                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                                MAR 5 1999
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                 No. 97-2348
                                                     (D. Ct. No. CR 95-205 HB)
 MARIA SOLANO-RODRIGUEZ,                                     (D. N. Mex.)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and MURPHY, Circuit Judges.



      Defendant-Appellant Maria Solano-Rodriguez appeals from her conviction

in federal district court for possession with intent to distribute less than fifty

kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D).

On appeal, she argues that the district court erred in: (1) refusing to allow her

proposed expert witness to testify at trial; (2) denying her motion to suppress

evidence; (3) denying her motion for a continuance at the beginning of the second



      *
        This order and judgment is not binding precedent, except under the doctrines of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.
day of trial; (4) denying her motion for a mistrial after the introduction of hearsay

evidence; and (5) upholding the jury verdict. 1 We have jurisdiction under 18

U.S.C. § 1291 and affirm.

                                     I. Background

       On March 15, 1995, Ms. Solano-Rodriguez drove into the United States

Border Patrol Checkpoint on Highway 54, between Orogrande and Alamogordo,

New Mexico, with two of her daughters. Border Patrol Agent Joel Sims, working

in the primary inspection area, first made contact with defendant, while Border

Patrol Agent Manuel Cruz stood approximately six feet behind him for safety

purposes. When Agent Sims questioned Ms. Solano-Rodriguez regarding her

citizenship, she produced valid immigration documents. During this time, Agent

Sims did not notice anything unusual about her demeanor. However, he testified

that when he asked Ms. Solano-Rodriguez about her destination, she trembled and

became shaky. Defendant told Agent Sims that she was driving to Alamogordo to

pick up her niece. Agent Sims continued to question defendant about her exact

destination within Alamogordo. Agent Sims testified that one of the children


       1
          In support of these claims, defendant’s counsel filed an opening brief that did not
comply with this court’s rules in effect at the time the brief was filed. Specifically,
counsel used roman numerals rather than page numbers during its statement of
jurisdiction, statement of the issues, and statement of the case in an apparent attempt to
exceed the fifty page limit without leave of this court. See Fed. R. App. P. 28(g), 10th
Cir. R. 28.3. Although we address defendant’s claims, we admonish defense counsel for
its failure to adhere to this court’s rules.

                                            -2-
responded that the niece lived near a school. He repeated his question, directing

it to Ms. Solano-Rodriguez, and testified that she responded that she would have

to stop at a gas station and call her niece. At that point, Agent Sims stated that he

became suspicious because she seemed increasingly nervous and could not pin-

point her destination. Agent Sims also testified that in his past experience with

narcotics transportation, the person transporting the narcotics often gives a

general destination but is unable to provide a specific location, such as an

address. He therefore asked for her consent to walk a border patrol canine around

her car. He testified that she consented, and he directed her to the secondary

inspection area.

      Agent Sims testified that his initial conversation with defendant occurred in

English. He stated that he begins every checkpoint encounter in English,

switching to Spanish if it appears that a person does not understand him.

Although unable to translate words such as “rocker panel” and “trapdoor” at trial,

Agent Sims has passed the Spanish tests required of all Border Patrol agents.

Agent Sims did not believe that Ms. Solano-Rodriguez had any trouble

understanding his English because she provided appropriate answers to his

questions.

      Agent Cruz, who was standing a few feet behind Agent Sims during his

initial encounter with defendant, also testified that the conversation between


                                         -3-
Agents Sims and Ms. Solano-Rodriguez occurred in English. He claimed that he

clearly heard Agent Sims speaking in English and that defendant replied in

English. However, he could not hear every word nor remember the exact words

she used. Agent Cruz further testified that defendant appeared ruffled and

uncertain in her responses when questioned about the exact location she was to

meet her niece and that she consented to the dog walking around the vehicle.

      The defense’s version of the events differs dramatically. Ms. Solano-

Rodriguez testified that upon arriving at a checkpoint, she always showed her

resident alien card. She further asserted that she does not speak English and

asked her daughter to translate Agent Sims’ questions. Upon her daughter telling

her that Agent Sims asked about their destination, she instructed her daughter to

tell him that they were driving to Alamogordo to pick up a niece at the bus depot.

Her daughter then responded to Agent Sims in English. At this point, defendant

testified that she asked her daughter to request that Agent Sims get an agent who

spoke Spanish. Agent Sims brought over Agent Cruz, who asked her to move her

car to the secondary area and get out of the vehicle. Ms. Solano-Rodriguez

claims that neither she nor her daughters ever told the agents that the niece lived

near a school or that she needed to go to a gas station to call her. She also

testified she never spoke to either agent in English.

