                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                     PUBLISH
                                                                           SEP 1 1998
                   UNITED STATES COURT OF APPEALS
                                                                       PATRICK FISHER
                                                                               Clerk
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                      No. 97-2238

 JOSE VAZQUEZ-PULIDO,

       Defendant-Appellant.


                 Appeal from the United States District Court
                       for the District of New Mexico
                          (D.C. No. CR-96-210-JP)


Renee L. Camacho (John J. Kelly, United States Attorney, Albuquerque, New
Mexico, with her on the briefs), Special Assistant United States Attorney, Las
Cruces, New Mexico, for Plaintiff-Appellee.

R. Morgan Lyman, Mesilla Park, New Mexico, for Defendant-Appellant.


Before BRORBY, HOLLOWAY and EBEL, Circuit Judges.


BRORBY, Circuit Judge.



      Mr. Jose Vazquez-Pulido appeals his jury conviction in federal district

court for five drug-related offenses. He specifically appeals the district court’s
denial of his motion to suppress evidence seized from him subsequent to his

allegedly unlawful arrest. He also appeals the court’s ruling that allowed the

government to cross-examine his expert witness on mental capacity as to tests

used to determine his competency to stand trial. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.



                                 BACKGROUND

      At roughly 9:00 a.m. on March 19, 1996, Javier Vazquez-Pulido 1 drove into

the Columbus, New Mexico, United States Port of Entry from Mexico. United

States Customs Service agents subsequently searched his vehicle and discovered

approximately eight and a half kilograms of heroin and 329 grams of

methamphetamine. Javier Vazquez-Pulido told agents the vehicle was owned by

his friend. He later stated the vehicle belonged to his brother. When asked about

the inconsistency, he stated the vehicle belonged to a friend and his brother.

During Javier Vazquez-Pulido’s detention, United States Immigration and

Naturalization Inspector Rene Alvarez processed his immigration documents to

determine Javier Vazquez-Pulido’s date of birth, parents’ names, and resident

alien card number.


      1
        We refer to the appellant as Mr. Vazquez-Pulido, and to his brother as
Javier Vazquez-Pulido.


                                         -2-
      At approximately 10:00 a.m. the same day, Mr. Vazquez-Pulido walked into

the Columbus Port of Entry from Mexico. He asked Inspector Alvarez for an

extension of his temporary deferral of inspection card, which would allow him to

enter the United States without the permanent resident alien card that he had lost.

When Inspector Alvarez asked him where he was going, Mr. Vazquez-Pulido

replied he was returning to California. Inspector Alvarez also asked him if he had

any luggage and if he came in a vehicle. Mr. Vazquez-Pulido replied no to both

questions. Inspector Alvarez thought these answers were suspicious.



      Inspector Alvarez informed Mr. Vazquez-Pulido he could reapply for a new

permanent resident alien card by obtaining two photos and paying $75. Mr.

Vazquez-Pulido returned to Mexico to obtain the photos. Meanwhile, Inspector

Alvarez used information from Mr. Vazquez-Pulido’s immigration documents to

complete his resident alien card application.



      As Inspector Alvarez processed Mr. Vazquez-Pulido’s paperwork, he

recognized similarities to information he had processed earlier that morning

concerning Javier Vazquez-Pulido. In particular, he noticed Mr. Vazquez-

Pulido’s place of birth and parents’ names were identical to those of Javier

Vazquez-Pulido. The first four digits of their resident alien numbers were the


                                         -3-
same, indicating the cards probably were issued in the same area. Inspector

Alvarez informed the Customs agents on Javier Vazquez-Pulido’s case of the

similarities. When Mr. Vazquez-Pulido returned to the Port of Entry later that

morning, the Customs agents arrested him.



       Mr. Vazquez-Pulido filed a pretrial motion to suppress evidence resulting

from the allegedly invalid search and seizure of his vehicle and his allegedly

unlawful detention at the Port of Entry. At the suppression hearing, Mr. Vazquez-

Pulido also claimed evidence was seized subsequent to his unlawful arrest. The

district court denied his motions to suppress, finding probable cause existed to

search the vehicle, no unlawful detention occurred, and probable cause supported

the arrest.



