                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3485
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Lamont O. Smith,                         *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 12, 2004
                                 Filed: September 3, 2004
                                  ___________

Before WOLLMAN, HEANEY, and MURPHY, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

       Lamont Smith was convicted of one count of possession with the intent to
distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 841. He
was sentenced by the district court1 to 120 months’ imprisonment. On appeal, Smith
argues (1) that the district court erred in denying his motion to suppress and (2) that
the district court erred in permitting a previously undisclosed witness to testify on
rebuttal. We affirm.


      1
       The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
                                          I.
                                          A.
       On April 13, 2001, Hawthorne, California, police officer Melanie Newenham,
who was participating in a “parcel interdiction” operation at a Federal Express
(“FedEx”) facility in Hawthorne, removed a suspicious looking package from a
conveyor belt. After removing the package, she gave it to Detective Julian Catano,
who, also believing the package to be suspicious, decided to submit it to a canine
sniff. The dog alerted to the package, signifying that it contained illegal drugs.
Detective Catano took the package to Lee Edwards, the FedEx facility manager, and
told her that he suspected that the package contained drugs. Edwards asked whether
Catano wanted her to open the package. Detective Catano testified that he told her
that “if she wanted to open it that would be fine . . . .” Edwards opened the box,
revealing a pair of children’s rubber boots. Inside one of the boots, she found a ball
of clear tape containing a white substance. Detective Catano and Officer Newenham
took the package to the Hawthorne police station, where it and its contents were
examined and photographed. The package was later resealed and returned to the
FedEx facility for controlled shipment to the recipient address in Lincoln, Nebraska.
Controlled delivery was executed at the recipient address, where the package was
accepted by Smith, who identified himself by the alias “Sergio.”

       Smith moved to suppress the cocaine base found in the package. The district
court denied the motion, adopting the recommendation of the magistrate judge.2 We
review de novo the district court’s interpretation of the protections afforded by the
Fourth Amendment, and we review for clear error its factual determinations. United
States v. Lothridge, 332 F.3d 502, 503-04 (8th Cir. 2003).




      2
       The Honorable David L. Piester, United States Magistrate Judge for the
District of Nebraska.

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                                          B.
       Smith contends that Officer Newenham unlawfully seized the package. A law
enforcement officer must have reasonable suspicion that a piece of mail, or a package
shipped via a commercial carrier, contains contraband to lawfully seize it for
investigative purposes. United States v. Johnson, 171 F.3d 601, 603 (8th Cir. 1999).
Seizure occurs when a package is removed from its ordinary progress in the mail and
is diverted for further investigation. Id. An officer has reasonable suspicion that a
package contains contraband if she has “a particularized and objective basis” that is
more than an “inchoate and unparticularized suspicion or hunch.” Id. (quoting Terry
v. Ohio, 392 U.S. 1, 27 (1968)). The officer must be able to explain the basis of her
suspicion. Id. at 604. The officer may cite as the basis of her belief, however, facts
which, alone and to an untrained eye, appear innocuous, but which, to a trained
officer familiar with the methods of drug traffickers, are sufficient to establish
reasonable suspicion. Id.; United States v. Demoss, 279 F.3d 632, 636 (8th Cir.
2002).

       We turn to the question whether Officer Newenham had reasonable suspicion
that the package contained contraband when she seized it. We conclude that she did.
She was able to articulate a number of factors that led to her conclusion: the package
was sent from California; it was a Sony cordless telephone box; its air bill was
handwritten; it was shipped via overnight delivery; and it was marked for optional
Saturday delivery. After lifting the package from the conveyor belt, which was not
in and of itself a seizure, Demoss, 279 F.3d at 635, Newenham observed that the
sender’s address had been scratched out and rewritten and that the cost of shipping
had been paid in cash. Taken individually, each of the foregoing facts is consistent
with innocent conduct. Indeed, taken collectively, the coexistence of these
characteristics might well be seen as innocent by the average citizen. Newenham’s
training and experience, however, gave her a reasonable basis for her determination
that the package was suspicious. She knew that the package was shipped from a drug
source state. She knew that the type of telephone is commonly available throughout

                                         -3-
the United States, and she was therefore suspicious as to why someone would choose
to ship one via FedEx, especially given the high cost of overnight and Saturday
delivery – approximately $35 for shipping versus approximately $60 for the phone.
She knew that drug traffickers commonly use overnight and Saturday delivery to
minimize the amount of time illicit materials are subject to investigation by the
shipping company. She knew that drug traffickers commonly wait until the last
possible moment to address packages containing drugs by hand to reduce the
likelihood that the recipient’s address will be discovered if the shipper is stopped by
a law enforcement officer. She thought it suspicious that a sender would make an
error in writing his or her own address. And she knew from her training and
experience that drug traffickers often pay for shipping in cash. These facts provided
Newenham with a “particularized and objective basis” for seizing the package, and
thus she did not act on the basis of some “inchoate and unparticularized suspicion or
hunch.” Terry, 392 U.S. at 27; United States v. Logan, 362 F.3d 530, 533-34 (8th
Cir. 2004) (noting that drug source state, overnight shipping, and handwritten air bill
contribute to finding of reasonable suspicion that a package contained contraband).
Thus, her seizure of the package was lawful.

