                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JAN 5 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.
                                                       No. 99-3305
                                               (D.C. No. 98-40116-02-RDR)
 JUSTINO HERNANDEZ-
                                                       (Dist. Kan.)
 DOMINGUEZ,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before EBEL and BRISCOE, Circuit Judges and COOK, Senior District Judge. **


      After a jury trial, Appellant Justino Hernandez-Dominguez (“Dominguez”)

was convicted of possession with intent to distribute and conspiracy with intent to

distribute approximately 1,992 grams of a mixture containing methamphetamine.

Dominguez now appeals the district court’s denials of his motion to suppress and




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
        The Honorable H. Dale Cook, Senior District Judge, United States District
Court for the Northern District of Oklahoma, sitting by designation.
his motion for judgment of acquittal, arrest of judgment, and new trial. We

affirm.

                                 BACKGROUND

      On October 23, 1998, Dominguez and Ivan Hernandez-Mercado

(“Mercado”) were stopped for a traffic violation on Interstate 70 in Lincoln

County, Kansas. The officer had observed the vehicle crossing the center line of

the highway three times. Upon request, Mercado, the driver of the car, provided

the officer with his license, registration, and proof of insurance. The officer

spoke to the two men in English and Spanish. 1 Mercado spoke English and

Spanish when responding to the officer’s questions, and the officer testified that

he did not have problems communicating with Mercado. The officer spoke

mostly Spanish when communicating with Dominguez, who seemed to have more

trouble speaking English.

      The officer had Mercado sit in his car while he ran checks on Mercado’s

license and verified that Mercado was the owner of the vehicle. In response to

the officer’s questioning, Mercado told the officer that he and Dominguez had

been in Los Angeles attending his cousin’s wedding for two days, and were

driving from Los Angeles to Atlanta. The officer noticed that Mercado appeared


      1
       Although the officer who made the stop is not fluent in Spanish, he had
taken 40 hours of “street Spanish” through the Kansas Highway Patrol Training
Academy as well as several semesters of Spanish in high school.

                                         -2-
nervous as he was asking him questions, and that Mercado was avoiding eye

contact. When the officer asked Mercado where he worked, Mercado first said

Los Angeles, and then changed his answer to Atlanta. Although Mercado told the

officer he had been living in Atlanta for the past three months, he had a driver’s

license issued just three months earlier from Miami Beach, Florida. The officer

asked Mercado if he had a green card and Mercado responded that he did not.

The officer asked Mercado if he was an illegal alien, and Mercado indicated he

was by nodding his head. At that point, dispatch advised the officer that Mercado

had a valid license and no criminal history. The officer then told Mercado he

could take a seat back in his own vehicle.

      The officer had Dominguez take a seat in the patrol car. As this was

happening, Mercado opened the trunk of his car without being asked to do so.

The officer told Mercado to close the trunk. At this time, the officer noticed that

both Mercado and Dominguez had pagers on their belts. The officer asked

Dominguez for identification, and he responded that he had none. The officer

asked Dominguez if he had a green card, and he responded that he did not. The

officer ultimately obtained from Dominguez a Mexican federal ID card indicating

his name and date of birth. A check revealed that there were no warrants under

that name and date of birth. In response to the officer’s questions, Dominguez

stated that he and Mercado had been in Los Angeles visiting their friend Roberto,


                                         -3-
but could not give a specific answer as to how many days they had been in Los

Angeles.

      The officer gave Mercado a warning for the traffic violations and asked if

he could ask a few more questions before Mercado left. Mercado agreed. The

officer obtained voluntary consent to search the car from both Dominguez and

Mercado. During the search, the officer looked in the trunk and saw a spare

battery, which raised his suspicions because he had heard of narcotics being

smuggled in batteries. The officer then looked under the hood, pulled the top off

of the battery, and found vacuum packed packages of methamphetamine. At that

point, the officer placed Mercado and Dominguez under arrest and Mirandized

them in English. They were transported to the Lincoln County Jail, where both

were again Mirandized, this time in Spanish by a native Spanish speaking officer.

