                                                                         FILED
                                                             United States Court of Appeals
                                 PUBLISH                             Tenth Circuit

                UNITED STATES COURT OF APPEALS                      November 29, 2017

                                                                Elisabeth A. Shumaker
                       FOR THE TENTH CIRCUIT                        Clerk of Court
                       _________________________________

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                    No. 16-2188

GABRIEL MIRABAL,

       Defendant-Appellant.
                     _________________________________

              Appeal from the United States District Court
                     for the District of New Mexico
                    (D.C. No. 1:13-CR-01152-WJ-1)
                      _________________________________

Gabriel Mirabal filed a brief pro se.

Mark T. Baker (Carter B. Harrison, with him on the briefs), Peifer, Hanson
& Mullins, P.A., Albuquerque, New Mexico, for Defendant-Appellant.

Nicholas J. Ganjei, Assistant United States Attorney (James D. Tierney,
Acting United States Attorney, with him on the briefs), Albuquerque, New
Mexico, for Plaintiff-Appellee.

                       _________________________________

Before KELLY, HOLMES, and BACHARACH, Circuit Judges.
                  _________________________________

BACHARACH, Circuit Judge.
                  _________________________________

      This appeal is brought by Mr. Gabriel Mirabal. He is a convicted

felon, which prevented him from lawfully possessing a gun. 18 U.S.C.
§ 922(g)(1). But authorities thought that they had seen Mr. Mirabal put an

assault rifle in the trunk of a car. This sighting led authorities to arrange

for a local officer to stop Mr. Mirabal for a traffic violation and to search

the trunk. Carrying out these arrangements, Deputy Micah Barker saw Mr.

Mirabal speeding and initiated a traffic stop.

      After telling Mr. Mirabal that he had been speeding, Deputy Barker

looked for an assault rifle. Though he didn’t find one, he did find a

kilogram of cocaine in the car’s interior. The discovery of cocaine in the

car became key evidence for one of the eventual charges against Mr.

Mirabal. In defending against these charges, Mr. Mirabal argued that the

search had violated the Fourth Amendment. This argument did not

convince the district court, and the case went to trial.

      At the trial, the Government presented testimony by the owner of the

car, Mr. Dominic Anaya, who had pleaded guilty to his own drug crimes.

Mr. Anaya testified that he and Mr. Mirabal had worked together to sell

cocaine. So Mr. Mirabal set out to impeach Mr. Anaya. To do so, Mr.

Mirabal tried to question Mr. Anaya about how much he expected his

sentence to drop as a result of his plea agreement. Mr. Mirabal was

allowed to probe the plea agreement in general terms, but not in detail.

      On appeal, Mr. Mirabal raises two primary arguments and three

supplemental arguments.



                                       2
     First, Mr. Mirabal challenges the introduction of evidence involving

the cocaine found in the car. Deputy Barker had probable cause to believe

that there was an assault rifle in the trunk, so he looked there. But Deputy

Barker claims that he could not see the back of the trunk because of a long

speaker box blocking his view. To see the trunk better, he entered the back

seat and pulled an armrest down. It was then that Deputy Barker found the

cocaine.

     Mr. Mirabal alleges that Deputy Barker violated the Fourth

Amendment by going into the interior of the car and pulling the armrest

down. We disagree, concluding that the officer complied with the Fourth

Amendment by acting reasonably in trying to find a way to see into the

back of the trunk.

     Second, Mr. Mirabal challenges the restrictions placed on his cross-

examination of Mr. Anaya. For the sake of argument, we may assume that

the restrictions violated the Confrontation Clause. Even if they did,

however, any possible violation would have been harmless in light of the

strength of the prosecution’s case and Mr. Mirabal’s opportunity to

thoroughly undermine Mr. Anaya’s credibility in cross-examination.

     Finally, Mr. Mirabal alleges insufficiency of the evidence,

destruction of evidence, and withholding of evidence in violation of Brady

v. Maryland, 373 U.S. 83 (1963). We reject these challenges, concluding

that the trial evidence was sufficient to convict, the evidence was not

                                      3
destroyed in bad faith, and Mr. Mirabal did not identify the evidence

allegedly withheld in violation of Brady.

