                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 16-4252
                          ___________________________

                              United States of America

                                         Plaintiff - Appellee

                                           v.

                                    Jason Claybron

                                        Defendant - Appellant
                                    ____________

                      Appeal from United States District Court
                       for the District of Minnesota - St. Paul
                                   ____________

                            Submitted: October 20, 2017
                             Filed: November 20, 2017
                                   [Unpublished]
                                   ____________

Before WOLLMAN and SHEPHERD, Circuit Judges, and GOLDBERG,1 Judge.
                         ____________
PER CURIAM.

       A jury convicted Defendant-Appellant Jason Claybron on three separate
counts: 1) conspiracy to distribute heroin, 2) possession of heroin with intent to
distribute, and 3) possession of cocaine with intent to distribute. Claybron appeals
on the grounds that: 1) there was clear error with respect to search warrants, the fruits

      1
       The Honorable Richard W. Goldberg, Senior Judge, United States Court of
International Trade, sitting by designation.
of which should have been suppressed; 2) the trial court should have suppressed
evidence that resulted from an alleged unlawfully prolonged traffic stop; 3) at trial,
the court should have excluded certain testimony; and 4) Claybron’s motion for a
mistrial should have been granted due to prosecutorial misconduct. Finding no merit
in these claims, we affirm the decisions of the district court.2

                                 BACKGROUND

       Based on information provided by a confidential informant facing federal
indictment on drug charges, law enforcement obtained warrants to track two cell
phones and a vehicle, a Nissan Juke, associated with Claybron. To safeguard the
identity of the confidential informant, the affidavit in support of the warrants
identified her merely as a “confidential informant” without reference to her pending
federal charges. The confidential informant explained that she had spoken with
Claybron about narcotics transactions at a phone number with a 612 area code and
that she had witnessed Claybron driving in the Nissan Juke. Police also
independently verified Claybron’s association with the vehicle and their tracking of
the 612 number confirmed that Claybron used that phone in conjunction with his
suspected drug operation.

       After observing Claybron’s vehicle make an earlier trip to Chicago, law
enforcement received a tip from the confidential informant that Claybron was again
traveling to Chicago to retrieve heroin. On March 30, 2015, using the tracking
device obtained as a result of the warrant, officers surveilled the Nissan Juke
traveling north from Chicago. Trooper Scott Schneider pulled over the vehicle after
observing several traffic violations, at which time he found four individuals:
Claybron, in the front passenger seat, a driver, and Claybron’s two infant children,
in the back of the car. It quickly became evident that the car was a rental, it was not
rented to either Claybron or the female driver, and the rental period had lapsed.


      2
        The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.

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Claybron maintained that he had permission from the renters of the car, John and
Laura, but they appear to have been fictionalized as the individual in whose name
the car was actually rented did not know Claybron. Trooper Schneider called the
rental company, which indicated its preference that the car be impounded as the
vehicle was overdue.

       Pursuant to policy, prior to impounding the vehicle, the troopers performed
an exterior search around the vehicle with the assistance of a drug dog, but did not
uncover any drugs as a result of those searches. About fifteen minutes into the stop,
Claybron gave the troopers his permission to search the vehicle. At trial, Trooper
Schneider described this as a common occurrence, stating that “[a] true drug
trafficker will give consent to search.” Approximately fifty minutes into the stop,
the driver asked the troopers to recover several of her belongings from the vehicle,
including forty dollars in cash from the cup holder. The troopers complied with the
request and upon retrieving the cash, the cup holder containing the cash came loose,
exposing the area underneath it. There, in plain sight, the troopers uncovered
distribution quantities of cocaine and heroin. Claybron was then arrested and a
subsequent search of an affiliated address produced substantial amounts of cocaine,
heroin, and cash.

       Later that same day, Claybron was questioned by Officer Christopher Nybeck.
After approximately twenty-five minutes during which Claybron provided verifiably
false information, Officer Nybeck terminated the interview and told Claybron that
he would be brought to the federal courthouse the following day to face charges. In
response, Claybron admitted that the first part of the interview was mostly “bullshit”
and resumed the interview in a much more “forthcoming” manner, according to
Officer Nybeck. Claybron then admitted that he had indeed gone to Chicago to
retrieve drugs. The aforementioned charges followed.

      At trial, the prosecution made repeated references to an earlier unrelated case
involving eight defendants, none of which were Claybron, in order to establish the
credibility of the confidential informant and the context from which her tips on


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Claybron’s activity arose. Claybron’s attorney never objected to this testimony and
likewise referenced this separate case both in his opening statement and in
questioning witnesses. After four days of trial, the jury returned a guilty verdict on
all three counts and Claybron was sentenced to seventy-two months in prison.

      Claybron then timely filed this appeal.

                                   DISCUSSION

      A. Search Warrants

       Claybron argues that the omission of the confidential informant’s background
information weighed so heavily on her credibility that, had it been considered, the
warrant would not have issued. “We review the trial court’s findings of fact for clear
error and we give deference to the inferences drawn from those facts by law
enforcement officers, the court that issued the search warrants, and the trial court.”
United States v. Reinholz, 245 F.3d 765, 773 (8th Cir. 2001) (citations omitted). In
order to succeed on this claim, Claybron must demonstrate: 1) either that the
exclusion of the background information was intended to mislead the issuing court
or that the information was omitted with reckless disregard for the affidavit’s
veracity and also 2) that if the information had been included, the court would not
have found probable cause. Id. at 774. Claybron has failed to establish either of
these two elements. The omission of this information is not “so suspect that it
necessarily vitiates probable cause,” see United States v. Ketzeback, 358 F.3d 987,
991 (8th Cir. 2004) (citations omitted), and indeed was reasonable to protect the
identity of the confidential informant. In any event, Claybron can show no prejudice,
as independent facts corroborated the information provided by the confidential
informant. Accordingly, we affirm the district court’s rulings concerning the search
warrants.