      The two men were then interviewed separately. During those interviews,

Mercado told the officers that he and Dominguez were working for someone in

Los Angeles named La Bota. He also told them that on October 28, 1998, he and

Dominguez met with an unknown individual in the parking lot of a Los Angeles

mall, where their car battery was removed and replaced with a device that

appeared to be a battery, but in fact contained a false compartment packed with

methamphetamine. Mercado further told the officers that Dominguez was the

main contact who “set the load of methamphetamine up.” Mercado also told the


                                        -4-
officers that he and Dominguez were supposed to get $3,000 for delivering the

battery to La Bota’s brother in Atlanta.

      Dominguez separately told the officers that he knew of the agreement to

transport the methamphetamine, and that he knew the designated recipient of the

drugs. He also said that he had introduced Mercado to the recipient. Dominguez

told the officers the name of the apartment complex where the recipient lived and

showed them La Bota’s number on his pager. He also explained to them how the

false compartment worked on the battery. Dominguez further admitted to being

present in the Los Angeles parking lot where the battery was removed from the

car and replaced with the new battery containing the methamphetamine.

Dominguez also told the officers that he was the one who actually owned the

vehicle in which he and Mercado were traveling, and that the car was registered

in Mercado’s name only because Mercado had a valid driver’s license and

Dominguez did not.

      On December 16, 1998, Dominguez and Mercado were indicted in the

United States District Court for the District of Kansas. Count I of the indictment

alleged that defendants Mercado and Dominguez knowingly and intentionally

possessed, with the intent to distribute, approximately 1,992 grams of a mixture or

substance containing a detectable amount of methamphetamine, in violation of 21

U.S.C. § 841(a)(1). Count II alleged that on or about October 20, 1998, and


                                           -5-
continuing until October 23, 1998, Mercado and Dominguez knowingly, willfully,

and unlawfully conspired to possess with intent to distribute approximately 1,992

grams of a mixture or substance containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. § 846.

      The defendants moved to suppress the drugs found in the vehicle and the

statements they gave to the authorities, claiming they were illegally detained. The

district court denied the motion. At Dominguez’s jury trial, 2 the court submitted

instructions to the jury that did not contain a venue instruction. Dominguez did

not object to the lack of such an instruction. The jury found Dominguez guilty of

both charges.

      On June 11, 1999, Dominguez filed a motion for acquittal, arrest of

judgment, and new trial, based upon the argument that the jury instructions did

not contain a venue instruction. The district court denied that motion.

Dominguez was sentenced to serve 188 months in prison on each count, with the

time to be served concurrently.




      2
          Mercado entered into a plea agreement with the government.

                                         -6-
                                  DISCUSSION

I.    Denial of Motion to Suppress

      On appeal, Dominguez challenges the district court’s denial of his motion

to suppress the drugs found in the car and the statements he subsequently gave to

the troopers. Specifically, Dominguez argues that the officer should have

released Mercado and Dominguez after he determined that Mercado’s license was

valid and there were no outstanding warrants. He asserts that anything discovered

after that point should have been suppressed as the result of an illegal detention.

      In reviewing the denial of a motion to suppress, we accept the factual
      findings of the district court unless they are clearly erroneous. The
      ultimate determination of reasonableness under the Fourth
      Amendment, however, is a question of law which we review de novo.
      We view the evidence in the light most favorable to the district
      court’s determination.

United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997) (internal citations

omitted).

      Dominguez does not challenge the validity of the initial stop. The stop was

valid because it was based upon a traffic violation observed by the officer: failure

to maintain a single lane of traffic under Kan. Stat. Ann. § 8-1522. See also

Whren v. United States, 517 U.S. 806 (1996).

      An officer conducting a routine traffic stop may legitimately detain a driver

while requesting a driver’s license and vehicle registration, running a computer

check, and issuing a citation. See United States v. Hunnicutt, 135 F.3d 1345,

                                         -7-
1349 (10th Cir. 1998). “Once the driver produces a valid license and proof that

[he] is entitled to operate the car, the driver must be permitted to proceed.”