       Mr. Vazquez-Pulido’s counsel moved for a competency evaluation pursuant

to 18 U.S.C. § 4241 to determine if Mr. Vazquez-Pulido was competent to stand

trial. Dr. Juan Sosa was appointed to evaluate Mr. Vazquez-Pulido’s competency

to stand trial. Dr. Sosa’s report to the court contained the results of psychological

tests conducted on Mr. Vazquez-Pulido. The court determined Mr. Vazquez-

Pulido competent to stand trial.




                                         -4-
      At trial, Mr. Vazquez-Pulido called Dr. Jorge Vargas, a psychiatrist, as an

expert witness to testify as to his mental capacity to commit the crimes charged.

Dr. Vargas testified that his evaluation consisted of a mental status evaluation

conducted during a ninety-minute interview with Mr. Vazquez-Pulido. He also

testified that he reviewed a forensic report on Mr. Vazquez-Pulido’s mental

functioning. Dr. Vargas testified Mr. Vazquez-Pulido suffered, inter alia, from

depression and a psychosis, which probably existed on the day of his arrest.

Based on his evaluation, Dr. Vargas concluded Mr. Vazquez-Pulido did not have

the specific intent required to commit the crimes charged.



      In its cross-examination of Dr. Vargas, the government inquired about tests

generated during Dr. Sosa’s competency examination. 2 Mr. Vazquez-Pulido

repeatedly objected to this line of questioning, claiming the tests were given

solely for the purpose of determining competency. The district court overruled

his objections, concluding questions regarding Dr. Sosa’s test results were proper

so long as the government did not refer to Mr. Vazquez-Pulido’s competency to



      2
         The government questioned Dr. Vargas about the Bender Gestalt test, the
Wechsler Intelligence Scale test in Spanish, the draw-a-person test, and Mr.
Vazquez-Pulido’s test results. The results indicated Mr. Vazquez-Pulido had
average intelligence and motor skills, nervous system problems, and no major
difficulties with self-perception or social adjustment.


                                         -5-
stand trial.



       Mr. Vazquez-Pulido was subsequently convicted on five drug-related

charges 3 by a jury and sentenced to 262 months imprisonment. We now address

his issues on appeal.



                                    ANALYSIS

Motion to Suppress

       Mr. Vazquez-Pulido argues the district court erred in denying his pretrial

motion to suppress evidence resulting from his allegedly unlawful arrest. 4 He

maintains his warrantless arrest was unlawful because it was not supported by

probable cause. When reviewing a district court’s denial of a motion to suppress,

       3
         Mr. Vazquez-Pulido was charged with: conspiracy to possess with intent
to distribute heroin and methamphetamine in violation of 21 U.S.C. § 846 and 18
U.S.C. § 2; importation of heroin, in violation of 21 U.S.C. §§ 952(a), 960(a)(1),
960(b)(1)(A) and 18 U.S.C. § 2; possession with intent to distribute heroin, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2; importation
of methamphetamine, in violation of 21 U.S.C. § 952(a), 960(a)(1), 960(b)(1)(A)
and 18 U.S.C. § 2; and possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2.

       4
         Evidence seized from Mr. Vazquez-Pulido as a result of his arrest and
introduced at trial included a military identification card in his name, a birth
certificate, and the eventual discovery of the car registration for the car
containing the drugs in Mr. Vazquez-Pulido’s name and in the name of Espinosa
Ramirez.


                                         -6-
we consider the evidence in the light most favorable to the government, and

accept the court’s findings of fact unless they are “clearly erroneous.” United

States v. Anderson, 981 F.2d 1560, 1566 (10th Cir. 1992). “‘The ultimate

determination of reasonableness under the fourth amendment is, however, a

conclusion of law that we review de novo.’” Id. (quoting United States v.

McKinnell, 888 F.2d 669, 672 (10th Cir. 1989)).