      At the secondary inspection site, Agent Sims’ canine alerted to the


                                         -4-
floorboard on the driver’s side of Ms. Solano-Rodriguez’s car. Agent Sims

opened the driver’s side door and noticed that the floorboard appeared raised.

After pulling the carpet away, he found eighty-one pounds of marijuana under

five trapdoors. Later, prior to selling the car at auction, authorities found another

twenty pounds concealed in the rocker panel of the car. Border Patrol Agent

Susan Sanchez testified that the marijuana appeared fresh, indicating that it had

not been in the vehicle for a long period of time.

      Ms. Solano-Rodriguez testified that she did not know the car contained

marijuana. According to her, she purchased the car for $700 from a man named

Manuel, whom she met in a bar. However, she could not remember the name of

the bar nor Manuel’s last name. One of her daughters testified that she saw

Manuel come to the house with the car before her mother bought it and knew that

her mother and older sister were saving money for a car.

      On April 4, 1995, a federal grand jury in the District of New Mexico

returned an indictment charging defendant with one count of possession with

intent to distribute less than fifty kilograms of marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(D). She pled not guilty on April 21, 1995. On June

19, 1995, defendant filed a motion to suppress statements and physical evidence,

which the court denied after a hearing.

      On September 7, 1995, the United States filed a motion in limine objecting


                                          -5-
to the proposed testimony of defendant’s expert witness, Dr. Daniel Villa, to

which defense responded on September 14. The first jury trial in this case began

on September 18, 1995. During the trial, the district court refused to allow Dr.

Villa to testify after listening to a proffer of his proposed testimony. At the

conclusion of the trial on September 19, 1995, the court entered an order for a

mistrial as a result of the jury’s inability to reach a verdict.

      Ms. Solano-Rodriguez’s second trial commenced on January 9, 1996.

During the course of this trial, the court again refused to allow Dr. Villa to testify

and again denied the defense’s renewed motion to suppress the evidence seized at

the checkpoint. On January 10, 1996, the second and final day of defendant’s

trial, defendant requested a continuance to enable a witness who had missed her

flight to New Mexico to testify. The court denied this motion. At the conclusion

of the trial, the jury returned a guilty verdict. Ms. Solano-Rodriguez filed a

motion for judgment of acquittal or for a new trial on January 17, 1996, which the

court denied. On September 24, 1997, the court sentenced Ms. Solano-Rodriguez

to thirty-three months imprisonment and two years of supervised release.

                                     II. Discussion

A. Expert Testimony

      Ms. Solano-Rodriguez argues that the district court erred in failing to admit

the testimony of Dr. Daniel Villa, a proposed linguistics expert. She asserts that


                                           -6-
the district court should have allowed Dr. Villa to testify that Agent Sims could

not speak enough Spanish to hold a basic conversation and that Ms. Solano-

Rodriguez could not conduct a basic conversation in English. The “district court

has broad discretion in determining whether or not to admit expert testimony, and

we review a decision to admit or deny such testimony only for abuse of

discretion.” Orth v. Emerson Elec. Co., 980 F.2d 632, 637 (10th Cir. 1992); see

also United States v. Rice, 52 F.3d 843, 847 (10th Cir. 1995). “An abuse of

discretion occurs only when the trial court based its decision on an erroneous

conclusion of law or where there is no rational basis in the evidence for the

ruling.” Wang v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990) (quoting In re

Coordinated Pretrial Proceedings in Petroleum Prod. Antitrust Litig., 669 F.2d

620, 623 (10th Cir. 1982)). Based upon our review of the record, we find that the

district court had valid and legitimate reasons for its decision not to permit Dr.

Villa to testify. 2

       The record reveals that the district court likely had concerns about the

reliability of Dr. Villa’s testimony. It also apparently feared the testimony would



       2
         Because Dr. Villa does not offer “testimony based upon a particular [scientific]
methodology or technique,” Compton v. Subaru of Am., Inc., 82 F.3d 1513, 1519 (10th
Cir. 1996), the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
factors do not enter the analysis, see id. at 1518. “[A]pplication of the Daubert factors is
unwarranted in cases where expert testimony is based solely upon experience or training.”
Id.

                                            -7-
encompass material that would not “assist the trier of fact to understand the

evidence or to determine a fact in issue,” Fed. R. Evid. 702, or might even

mislead the jury or confuse the issues, see Fed. R. Evid. 403 (permitting court to

exclude relevant evidence if “its probative value is substantially outweighed by

the danger of . . . misleading the jury”). Thus, we hold that the district court did

not abuse its discretion in refusing to allow defendant’s expert to testify.

