     Case: 15-41054      Document: 00513691829         Page: 1    Date Filed: 09/26/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                    No. 15-41054
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                       September 26, 2016
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

JESUS ERASMO RAMIREZ-MENDOZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-294-2


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Jesus Erasmo Ramirez-Mendoza pleaded guilty pursuant to a plea
agreement to possessing with intent to distribute 100 kilograms or more of a
mixture or substance containing a detectible amount of marijuana. As a part
of the plea agreement, Ramirez-Mendoza reserved the right to appeal the
district court’s denial of his motion to suppress. He appeals, arguing that the
district court erred in denying his motion to suppress by relying on incorrect


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-41054

facts, by relying too heavily on the proximity to the border, and by misapplying
the collective knowledge doctrine. He also argues that the district court erred
by not requiring the production of recordings of radio transmissions between
the testifying agents, which he asserts was a violation of the Jencks Act, 18
U.S.C. § 3500, and Federal Rule of Criminal Procedure 26.2.
       In reviewing the district court’s denial of the motion to suppress, we
review the constitutionality of the stop, including whether there was
reasonable suspicion, de novo. See United States v. Cervantes, 797 F.3d 326,
328 (5th Cir. 2015). The evidence presented at a suppression hearing is viewed
in the light most favorable to the prevailing party, here, the Government. See
id.   Factual findings, including the district court’s credibility choices, are
reviewed for clear error. United States v. Rangel-Portillo, 586 F.3d 376, 379
(5th Cir. 2009).
       “A temporary, warrantless detention of an individual constitutes a
seizure for Fourth Amendment purposes and must be justified by reasonable
suspicion that criminal activity has taken or is currently taking place;
otherwise, evidence obtained through such a detention may be excluded.”
United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013); see Terry v. Ohio,
392 U.S. 1, 29-31 (1968). “Border Patrol agents on roving patrol may detain
vehicles for investigation only if they are aware of specific, articulable facts,
together with rational inferences from those facts, that reasonably warrant
suspicion that the vehicle is involved in illegal activities,” such as transporting
undocumented aliens or drugs.        Cervantes, 797 F.3d at 328-29 (internal
quotation marks and citation omitted).
       “Reasonable suspicion requires more than merely an unparticularized
hunch, but considerably less than proof of wrongdoing by a preponderance of
the evidence.” Garza, 727 F.3d at 440 (internal quotation marks and citation



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                                  No. 15-41054

omitted). In determining whether reasonable suspicion existed, this court
examines the totality of the circumstances and weighs the factors set forth in
United States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975). Cervantes, 797
F.3d at 329.    The factors that may be considered include (1) the area’s
proximity to the border; (2) the characteristics of the area; (3) usual traffic
patterns; (4) the agents’ experience in detecting illegal activity; (5) the driver’s
behavior; (6) particular characteristics of the vehicle; (7) information about
recent illegal trafficking of aliens or narcotics in the area; and (8) the number
of passengers in the vehicle and their appearance and behavior. Id.
      Ramirez-Mendoza’s argument regarding the suppression hearing is
unavailing. The Supreme Court has admonished that the Brignoni-Ponce
factors should not be evaluated in isolation from each other. United States v.
Arvizu, 534 U.S. 266, 274 (2002).        Although not every factor may have
supported the existence of reasonable suspicion, “[n]ot every Brignoni-Ponce
factor need weigh in favor of reasonable suspicion for it to be present.” United
States v. Zapata-Ibarra, 212 F.3d 877, 884 (5th Cir. 2000). Construed most
favorably to the Government, the evidence at the suppression hearing showed
that the stop was made in direct proximity to the border; that the vehicle that
was stopped had travelled erratically, first moving at an extremely low speed
in tandem with another vehicle and later making erratic turns; that the vehicle
was in a sparsely travelled area that is often used as a smuggling route; and
that agents saw individuals on the Mexican side of the border load bundles of
suspected narcotics on a raft and sail across the river with them to the private
property where the vehicle had travelled. One of the agents who participated
in the stop of the vehicle testified that he had heard all of the relevant
information supporting the stop on his radio before the stop; this evidence
showed that the use of the collective knowledge doctrine was proper. See



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                                 No. 15-41054

United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir. 1999). Under the
totality of the circumstances, the agents had reasonable suspicion to stop
Ramirez-Mendoza’s vehicle. See Garza, 727 F.3d at 440-42.
      Ramirez-Mendoza’s argument regarding the purported Jencks Act
violation is equally unavailing. The Jencks Act requires the Government to
disclose statements made by a witness relating to the subject matter as to
which the witness has testified. § 3500(b). A “statement” includes a written
statement made by a witness that has been signed or otherwise adopted by
him or a “substantially verbatim recital” of the witness’s oral statement that
was “recorded contemporaneously.” § 3500(e); see United States v. Williams,
998 F.2d 258, 269 (5th Cir. 1993). We review a district court’s determination
that a document does not qualify as a “statement” requiring disclosure under
the Jencks Act for clear error. United States v. Brown, 303 F.3d 582, 591 (5th
Cir. 2002). Even if the Government is found to have violated the Jencks Act,
that failure is subject to harmless error analysis. See United States v. Ramirez,
174 F.3d 584, 587 (5th Cir. 1999). We strictly apply harmless error analysis to
determine whether the error had a substantial influence on the outcome of the
case. United States v. Montgomery, 210 F.3d 446, 451 (5th Cir. 2000).
      The parties disagree whether the recordings are covered by the Jencks
Act, whether Ramirez-Mendoza waived any claim of error by pleading guilty,
whether there was error, and whether any such error was harmless. However,
we need not decide most of these issues in the instant case. Even if the
recordings were Jencks material, and assuming arguendo that the district
court erred in not compelling their production, Ramirez-Mendoza has not
shown any harm from the alleged error.
      Ramirez-Mendoza has not shown that there was a significant difference
between the agent’s suppression hearing testimony and the recorded radio



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                                No. 15-41054

transmissions. See United States v. Surface, 624 F.2d 23, 26 (5th Cir. 1980).
Further, the record shows that Ramirez-Mendoza had the opportunity to
pursue his Jencks claim at the suppression hearing but declined to develop it
with any particularity during cross examination.         He has not made the
requisite showing that there was a reasonable possibility that the absence of
the recordings affected the outcome of the suppression hearing, despite the
prosecutor’s offer to make the recordings available to him. See id.
      Ramirez-Mendoza has shown no reversible error in the denial of his
motion to suppress. The judgment of the district court is AFFIRMED.




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