      To be lawful, a warrantless arrest must be supported by probable cause to

arrest. Id. “Probable cause to arrest exists when an officer has learned of facts

and circumstances through reasonably trustworthy information that would lead a

reasonable person to believe that an offense has been or is being committed by the

person arrested.” United States v. Guerrero-Hernandez, 95 F.3d 983, 986 (10th

Cir. 1996). In the probable cause determination, we look at the totality of the

circumstances of each particular case. Illinois v. Gates, 462 U.S. 213, 238

(1983); United States v. Hansen, 652 F.2d 1374, 1388 (10th Cir. 1981). Probable

cause to arrest does not require facts sufficient to establish guilt, but does require

more than mere suspicion. Hansen, 652 F.2d at 1388.



      Mr. Vazquez-Pulido first claims the district court’s finding that the

Customs agents knew the car containing the drugs was registered in his name


                                          -7-
when they arrested him is clearly erroneous. “A finding is ‘clearly erroneous’

when, although there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake has been

committed.” Exxon Corp. v. Gann, 21 F.3d 1002, 1005 (10th Cir. 1994)

(quotation marks and citation omitted). According to our review of the record,

the district court’s finding was confirmed, in part, by Javier Vazquez-Pulido’s

statement that the car belonged to his brother and a friend, 5 and the immigration

information indicating Mr. Vazquez-Pulido and Javier Vazquez-Pulido were

brothers. Based on this evidence, we conclude the district court’s finding is not

clearly erroneous.



      Mr. Vazquez-Pulido next contends his relationship to his brother, and his

arrival at the Port of Entry shortly after his brother’s arrest, are insufficient facts

to establish probable cause to arrest him. We agree “mere propinquity to others



      5
         Mr. Vazquez-Pulido further contends his brother’s statement was
unreliable hearsay which could not provide a sufficient basis for probable cause.
Even if true, the finding of probable cause to support an arrest may be based on a
co-defendant’s hearsay statement, in whole or part. Clanton v. Cooper, 129 F.3d
1147, 1155 (10th Cir. 1997) (noting the probable cause determination is made
“under a ‘practical, nontechnical’ totality of the circumstances test” (quoting
Gates, 462 U.S. at 230-32)). Moreover, the agents could have considered the
brother’s statement partly corroborated by Mr. Vazquez-Pulido’s appearance at
the border shortly after his brother. See Gates, 462 U.S. at 241 (recognizing the
value of corroborating details to an informant’s tip in evaluating its veracity).

                                           -8-
independently suspected of criminal activity does not, without more, give rise to

probable cause.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (ruling no probable

cause existed to search tavern patron without facts connecting him to illegal

activity); see also Sibron v. New York, 392 U.S. 40, 62 (1968) (observing no

probable cause existed to detain defendant who spoke to known narcotics addicts

over a period of eight hours, without independent evidence of criminal activity).

Nor is nearness to the place of the arrest of a co-conspirator or to the place of

illegal activity sufficient to establish probable cause. See United States v. Di Re,

332 U.S. 581, 593 (1948) (ruling no probable cause existed to arrest defendant

who merely was present during an illegal transaction that was not visibly

criminal); Anderson, 981 F.2d at 1566 (holding no probable cause existed to

arrest defendant who visited a house suspected to contain drugs, and walked by

the place of arrest of alleged co-conspirators, without additional evidence of

criminal activity).



      However, where there are facts in addition to one’s association with

someone engaged in criminal activity, as in this case, we must consider whether

the “totality of the circumstances” known at the time of the arrest established

probable cause. See United States v. Hillison, 733 F.2d 692, 697 (9th Cir. 1984)

(“In order to find probable cause based on association with persons engaging in


                                          -9-
criminal activity, some additional circumstances from which it is reasonable to

infer participation in criminal enterprise must be shown.”); see also United States

v. Ramirez, 963 F.2d 693, 698-99 (5th Cir.) (ruling probable cause existed where

defendant was not only seen in the company of drug suspects, he was seen

meeting suspects while they engaged in a drug conspiracy, and his behavior was

consistent with the inference he was part of the conspiracy), cert. denied, 506

U.S. 944 (1992).