     In light of these conclusions, we affirm the conviction.

I.   Motion to Suppress

     We begin with Mr. Mirabal’s argument for suppression of evidence

involving the cocaine found in the car.

     A.    Standard of Review

     On this issue, we review the district court’s “factual findings for

clear error and view the evidence in the light most favorable to the

government.” United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir.

2009). A factual finding is clearly erroneous if it lacks evidentiary support

or if a review of the evidence leaves us “‘with the definite and firm

conviction that a mistake has been made.’” United States v. Haymond, 869

F.3d 1153, 1157 (10th Cir. 2017) (quoting United States v. Hernandez, 847

F.3d 1257, 1263 (10th Cir. 2017)). The ultimate reasonableness of the

search, however, is reviewed de novo. DeJear, 552 F.3d at 1200.

     B.    The Ruling in District Court

     Mr. Mirabal moved to suppress evidence of the cocaine, arguing that

Deputy Barker’s search had exceeded the scope permitted by the Fourth

Amendment. The district court credited Deputy Barker’s testimony and

ruled that the search had complied with the Fourth Amendment. Mr.

Mirabal challenges this ruling.

                                      4
      C.    Reasonableness of the Search

      In challenging the ruling, Mr. Mirabal does not question the

existence of probable cause regarding the presence of an assault rifle in the

trunk. He instead asserts that Deputy Barker acted unreasonably by

entering the back seat and pulling the armrest down. 1 We disagree.

      Law-enforcement officers may search a car without a warrant upon

probable cause to believe that contraband is present. United States v.

Chavez, 534 F.3d 1338, 1345 (10th Cir. 2008). But a search is permitted

only in the parts of the car where the officers could reasonably expect to

find the contraband. See United States v. Ross, 456 U.S. 798, 824 (1982)

(“The scope of a warrantless search of an automobile . . . is defined by the

object of the search and the places in which there is probable cause to

believe that it may be found.”). For example, “[p]robable cause to believe

that a container placed in the trunk of a taxi contains contraband or

evidence does not justify a search of the entire cab.” Id.

      The officers are limited not only in the place to search but also in the

manner of searching, which must be “reasonable under the circumstances.”

United States v. Mendoza, 817 F.3d 695, 702 (10th Cir. 2016). Thus, an

1
      Mr. Mirabal also asserts that Deputy Barker violated the Fourth
Amendment by searching the front-seat area. But the cocaine was not
located there; as a result, the constitutionality of Deputy Barker’s search of
the front-seat area does not affect the admissibility of evidence involving
the cocaine. See Wong Sun v. United States, 371 U.S. 471, 485 (1963)
(noting that the exclusionary rule operates to suppress evidence “obtained
either during or as a direct result” of a Fourth Amendment violation).
                                      5
officer can decide how to carry out a search as long as the officer’s

decision is reasonable. Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir.

1997). For example, the officer may deem it necessary to perform “separate

acts of entry or opening” in order to conduct the search. Ross, 456 U.S. at

820-21.

      Mr. Mirabal presents five arguments for why Deputy Barker should

not have entered the back seat and pulled down the armrest:

      1.    The back of the trunk, behind the speaker box, was too small to
            fit an assault rifle.

      2.    The package was not immediately recognizable as contraband,
            preventing seizure under the plain-view doctrine.

      3.    Deputy Barker could discover whatever lay in the back of the
            trunk by leaning over the speaker box and searching with his
            hands.

      4.    The compartment behind the armrest (where the cocaine was
            found) was too small to contain an assault rifle.

      5.    Deputy Barker did not know whether the car had a trunk-access
            panel.

      We reject Mr. Mirabal’s first argument. Deputy Barker testified

based on his military experience and familiarity with assault rifles. In light

of this experience, he testified that a rifle could have fit behind the speaker

box. See Ornelas v. United States, 517 U.S. 690, 699 (1996) (recognizing

that police officers can draw inferences from prior experience). The

district court had little reason to question Deputy Barker’s explanation for

why he had tried to view the back of the trunk.

