clear. You are the sole
18          judges of the facts in this case. That means you should not be discussing
19          whether a search warrant wasn’t supposed to happen, whether Miranda
20          warnings were supposed to be read. You are merely here to look at the
21          testimony, again, and the evidence. Search warrants and Miranda are
22          irrelevant in this case. You are the sole judges of the facts alone.

                                               14
 1 Defense counsel did not object to these latter statements. On appeal, Defendant argues

 2 that both sets of statements—the statements before the bench conference and the

 3 statements after the bench conference—were improper vouching “and led to an

 4 improper and unfair verdict.”

 5   {25}   “Where error is preserved at trial, an appellate court will review under an abuse

 6 of discretion standard.” State v. Sosa, 2009-NMSC-056, ¶ 26, 147 N.M. 351, 223 P.3d

 7 348. “Where counsel fails to object, the appellate court is limited to a fundamental

 8 error review.” Id.; see also Rule 12-321(B)(2)(c) NMRA (providing that if a question

 9 for review is not preserved, an appellate court may, “in its discretion” address

10 questions involving “fundamental error”). Defendant preserved his claim of improper

11 vouching as to the statements before the bench conference; however, he did not

12 preserve his claim of improper vouching as to the statements after the bench

13 conference. See State v. Salazar, 2006-NMCA-066, ¶ 20, 139 N.M. 603, 136 P.3d

14 1013 (“We have often stated that a prompt objection and ruling by the trial court goes

15 a long way to curing prosecutorial vouching.”); State v. Pennington,

16 1993-NMCA-037, ¶ 32, 115 N.M. 372, 851 P.2d 494 (“A timely objection allows the

17 trial court to assess the prejudicial nature of the statements and take curative steps,

18 such as admonishing the prosecutor.”). Because Defendant did not argue that the

19 statements made after the bench conference were fundamental error, we will not


                                               15
 1 consider these statements. See Salazar, 2006-NMCA-066, ¶ 20 (declining to address

 2 the merits of the defendant’s claim of improper vouching after noting that the claim

 3 had not been preserved and that the defendant did not argue that it was fundamental

 4 error).

 5   {26}    The New Mexico Supreme Court has articulated three factors to consider when

 6 reviewing questionable statements made during closing arguments for error: “(1)

 7 whether the statement invade[d] some distinct constitutional protection; (2) whether

 8 the statement [was] isolated and brief, or repeated and pervasive; and (3) whether the

 9 statement [was] invited by the defense.” Sosa, 2009-NMSC-056, ¶ 26. After

10 discussing these three factors, our Supreme Court stated that while the factors are

11 “useful guides, . . . context is paramount.” Id. ¶ 34. “Where evidence of guilt is

12 overwhelming, or an improper statement is corrected by counsel or the court,

13 reversible error is less likely.” Id. If, however, the prosecutor’s “comments materially

14 altered the trial or likely confused the jury by distorting the evidence,” the state has

15 deprived the defendant of a fair trial, and reversal is warranted. Id. “Only in the most

16 exceptional circumstances should [the appellate courts], with the limited perspective

17 of a written record, determine that all the safeguards at the trial level have failed. Only

18 in such circumstances should [the appellate courts] reverse the verdict of a jury and

19 the judgment of a trial court.” Id. ¶ 25.


                                               16
 1   {27}   In the present case, Defendant did not address the three factors on appeal.

 2 Instead, Defendant’s central contention is that the improper statements “led to an

 3 improper and unfair verdict.” We are not persuaded by this argument, particularly

 4 given the fact that the improper statement was corrected by the district court. See id.

 5 (stating that “a trial court can correct any impropriety by striking statements and

 6 offering curative instructions”). We note that, “[b]ecause trial judges are in the best

 7 position to assess the impact of any questionable comment, [the appellate courts]

 8 afford them broad discretion in managing closing argument.” Id.; see also State v.

 9 Chamberlain, 1991-NMSC-094, ¶ 26, 112 N.M. 723, 819 P.2d 673 (explaining that

10 district courts are given wide discretion in controlling closing statements, and a

11 reviewing court will not conclude there is reversible error absent an abuse of

12 discretion). Here, Defendant has not demonstrated that the district court abused its

13 discretion in denying his motion for a mistrial based on the brief and isolated

14 statements by the prosecutor. See State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M.

15 393, 981 P.2d 1211 (stating that we presume correctness in the district court’s rulings

16 and the burden is on the appellant to demonstrate the district court’s error); see also

17 State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (“An abuse of

18 discretion occurs when the ruling is clearly against the logic and effect of the facts and

19 circumstances of the case. We cannot say the trial court abused its discretion by its


                                               17
 1 ruling unless we can characterize it as clearly untenable or not justified by reason.”

 2 (internal quotation marks and citation omitted)); Sosa, 2009-NMSC-056, ¶ 31 (“[O]ur

 3 appellate courts have consistently upheld convictions where a prosecutor’s

 4 impermissible comments are brief or isolated.”).

 5   {28}   Accordingly, we conclude that the district court did not abuse its discretion in

 6 denying Defendant’s motion for a mistrial.

 7 III.     CONCLUSION

 8   {29}   For the foregoing reasons, we affirm.

 9   {30}   IT IS SO ORDERED.

10                                           __________________________________
11                                           TIMOTHY L. GARCIA, Judge


12 WE CONCUR:


13 _______________________________
14 LINDA M. VANZI, Chief Judge


15 _______________________________
16 JONATHAN B. SUTIN, Judge




                                               18