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      B. Suppression of Evidence

       Claybron’s argument that evidence should have been suppressed due to an
unlawfully prolonged detention fails because, given the circumstances, the duration
of the traffic stop was reasonable. While Claybron is correct that a “constitutionally
permissible traffic stop can become unlawful . . . ‘if it is prolonged beyond the time
reasonably required to complete’ its purpose,” this is not such a case. See United
States v. Peralez, 526 F.3d 1116, 1119 (8th Cir. 2008) (quoting Illinois v. Caballes,
543 U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005)). Claybron’s stop
required arrangements with the car rental company and an inventory of the car prior
to impounding it, permitting a stop “for a longer duration than when no such
complications arise.” See United States v. Murillo-Salgado, 854 F.3d 407, 415 (8th
Cir. 2017) (internal quotation marks and citations omitted). Additionally,
Claybron’s express consent to a search and the driver’s request that the troopers
search the cup holder each permitted the discovery of the evidence in plain sight.
See, e.g., United States v. Munoz, 590 F.3d 916, 920–921 (8th Cir. 2010) (even if a
stop is impermissibly prolonged, if the encounter becomes consensual, the Fourth
Amendment is not implicated); United States v. Nichols, 344 F.3d 793, 799 (8th Cir.
2003) (per curiam) (the plain view doctrine allows officers to “seize an item if they
have a lawful right of access to the item seized and the object’s incriminating nature
is immediately apparent.”). Because the search was not unlawfully prolonged and
did not exceed the scope of consent, the evidence was properly admitted.

      C. Admission of Testimony at Trial

      This court also is not convinced that the trial court erred in admitting 1)
testimony regarding the unrelated drug conspiracy and 2) comments on both the
typical behavior of “drug traffickers” and a characterization of Claybron’s answers
during questioning as “not honest.” We address each argument in summary fashion.




                                         -5-
          1. Unrelated Drug Conspiracy

       Claybron suggests that the jury was likely to confuse Claybron’s
circumstances with that of another drug conspiracy and, thus, the trial court should
have excluded all references to that separate case. Because Claybron did not make
a timely objection at trial, we review the trial court’s admission of that testimony for
plain error. See United States v. Farrell, 563 F.3d 364, 377 (8th Cir. 2009). There
is scant evidence to suggest “that any unfair prejudice outweighed the probative
value” of this background information. See United States v. Drapeau, 414 F.3d 869,
875 (8th Cir. 2005). In fact, Claybron’s repeated elicitation of testimony similar to
that which he now argues should be excluded is a strong indicator that not even he
found it to be prejudicial. Giving “substantial deference” to the district court’s
admission of this evidence under Rule 403 of the Federal Rules of Evidence, we
affirm the lower court’s decision. See United States v. Condon, 720 F.3d 748, 754–
55 (8th Cir. 2013) (citations omitted).

          2. Statements of Law Enforcement

       Claybron further argues that the district court abused its discretion by failing
to exclude allegedly prejudicial testimony that characterized Claybron’s interview
with law enforcement as “not honest,” as well as that referring to the common
behavior of “drug traffickers.” The district court did not abuse its discretion when
it allowed Officer Nybeck to testify that he found Claybron’s statement to be “not
honest.” The testimony was unlikely to have a prejudicial effect as Claybron himself
described his responses as largely fabricated. But even if the testimony was
prejudicial, any impact was cured when the court instructed the jury to disregard the
testimony. See United States v. Espinosa, 585 F.3d 418, 428 (8th Cir. 2009)
(“Admission of a prejudicial statement is normally cured by striking the testimony
and instructing the jury to disregard the remark.”).

       Whether the trial court erred in allowing Trooper Schneider’s testimony that
a “true drug trafficker” would consent to a traffic search, as Claybron had done, is a


                                          -6-
closer call. However, while that statement may have been more suggestive than
would be desirable, any error in its admission does not rise to the level of abuse of
discretion. Not only is there is no indication that this specific testimony “affected
the defendant’s substantial rights,” but also there was overwhelming evidence
supporting Claybron’s conviction such that any import of this testimony was
exceptionally limited. See United States v. Two Shields, 497 F.3d 789, 792 (8th Cir.
2007); see also United States v. Summage, 575 F.3d 864, 877 (8th Cir. 2009) (“Even
if any rulings were erroneous, they would have had little, if any, effect on the jury’s
verdict, given the strength of the evidence against [defendant].”).

      We therefore affirm the admission of the testimony Claybron now contests.

      D. Motion for a Mistrial

       Claybron takes issue with the trial court’s denial of his motion for a mistrial,
which we review for abuse of discretion. See United States v. O’Dell, 204 F.3d 829,
834 (8th Cir. 2000). Claybron alleges that the prosecutor’s closing argument implied
a shifted burden of proof by suggesting that Claybron should have called certain
witnesses. However, a trial court has broad discretion to guide opening and closing
statements and any misconduct here was mitigated by curative actions taken by the
court and the prosecution, both of which reminded the jury that no burden fell on
Claybron. See United States v. Conrad, 320 F.3d 851, 855 (8th Cir. 2003). That,
combined with the strength of the evidence, indicate that there was insufficient
prejudicial effect to suggest an abuse of discretion. See id. Thus, we affirm the
ruling of the district court.

                                   CONCLUSION

        For the foregoing reasons, this court affirms the decisions of the trial court as
to all issues raised on appeal.
                         ______________________________



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