      According to the district court, the facts known to the Customs agents at

the time of Mr. Vazquez-Pulido’s arrest were: 1) Javier Vazquez-Pulido was

arrested at the Columbus Port of Entry after drugs were found in the vehicle he

was driving; 2) Javier Vazquez-Pulido told Customs agents the vehicle belonged

to his brother and a friend; 3) Mr. Vazquez-Pulido arrived shortly thereafter on

foot and without luggage; and 4) similarities in Mr. Vazquez-Pulido’s and Javier

Vazquez-Pulido’s immigration records indicated they probably were brothers. In

this case, the arresting officers had more than mere association between Mr.

Vazquez-Pulido and Javier Vazquez-Pulido to make their probable cause

determination. The agents also had evidence the brothers were traveling together

in the vehicle containing the drugs, and that the vehicle was partly owned by Mr.

Vazquez-Pulido. From these facts and circumstances, the arresting agents could


                                        -10-
reasonably infer a connection among Mr. Vazquez-Pulido, his brother, and the

drugs found in the car. Reviewing the evidence in the light most favorable to the

government, we conclude the agents had probable cause to arrest Mr. Vazquez-

Pulido. Consequently, we affirm the district court’s denial of his motion to

suppress.



Cross-Examination on Competency Tests

       Mr. Vazquez-Pulido argues the district court erred when it allowed the

government to cross-examine his expert witness with information from the

pretrial competency report. He claims the court erred because the issues of

mental competency and mental capacity to commit a crime are legally distinct.

He points to the comprehensive statutory scheme for determining a defendant’s

competency to stand trial as evidencing Congress’ intent to keep competency

issues separate from trial issues.   6
                                         See 18 U.S.C. §§ 4241 and 4247. He also



       6
         The statutory scheme provides detailed pre-trial procedures for
determinating whether a defendant is competent to stand trial. 18 U.S.C. § 4241.
Any of the parties, or the court sua sponte, may motion for a hearing to determine
if the defendant is mentally competent. Id. § 4241(a). If the court grants the
motion, it may order a psychiatric or psychological examination of the defendant
and require a report be filed by the examiner. Id. § 4241(b). The report must
include all tests employed, and their results. Id. § 4247(c)(2), (A)(4)(A). The
court then determines if the defendant is competent to stand trial, i.e., is able to
understand the nature and consequences of the proceedings against him or is able
to assist in his defense. Id. § 4241(a).

                                              -11-
contends competency tests should not be allowed at trial since but for the

competency evaluation, evidence of the tests would not be before the parties.

Lastly, he argues allowing competency tests to be used against a defendant at trial

will chill defense counsel’s willingness to move for a competency evaluation.



       We review evidentiary rulings for an abuse of discretion. United States v.

Janusz, 135 F.3d 1319, 1323 (10th Cir. 1998). However, when the issue on

appeal is a claim that the district court erred in interpreting the law, we review the

district court’s interpretation de novo. Kelley v. United States, 69 F.3d 1503,

1506 (10th Cir. 1995), cert. denied, 517 U.S. 1166 (1996).



       We are unwilling to adopt a    per se rule making all test results arising from

pretrial competency evaluations inadmissible at trial. We first note the statutory

scheme does not forbid the use of competency tests at trial.   7
                                                                   Second, psychiatric

or psychological tests used to determine competency may be relevant to the



       7
         Section 4241(f) provides: “A finding by the court that the defendant is
mentally competent to stand trial shall not prejudice the defendant in raising the
issue of his insanity as a defense to the offense charged, and shall not be
admissible as evidence in a trial for the offense charged.” 18 U.S.C. § 4241(f).
Mr. Vazquez-Pulido, however, does not claim that the court’s finding prejudiced
him. Rather, he asks us to rule, as a matter of law, that all tests used to determine
competency shall not be used at trial.