                                       6
      Mr. Mirabal criticizes Deputy Barker’s explanation, contending that

the assault rifle was too big to fit in the part of the trunk hidden from

view. For this contention, Mr. Mirabal relies on a 1969 manual describing

the length of assault rifles. But Mr. Mirabal failed to present the district

court with evidence of this manual. Without such evidence, the district

court could reasonably rely on Deputy Barker’s explanation for why he had

tried to see into the back of the trunk.

      We also reject Mr. Mirabal’s second argument (that the package was

not recognizable as contraband). Mr. Mirabal did not present this argument

in district court, and he has not urged plain-error review. Therefore, we

decline to consider this argument. See United States v. Lamirand, 669 F.3d

1091, 1099 n.7 (10th Cir. 2012).

      Mr. Mirabal’s third argument is that Deputy Barker could have

looked into the trunk without pulling the armrest down. The only evidence

on this issue came from Deputy Barker. He testified that

           he could see only the front part of the trunk because a speaker
            box ran nearly the entire width of the trunk,

           he could not see the space behind the speaker box,

           the space behind the speaker box was big enough to contain a
            rifle,

           the speaker box would not move, which prevented Deputy
            Barker from searching the back of the trunk, and

           he entered the back seat to see if he could gain access to the
            trunk by folding the seats down.
                                       7
     The district court credited Deputy Barker’s testimony, and Mr.

Mirabal does not point to any evidence of an ability to see into the back of

the trunk without entering the back seat. We therefore reject Mr. Mirabal’s

third argument.

     Mr. Mirabal’s fourth argument is that the area behind the armrest was

too small to fit an assault rifle. This argument ignores Deputy Barker’s

reason for looking behind the armrest. He folded the armrest down to gain

access to the trunk, not to find another hiding space within the car. And

when Deputy Barker pulled the armrest down, he saw a void that appeared

to expose the trunk. Moments later, he saw the package containing the

cocaine.

     The district court again found Deputy Barker’s testimony credible.

The photographs presented to the court show only an opaque black space

behind the armrest; these photographs do not clearly support either side.

With these inconclusive photographs, the district court had little else with

which to appraise Deputy Barker’s account. In these circumstances, the

district court’s finding was not clearly erroneous.

     Finally, Mr. Mirabal contends that pulling the armrest down was

unreasonable because Deputy Barker did not know whether the car had a

trunk-access panel in the back seat. But Deputy Barker knew that many




                                      8
cars had such panels and that going through the back seat was the only

practical way to search the rest of the trunk.

      In our view, Deputy Barker’s effort to see into the back of the trunk

was reasonable. 2

II.   Confrontation Clause

      Mr. Mirabal also claims a violation of the Confrontation Clause

based on his inability to fully cross-examine Mr. Anaya. Mr. Anaya was a

co-conspirator testifying for the Government, and Mr. Mirabal was allowed

to question Mr. Anaya on how he expected to benefit from his cooperation.

But Mr. Mirabal wanted to go further, cross-examining Mr. Anaya about

how much he expected his sentence to drop because of his cooperation with

the Government. This line of questioning was disallowed, and we may

assume for the sake of argument that the restriction violated the

Confrontation Clause. With this assumption, we would regard the violation

as harmless.

      A.    The Cross-Examination

      The district court permitted Mr. Mirabal to cross-examine Mr. Anaya

about his

           plea agreement with the Government and

2
      The Government also argues that Deputy Barker had probable cause
to search for ammunition and narcotics, justifying a search of all
compartments within the car. We need not address this argument because
the search would have been reasonable even if probable cause had been
confined to an assault rifle in the trunk.
                                      9
          expectation of a lighter sentence because of his cooperation.

But the court did not permit Mr. Mirabal to use the plea agreement itself or

to ask Mr. Anaya about how much he expected his sentence to drop. The

court reasoned that this questioning would entail conjecture and could

cause the jury to speculate about Mr. Mirabal’s own sentence.