B. Suppression of Evidence

      Ms. Solano-Rodriguez also argues that the evidence presented at her trial,

including the proffer of the defense expert Dr. Villa, establishes that the court

should have granted her renewed motion to suppress. “When reviewing a district

court’s denial of a motion to suppress, we consider the totality of the

circumstances and view the evidence in a light most favorable to the

government.” United States v. Villa-Chaparro, 115 F.3d 797, 800-01 (10th Cir.

1997), cert. denied, 118 S. Ct. 326 (1997). However, the ultimate determination

of reasonableness under the Fourth Amendment is a question of law which we

review de novo. See id.

      The Fourth Amendment protects individuals against unreasonable searches

and seizures. See U.S. Const. amend IV. Although the stop of a vehicle at a

fixed border patrol checkpoint constitutes a “seizure” within the meaning of the

Fourth Amendment, see United States v. Galindo-Gonzales, 142 F.3d 1217, 1221


                                         -8-
(10th Cir. 1998), border patrol agents may briefly detain and question a person at

fixed checkpoints without any individualized suspicion that the person is engaged

in criminal activity without violating the Fourth Amendment, see United States v.

Martinez-Fuerte, 428 U.S. 543, 562 (1976); United States v. Massie, 65 F.3d 843,

847 (10th Cir. 1995). “The principle protection of Fourth Amendment rights at

checkpoints lies in appropriate limitations on the scope of the stop.”

Martinez-Fuerte, 428 U.S. at 566-67; see also United States v. Rascon-Ortiz, 994

F.2d 749, 752 (10th Cir. 1993). “A routine checkpoint stop must be brief and

unintrusive.” Rascon-Ortiz, 994 F.2d at 752. During a routine fixed-checkpoint

stop, border patrol agents may inquire into an individual’s citizenship or

immigration status and request documentation. See Massie, 65 F.3d at 847-48.

They may also may make a cursory visual inspection of the vehicle and may

briefly question an individual “concerning such things as vehicle ownership,

cargo, destination, and travel plans,” provided that such questions are “reasonably

related to the agent’s duty to prevent the unauthorized entry of individuals into

this country and to prevent the smuggling of contraband.” Rascon-Ortiz, 994 F.3d

at 752; accord Massie, 65 F.3d at 848.

      “Further detention of an individual beyond the scope of a routine

checkpoint stop must be based on reasonable suspicion, consent, or probable

cause.” Massie, 65 F.3d at 848; accord Rascon-Ortiz, 994 F.2d at 752. Although


                                         -9-
a cursory visual inspection is permissible as part of a routine checkpoint stop,

agents may not search stopped vehicles in the absence of probable cause or

consent. See Rascon-Ortiz, 994 F.2d at 754.

      Viewing the evidence in the light most favorable to the government, we

accept the version of the events related by Agents Sims and Cruz, and find that

the facts before the district court adequately support its decision to deny

defendant’s motion to suppress. Agent Sims’ initial questioning regarding

defendant’s alienage and destination was within the scope of a routine border

checkpoint stop. Furthermore, the combination of Ms. Solano-Rodriguez’s

nervousness and vague answers as to her precise destination, which Agent Sims

testified that in his experience often occurred when a person was transporting

narcotics, constitutes a sufficient basis for Agent Sims to detain her further while

he requested her permission for a drug-detecting canine to walk around her car.

Ms. Solano-Rodriguez consented to the canine inspection, making further

justification for her detention during this inspection unnecessary. After the dog

alerted to the floorboard of Ms. Solano-Rodriguez’s car, the border patrol agents

had probable cause to detain her and search the vehicle. See Massie, 65 F.3d at

849. Therefore, we hold that the border patrol agents did not violate Ms. Solano-

Rodriguez’s Fourth Amendment rights.

C. Motion for Continuance


                                        - 10 -
      At the beginning of the second and final day of trial, Ms. Solano-Rodriguez

requested a continuance because Norma Olivas, a witness scheduled to arrive in

New Mexico from Denver, Colorado the previous night, had missed her flight.

“We review the denial of a motion for continuance of trial for abuse of discretion

and will find error only if the district court’s decision was arbitrary or

unreasonable and materially prejudiced the defendant.” United States v. Simpson,

152 F.3d 1241, 1251 (10th Cir. 1998); see also, e.g., Gust v. Jones, 162 F.3d 587,

598 (10th Cir. 1998). We find no abuse of discretion in this case.