                                           -12-
question of a defendant’s mental capacity to commit a crime. Indeed, expert

witnesses may use identical testing procedures for evaluating both the defendant’s

mental competency to stand trial and his mental capacity to commit the crime at

issue. See United States v. Cassidy , 571 F.2d 534, 537 (10th      Cir.), cert. denied ,

436 U.S. 951 (1978).    We see no reason why the difference in standards for

determining mental competency and mental capacity       8
                                                            requires a rule making the

test results of competency determinations     per se inadmissible at trial.



      We think the better approach to determining whether test results from

competency determinations should be admissible at trial is to evaluate the

evidence on a case-by-case basis for relevance, prejudice or confusion of the

issues. See Fed. R. Evid. 402, 403. This approach also is consistent with our

prior case law permitting testimony at trial as to evidence obtained during a

competency evaluation so long as the issues are not confused.        United States v.

Collins , 491 F.2d 1050, 1053 (5th   Cir.) (observing that competent evidence

adduced during a competency hearing can be presented at trial so long as such




      8
         The test for a diminished capacity defense, like that raised by Mr.
Vazquez-Pulido, is the whether the defendant had the mental capacity to form the
specific intent to commit the crime at issue. United States v. Twine, 853 F.2d
676, 678 (9th Cir. 1988).

                                            -13-
evidence does not “becloud” the issue (insanity) the jury is to decide),    9
                                                                                cert.

denied , 419 U.S. 857 (1974).



       We also do not find compelling that, as      Mr. Vazquez-Pulido suggests,

competency tests should be inadmissible at trial since the tests would not be

available to the parties but for the competency evaluation. As we have already

recognized, identical testing procedures may be used by experts to evaluate both

the defendant’s mental competency to stand trial and his mental capacity to

commit a crime. Consequently, the tests used to determine competency may be

available to the parties regardless of the compelled competency evaluation.

Furthermore, the government can compel the defendant to undergo psychiatric or

psychological examination when the defendant raises the issue of insanity. 18

U.S.C. § 4242(a). Information from that examination may be used against the

defendant with respect to his mental condition even though the psychological or

psychiatric examination is compelled. Fed. R. Crim. P. 12.2(c). We therefore do

not find this argument persuasive enough to justify a       per se rule making all test


       9
        The relevant statute in Collins was 18 U.S.C. § 4244, the predecessor to
18 U.S.C. § 4241. Section 4244 precluded not only the court’s order finding the
defendant competent to stand trial from being admissible at trial, but also any
statement made by the accused from being admissible on the issue of guilt. 18
U.S.C. § 4244 (1982). The difference in these two statutes, however, has no
impact on the point made here.


                                            -14-
results from pretrial competency examinations inadmissible.



       We recognize defense counsel may face a dilemma in deciding whether to

move for a competency evaluation since the results of competency tests can be

used to rebut a mental defense at trial. However, this dilemma does not require

that all test results from the competency determination be inadmissible at trial.

The rules of evidence provide sufficient opportunity for defense counsel to

challenge the admissibility of such evidence. For example, defense counsel can

object on the basis of relevancy under Fed. R. Evid. 402, or object, under Fed. R.

Evid. 403, that the admission of competency evidence confuses the issues of

mental competency to stand trial and mental capacity to commit a crime. The

dilemma may also be reduced by vigorous cross- or redirect examination

distinguishing the purposes for which the tests were given. Moreover, there are

additional safeguards available to ensure a mentally incompetent defendant does

not stand trial. For example, the prosecutor or the court   sua sponte may move for

a competency hearing if defense counsel fails to do so.     See 18 U.S.C. § 4241(a).



       For the above reasons, we decline to hold as a matter of law that all

contents and results of psychological tests used to determine competency are

inadmissible to rebut a mental defense. Mr. Vazquez-Pulido failed to appeal any


                                            -15-
specific evidentiary objections made to the government’s questioning. We find

no error in the district court’s decision to permit the government’s questioning of

Dr. Vargas regarding tests used to determine Mr. Vazquez-Pulido’s competency.



      Accordingly, we AFFIRM.




                                        -16-