     B.    The Harmlessness Inquiry

     The Government argues that any constitutional violation would have

been harmless. On harmlessness, the Government bears the burden to show

“beyond a reasonable doubt that a rational jury would have found the

defendant guilty absent the error.” Neder v. United States, 527 U.S. 1, 18

(1999).

     To determine whether the Government satisfied this burden, we

consider “the importance of [Mr. Anaya’s] testimony in the prosecution’s

case, whether the testimony was cumulative, the presence or absence of

evidence corroborating or contradicting the testimony of [Mr. Anaya] on

material points, the extent of cross-examination otherwise permitted, and,

of course, the overall strength of the prosecution's case.” Delaware v. Van

Arsdall, 475 U.S. 673, 684 (1986).




                                     10
      1.     Importance, Cumulativeness, and Corroboration

      Three of the factors (importance, cumulativeness, and corroboration)

are interrelated here. Considered together, these factors do not weigh

heavily in either direction.

      Mr. Anaya was used mainly to interpret approximately twenty

wiretapped telephone calls, testifying that various code words referred to

the sale of crack and powder cocaine, that he and Mr. Mirabal had supplied

other conspirators with crack and powder cocaine, that Mr. Mirabal had

provided instruction on how to cook crack cocaine, that the two men would

sell ten ounces of crack cocaine (the statutory requirement) in only a

couple of days, and that Mr. Anaya would not have left $30,000 worth of

cocaine in the car that he allowed Mr. Mirabal to drive. This testimony

supported the Government’s theory that Mr. Anaya and Mr. Mirabal had

conspired to sell cocaine.

      Mr. Mirabal did not deny a conspiracy. Instead, he argued that the

conspiracy was to sell marijuana wax rather than cocaine. Here too Mr.

Anaya rebutted Mr. Mirabal’s argument, testifying that the two men were

not in the business of selling marijuana wax.

      Mr. Anaya’s testimony was extensive and important. But his

testimony was also corroborated by other witnesses. For example, every

telephone call discussed by Mr. Anaya was played for the jury and

interpreted the same way by law-enforcement witnesses. In interpreting the

                                     11
calls, the law-enforcement witnesses testified that Mr. Mirabal had

supplied various individuals with large quantities of crack cocaine,

negotiated prices and made arrangements to sell crack cocaine, and

aggressively collected debts. Other corroborating evidence involved two

undercover drug deals to buy crack cocaine from one of Mr. Mirabal’s

alleged distributors, observations of Mr. Mirabal meeting with alleged

buyers at the times arranged in the telephone calls, telephone calls in

which Mr. Mirabal told Mr. Anaya how to cook crack cocaine, and

telephone calls indicating Mr. Mirabal’s intent to sell the cocaine stashed

in the car. The abundance of corroboration weighs in favor of

harmlessness.

     But the influence of Mr. Anaya remained substantial, for he had been

intimately involved in Mr. Mirabal’s criminal enterprise. And the law-

enforcement witnesses acknowledged that they had relied at least in part on

information from Mr. Anaya while he was cooperating with the

Government. Thus the factors of importance, cumulativeness, and

corroboration are not dispositive; the issue of harmlessness turns instead

on the strength of the prosecution’s case and the extent of cross-

examination.

     2.    Strength of the Prosecution’s Case

     The overall strength of the prosecution’s case supports harmlessness.

The Government presented an enormous array of wiretapped calls that

                                     12
officers interpreted as proof that Mr. Mirabal was setting up drug deals,

negotiating sales, and instructing Mr. Anaya on how to cook crack cocaine.

This evidence was coupled with officers’ observations of Mr. Mirabal

meeting with buyers at the arranged times.

     The Government also presented strong evidence that the conspiracy

had involved cocaine rather than marijuana wax. For example, searches of

Mr. Mirabal’s home and storage locker did not uncover the materials

needed to make marijuana wax, and Mr. Mirabal’s pricing matched the

price of cocaine. In addition, the terminology used in the telephone calls

made it unlikely that the coded references involved marijuana wax because

          Mr. Mirabal did not talk in code when referring to marijuana
           and marijuana wax,

          the law-enforcement witnesses testified that the code words
           matched crack and powder cocaine but not marijuana or
           marijuana wax, and

          the references to “cooking” made sense for the production of
           crack cocaine but not for the production of marijuana wax.