      At the time of defendant’s arrest, she had a piece of paper with various first

names, telephone numbers, cellular phone numbers, beeper numbers, and a

Colorado address in her purse. On redirect, Agent Sanchez testified:

      By themselves, [the numbers] wouldn’t mean anything, but based on
      experience and having had involvement in numerous narcotics cases,
      cellular phone numbers are classic things used in the transportation
      of narcotics, because it helps the smugglers stay in contact, constant,
      continuous contact, with the person carrying their narcotics for them.
      . . . [T]his is large investment. . . . Denver, Colorado, is a city we
      come across with where these narcotics loads are destined to. So,
      yeah, all of these things by themselves don’t mean anything, but the
      combination of them are very significant to me, because I have had
      numerous experiences with narcotics cases and seeing these things
      involved in narcotics cases.

R., Volume VI at 177-78. The government entered the paper containing the

numbers into evidence as an exhibit.

      Defense counsel admits that she may have elicited much of this damaging


                                         - 11 -
information during cross examination, but, at the time, she believed that Ms.

Olivas would arrive to testify. Ms. Olivas would have testified that the numbers

belonged to family and friends, rebutting the government’s inference that the

numbers were drug-related. However, Ms. Olivas missed her flight, the last one

from Denver for the evening, making her unavailable to testify. Defendant

requested a continuance, but the district court denied the motion stating, “I do not

think it’s reasonable to continue this case at this point to get a witness who could

have or should have been obtained and brought here in a timely fashion.” R.,

Volume VI at 290.

      Here, the district court did not act unreasonably nor arbitrarily in denying

defendant’s motion for a continuance, nor did the court’s decision materially

prejudice the defendant. The jury members, court, and government had already

assembled and prepared for the second and final day of trial. Ms. Olivas’

testimony would merely have reiterated that the telephone and beeper numbers

belonged to family and friends, not drug carriers. Defendant and her daughter,

Ms. Madrid, had already provided such testimony. Thus, we find that the court

did not abuse its discretion in denying the motion for a continuance.

D. Motion for Mistrial

      During defendant’s trial, government witness David Black testified that he

had learned that a woman named Maria Solano and two young children had stayed


                                        - 12 -
at the Townsman Motel in Alamogordo the night before Ms. Solano-Rodriguez’s

arrest. This testimony contradicted defendant’s claim that she had no prearranged

plan to go to Alamogordo before her niece called the day of her arrest. The

district court sustained this objection on hearsay grounds and instructed the jury

to disregard the statement. The court denied defendant’s request for a mistrial.

On appeal, defendant argues that this remark “was so highly prejudicial as to be

incurable by the trial court’s admonition. Appellant’s due process rights were

violated by the improper evidence and it was error not to grant Appellant’s

motion for a new trial.” Appellant’s Br. at 48. We disagree.

      Absent a clear abuse of discretion, we will not disturb a ruling on a motion

for a mistrial. See United States v. Brooks, 161 F.3d 1240, 1245 (10th Cir.

1998); United States v. Blaze, 143 F.3d 585, 594 (10th Cir. 1998). A new trial is

warranted only when it cannot be said “with reasonable certainty that the

reference to [inadmissable evidence] had but very slight effect on the verdict of

the jury.” United States v. Joe, 8 F.3d 1488, 1498 (10th Cir. 1993) (internal

quotation marks and citations omitted). In this case, the objectionable reference

constitutes an isolated comment in a two day trial, and the district court

immediately gave a curative instruction to the jury. An instruction to ignore the

testimony typically cures any alleged prejudice. See United States v. Peveto, 881

F.2d 844, 859 (10th Cir. 1989). We hold that under these circumstances, the


                                        - 13 -
judge’s immediate instruction cured any harm that might have arisen from Mr.

Black’s inadmissible testimony. The district court did not abuse its discretion

when it denied defendant’s motion for a mistrial. Cf. Joe, 8 F.3d at 1498 (finding

no abuse of discretion where inadmissible testimony consisted of “a single

isolated occurrence” and “the trial judge gave an immediate curative

instruction”).

E. Sufficiency of Evidence

      Finally, Ms. Solano-Rodriguez argues on appeal that there exists

insufficient evidence to support the jury’s verdict. In evaluating this claim, we

“review the record de novo and ask only whether, taking the evidence -- both

direct and circumstantial, together with the reasonable inferences to be drawn

therefrom -- in the light most favorable to the government, a reasonable jury

could find the defendant guilty beyond a reasonable doubt.” United States v.

Voss, 82 F.3d 1521, 1524-25 (10th Cir. 1996) (internal quotation marks and

citations omitted); accord United States v. Simpson, 152 F.3d 1241, 1251 (10th

Cir. 1998). After carefully reviewing the record, we hold that sufficient evidence




existed upon which a reasonable jury could convict defendant.


                                       - 14 -
In conclusion, we AFFIRM the district court on all issues raised.

                                ENTERED FOR THE COURT,


                                Deanell Reece Tacha
                                Circuit Judge




                                 - 15 -