United States v. Jones, 44 F.3d 860, 872 (10th Cir. 1995). An officer may only

lengthen the stop for questioning beyond that related to the initial stop if (1) the

officer has an objectively reasonable and articulable suspicion that illegal activity

has occurred or is occurring, or (2) the initial detention has become a consensual

encounter. See Hunnicutt, 135 F.3d at 1349. The government concedes that the

officer’s questioning of Dominguez, after he had determined that Mercado’s

license was valid, was beyond the scope of and unrelated to the initial stop. The

government also concedes that the stop had not been transformed into a

consensual encounter at this point. Thus, the question before us is whether the

officer had an objectively reasonable and articulable suspicion that illegal activity

had occurred or was occurring. We agree with the district court that he did.

      The determination of whether investigative detention beyond the scope of

the initial stop is supported by an objectively reasonable suspicion of illegal

activity “does not depend upon any one factor but on the totality of the

circumstances.” Jones, 44 F.3d at 872 (citing United States v. Soto, 988 F.2d

1548, 1555 (10th Cir. 1993). We make this determination “with deference to a

trained law enforcement officer’s ability to distinguish between innocent and

suspicious circumstances.” United States v. Mendez, 118 F.3d 1426, 1431 (10th


                                          -8-
Cir. 1997). Here, while the officer was checking Mercado’s license and

registration, Mercado revealed that he was an illegal alien. Further detention of

Mercado was therefore justified, as was the questioning of Dominguez. See

United States v. Salinas-Calderon, 728 F.2d 1298, 1301 n.3 (10th Cir. 1984)

(stating that “[a] state trooper [who has executed a lawful stop] has general

investigatory authority to inquire into possible immigration violations”).

Moreover, the officer testified to several factors that caused him to suspect illegal

activity:

       [Mercado] was coming from Los Angeles, which is a major
       distribution point for the United States for narcotics. He had said he
       – he had told me that his cousin – he went out to see his cousin, who
       got married last week, but he had only been in L.A. for two days, and
       if they’re driving all night, we’re probably looking at two more days
       for their trip back. He was nervous and avoided eye contact as I
       spoke with him. He’s up on I-70, which is a couple hundred miles
       out of his way. Didn’t make sense to me why he would be clear up
       here for that route back home. They had pagers on their belts, a cell
       phone in the car.

Based on his experience, 3 the officer perceived these factors as “indicators of

narcotics smuggling.” Further contributing to the officer’s suspicions were the




       3
        The officer in question testified that he was experienced in narcotics
interdiction and had conducted between 30 to 50 narcotics interdiction stops. His
narcotics interdiction training included at least eight hours in the Highway Patrol
basic training academy, and approximately two weeks of advanced highway
criminal interdiction training.

                                         -9-
facts that Mercado gave inconsistent statements about the city in which he

worked, appeared nervous, and avoided eye contact.

      The factors cited by the officer have been acknowledged as factors that can

give rise to reasonable suspicion. Unusual or implausible travel plans, such as the

very brief stay in Los Angeles despite the lengthy drive back to Atlanta, and the

indirect path being taken to get to Atlanta, can contribute to a reasonable

suspicion of illegal activity. See Mendez, 118 F.3d at 1431; United States v.

Wood, 106 F.3d 942, 946-47 (10th Cir. 1997). Inconsistent statements may also

give rise to reasonable suspicion of illegal activity. See Wood, 106 F.3d at 947

(“As with unusual travel plans, inconsistencies in information provided to the

officer during the traffic stop may give rise to reasonable suspicion of criminal

activity.”). The fact that travel commenced in a city such as Los Angeles, which

is known for drug trafficking, may factor into the assessment. See United States

v. Espinosa, 782 F.2d 888, 891 (10th Cir. 1986). Although Mercado’s

nervousness and failure to make eye contact is rarely the kind of factor that is

dispositive in the inquiry, it can contribute to reasonable suspicion. See United

States v. Kopp, 45 F.3d 1450, 1454 (10th Cir. 1995); United States v. Soto, 988

F.2d 1548, 1554 (10th Cir. 1993). Pagers and cell phones, again, while not

dispositive, may be indicative of illegal activity because they are known tools of




                                         -10-
the drug trade. See United States v. Slater, 971 F.2d 626, 637 (10th Cir. 1992)

(stating that a cell phone is a “recognized tool of the trade in drug dealing”).