     In our view, the strength of the prosecution’s case weighs in favor of

harmlessness.

     3.     Extent of Cross-Examination

     But the most critical factor is the extent of cross-examination that

was allowed. Even with the restrictions, Mr. Mirabal was able to

extensively cross-examine Mr. Anaya on his reliability and motive. By the



                                     13
end, Mr. Anaya’s credibility was sullied as much as it would have been

with a fuller cross-examination.

      For example, Mr. Mirabal questioned Mr. Anaya extensively on the

reliability of his testimony, including his history as an abuser and a

trafficker of drugs, his prior convictions for drug trafficking and armed

robbery, his prior inconsistent statements, his inability to know who was

driving his car after he went to prison, the discrepancies between Mr.

Anaya’s testimony and the testimony of other witnesses, and Mr. Anaya’s

prior effort to cooperate with the Government only to be told that his

information was unreliable.

      Mr. Mirabal also questioned Mr. Anaya extensively on his motive to

aid the government. For example, Mr. Anaya admitted that he had entered

into a plea agreement and had understood that the Government could help

him obtain a sentence reduction in exchange for his cooperation, that his

sentence would have been substantial without his cooperation, that his

previous convictions could lead to a far longer sentence if the Government

sought an enhancement as a career offender, and that the Government had

chosen not to seek enhancement of Mr. Anaya’s sentence. Mr. Mirabal

drove the point home when Mr. Anaya admitted that he wanted to return

home as soon as he could so that he could see his young children grow up.

      The extensive questioning allowed Mr. Mirabal to aggressively attack

Mr. Anaya’s credibility. For example, in closing argument, Mr. Mirabal

                                      14
pressed the jury to disregard Mr. Anaya’s testimony on the ground that his

plea deal had provided a motive to say whatever the Government wanted.

In addition, Mr. Mirabal effectively used the jury instructions to cast doubt

on Mr. Anaya’s believability. In these instructions, the district court stated

that the jury should weigh Mr. Anaya’s testimony with caution because of

his prior inconsistent statements, past convictions, status as a drug abuser,

and plea agreement. See United States v. Chavez, 481 F.3d 1274, 1278

(10th Cir. 2007) (noting that jury instructions can diminish the impact of

an error for purposes of harmlessness). In light of the extensive cross-

examination, closing argument, and jury instructions, the jury was amply

informed of Mr. Anaya’s unreliability and motive to testify against Mr.

Mirabal.

                                    * * *

      For harmlessness, we ask: If Mr. Mirabal had been permitted to

cross-examine Mr. Anaya on the specifics of Mr. Anaya’s sentencing

exposure, would we conclude beyond a reasonable doubt that the jury

would still have returned a guilty verdict? See Part II(B), above. Based on

the strength of the prosecution’s case and Mr. Mirabal’s extensive cross-

examination of Mr. Anaya, we answer “yes.” In our view, any violation of

the Confrontation Clause would have been harmless.




                                      15
III.        Supplemental Appeal Points

            Mr. Mirabal also filed a supplemental brief raising eight additional

appeal points. Five of these appeal points are either undeveloped or

included within the issues already discussed. 3 But three warrant separate

discussion:

       1.        sufficiency of the evidence,

       2.        destruction of evidence, and

       3.        withholding of exculpatory evidence.

We reject Mr. Mirabal’s contentions on these issues.

            A.   Sufficiency of the Evidence

            Mr. Mirabal contends that the evidence was insufficient to convict.

We review this contention de novo, considering “‘the evidence and the

reasonable inferences to be drawn therefrom in the light most favorable to

the government.’” United States v. Toles, 297 F.3d 959, 968 (10th Cir.

2002) (quoting United States v. Malone, 222 F.3d 1286, 1290 (10th Cir.
3
            In these appeal points, Mr. Mirabal contends that

                the Government used speculative interpretations of code words,

                the Government’s case agent did not believe that the car
                 contained drugs,

                no evidence existed to support Deputy Barker’s testimony
                 about speeding or recovery of a folding knife,

                Deputy Barker’s testimony was unreliable, and

                Mr. Anaya committed perjury.
                                           16
2000)). Considering the evidence in this light, we will reverse only if the

trier of fact could not rationally have found guilt beyond a reasonable

doubt. Id.