      When viewed collectively, these factors, which were recognized prior to the

determination that Mercado’s license was valid, support a finding of reasonable

suspicion of illegal activity. The officer therefore had authority to extend the

traffic stop for further questioning, and, once the consent to search was given by

Mercado, the driver of the car, Dominguez, the passenger, could not challenge the

fruits of that search. 4 See Rakas v. Illinois, 439 U.S. 128, 148-49 (1979); United

States v. Lewis, 24 F.3d 79, 81 (10th Cir. 1994). In fact, the record indicates that

Dominguez himself consented to the search. The district court did not err in

denying the motion to suppress.



II.   Denial of Motion for Judgment of Acquittal, Arrest of Judgment, and New
      Trial

      Dominguez’s other argument on appeal is that the district court erred by

failing to grant his motion for judgment of acquittal, arrest of judgment, and new

trial. Dominguez argues that the failure to instruct the jury on the issue of venue



      4
        On appeal, Dominguez did not raise more specific challenges to the
admission of the statements he made after being transported to the Lincoln
County jail. We note, however, that Dominguez was properly Mirandized, and
that there is no credible evidence indicating that his statements to the officers
were involuntary.

                                         -11-
resulted in the charging instructions failing to allege a crime, and that therefore

the convictions and sentence should be vacated.

      We review the denial of a motion for judgment of acquittal de novo,
      viewing the evidence in the light most favorable to the government to
      determine if the jury could have found defendant guilty of the
      essential elements of the crime beyond a reasonable doubt. However,
      when the motion raises a question of venue, we alter the analysis
      somewhat, for unlike other substantive elements of the offense
      charged, the government need only prove venue by a preponderance
      of the evidence.

United States v. Byrne, 171 F.3d 1231, 1234 (10th Cir. 1999) (internal citations

omitted). At oral argument, counsel for Dominguez admitted that he did not

request a venue instruction, and that he consciously and deliberately did not

object when he noticed that there was no venue instruction included in the

proposed instructions.

      “Although venue is a right of constitutional dimension, . . . [w]e have . . .

applied a more relaxed standard for finding waiver of venue rights than for

finding waivers of other constitutional rights in criminal trials. A defendant can

waive venue rights by his inaction.” United States v. Miller, 111 F.3d 747, 749-50

(10th Cir. 1997) (citing Wright, Federal Practice and Procedure § 306, at 219-220

(2d ed. 1982)). Dominguez’s counsel admits that at the jury instruction

conference, he recognized that the instructions did not contain a specific venue

instruction, and that he then intentionally refrained from objecting to those

instructions. We hold that Dominguez has therefore waived his right to contest

                                         -12-
venue. “A waiver is ordinarily an intentional relinquishment or abandonment of a

known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

Counsel’s intentional failure to object to the lack of a venue instruction meets this

definition.

      We further note that the jury must have found that Dominguez possessed

the methamphetamine described in the indictment in the District of Kansas. The

evidence clearly showed that he and his co-defendant were stopped in Kansas in

possession of the drugs. As the district court stated, “It is not theoretically

possible that [the jury] found that defendant possessed the drugs in some other

state (California, for example), but not in Kansas.” With respect to the

conspiracy charge, venue lies “either in the jurisdiction in which the

conspiratorial agreement was formed or in any jurisdiction in which an overt act

in furtherance of the conspiracy was committed by any of the conspirators.”

Miller, 111 F.3d at 753 n.8. The guilty verdict on the conspiracy count

necessarily incorporated a finding that an overt act in furtherance of the

conspiracy, the transporting of the drugs, was committed in Kansas. See United

States v. Carter, 130 F.3d 1432, 1438-39 (10th Cir. 1997) (holding that venue for

a conspiracy conviction was satisfied when the defendant was arrested in New

Mexico in possession of the drugs because the jury necessarily found that an

agreement existed when the defendant committed the overt act of transporting the


                                          -13-
drugs). Therefore, venue was satisfied, and the district court did not err in

denying the motion for judgment of acquittal, arrest of judgment, and new trial.


                                  CONCLUSION

      The district court did not err in denying the motion to suppress and the

motion for judgment of acquittal, arrest of judgment, and new trial. We AFFIRM

the defendant’s conviction.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                         -14-