      The first count involved conspiracy to distribute at least ten ounces

of crack cocaine. As discussed above, the Government presented evidence

that Mr. Mirabal had arranged to manufacture and sell more than ten

ounces of crack cocaine. This evidence was sufficient for guilt on the first

count.

      The second count entailed possession of 500 grams or more of

powder cocaine with intent to distribute. Here the Government presented

evidence that Mr. Mirabal

            had been caught with one kilogram of cocaine in a car that he
             was driving and

            had been transporting the cocaine to sell it.

This combination of evidence was sufficient for guilt on the second count.

      The third count involved possession of a firearm and ammunition.

Here the Government presented evidence that officers had found a firearm

and ammunition in Mr. Mirabal’s residence, where he lived alone. This

evidence sufficed for guilt on the third count.

      The final count involved possession of body armor. Here the

Government showed that body armor had been found in Mr. Mirabal’s

storage locker. Again, this showing was sufficient for a finding of guilt.


                                       17
      Viewing the evidence in the light most favorable to the Government,

a rational trier of fact could have found Mr. Mirabal guilty on each count.

      B.    Destruction of Evidence

      Mr. Mirabal also challenges the destruction of drug evidence that had

allegedly been obtained from a distributor for Mr. Mirabal. Law-

enforcement officers recognized the substance as crack cocaine, and it

tested positive in a field test. But authorities later filed a notice

announcing the destruction of the drugs based on a governmental policy.

      Mr. Mirabal did not present this argument in district court, and he

has not urged plain-error review. Thus, we could decline to address this

argument. See Part I(C), above.

      But this argument would fail even under de novo review. To prevail,

Mr. Mirabal needed to show that the Government had acted in “bad faith”

by destroying potentially exculpatory evidence. United States v. Beckstead,

500 F.3d 1154, 1159 (10th Cir. 2007). “Generally, however, destroying the

evidence according to ‘an established procedure’. . . ‘precludes a finding

of bad faith absent other compelling evidence.’” Id. (quoting United States

v. Gomez, 191 F.3d 1214, 1219 (10th Cir. 1999)).

      In our view, the authorities did not act in bad faith. They destroyed

the drugs based on an existing policy and filed a notice announcing the

destruction of the drugs. In these circumstances, we have no reason to find



                                       18
bad faith. Thus, we would reject Mr. Mirabal’s argument even if it had

been preserved.

      C.    Withholding of Exculpatory Evidence

      Finally, Mr. Mirabal asserts that evidence was withheld in violation

of Brady v. Maryland, 373 U.S. 83 (1963). But he does not identify the

evidence allegedly withheld or say how this evidence would have been

pertinent. Instead, Mr. Mirabal asks us to overrule Brady’s requirement of

materiality. But we cannot overrule a Supreme Court opinion. See Burrell

v. Armijo, 456 F.3d 1159, 1171 n.9 (10th Cir. 2006) (“Needless to say, we

cannot overrule the Supreme Court.”).

IV.   Conclusion

      We reject Mr. Mirabal’s challenges to his conviction.

      First, we reject his challenge under the Fourth Amendment because

Deputy Barker acted reasonably in pulling the armrest down in order to see

into the back part of the trunk.

      Second, even if the Confrontation Clause had been violated, the

violation would have been harmless because the Government presented

compelling evidence of guilt and Mr. Mirabal was able to effectively

undermine Mr. Anaya’s credibility on cross-examination.

      Third, the evidence was sufficient to convict Mr. Mirabal on each

count.



                                     19
     Fourth, Mr. Mirabal did not preserve his appeal point involving the

destruction of evidence, and he presented no evidence of bad faith.

     Finally, the Brady claim is invalid because Mr. Mirabal has not

identified any withheld evidence or explained why it is material.

     Having rejected each appeal point, we affirm the conviction.




                                     20