                                          C.
       We next consider Smith’s argument that Lee Edwards acted as an agent of the
government in opening the box, thereby tainting discovery of the cocaine base. A
search by a private citizen is not subject to the strictures of the Fourth Amendment
unless that private citizen is acting as a government agent. United States v.
Malbrough, 922 F.2d 458, 461-62 (8th Cir. 1990). We look to several factors in
determining whether a private citizen was acting as an agent of the government.
Chief among these are whether the government had knowledge of and acquiesced in
the intrusive conduct; whether the citizen intended to assist law enforcement agents
or instead acted to further his own purposes; and whether the citizen acted at the
government’s request. Id. at 462 (citing United States v. Miller 688 F.2d 652, 656-57
(9th Cir. 1982)); United States v. Hollis, 245 F.3d 671, 674 (8th Cir. 2001); United

                                         -4-
States v. Parker, 32 F.3d 395 (8th Cir. 1994). Because the government certainly knew
of, and acquiesced in, the opening of the package, this is a much closer case than
Malbrough, Hollis, and Parker. The testimony established, however, that Detective
Catano made it clear that he was not asking or ordering Edwards to open the package.
There is no evidence that Edwards felt she was obligated to open the package. We
conclude therefore that the government’s knowledge and acquiescence, when
considered in light of Catano’s communication to Edwards that the decision was her’s
alone to make, did not make Edwards a government agent for the purposes of the
Fourth Amendment. Cf. United States v. Kinney, 953 F.2d 863, 865 (4th Cir. 1992);
United States v. Feffer, 831 F.2d 734, 739 (7th Cir. 1987); Gold v. United States, 378
F.2d 588 (9th Cir. 1967).

       With respect to the question of intent, the district court found that Edwards’s
decision to inspect the package, even if accompanied by a dual motive of assisting the
officers, was motivated by her obligation to ensure that her employer was not being
used as a means of carrying contraband. As the Supreme Court has pointed out, a
commercial carrier such as FedEx has a “duty to refrain from carrying contraband,”
and such a carrier’s employees may act to ensure compliance with that duty. Illinois
v. Andreas, 463 U.S. 765, 769 n.1 (1983). That a private citizen is motivated in part
by a desire to aid law enforcement does not in and of itself transform her into a
government agent. Malbrough, 922 F.2d at 461-62 (holding that informant who
trespassed with the intent to find out if marijuana was being grown was not a
government agent for the purposes of the Fourth Amendment); see also Coolidge v.
New Hampshire, 403 U.S. 443, 488 (1971) (“[I]t is no part of the policy underlying
the Fourth and Fourteenth Amendments to discourage citizens from aiding to the
utmost of their ability in the apprehension of criminals.”). Given the absence of
evidence that Edwards was motivated solely or even primarily by the intent to aid the
officers, we conclude that the district court’s factual finding that she opened the
package out of her desire to ensure that her company was not being used as a vehicle



                                         -5-
in the drug trade was not clearly erroneous. Thus, the district court did not err in
denying the motion to suppress.

                                         II.
       We next consider Smith’s argument that the district court erred in permitting
certain rebuttal testimony. After the government rested its case-in-chief, it became
aware of a potential rebuttal witness, Delores Schmidt. In an interview, Schmidt
stated that she knew a man named “Sergio,” with whom she had conducted numerous
drug transactions. Believing that “Sergio” was actually Smith, the government
desired to offer Schmidt’s testimony under Fed. R. Evid 404(b) to rebut Smith’s claim
that the package of drugs had been mistakenly shipped to him.

       Smith contends first that the district court erroneously permitted Schmidt to
testify under Rule 404(b). We review de novo the district court’s interpretation and
application of the rules of evidence, and review for an abuse of discretion the factual
findings supporting its evidentiary ruling. United States v. Blue Bird, 372 F.3d 989,
993 (8th Cir. 2004). Because Rule 404(b) is a rule of inclusion, we presume that
evidence of “other crimes, acts, or wrongs” is admissible to prove motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident, unless the party seeking its exclusion can demonstrate that it serves only to
prove the defendant’s criminal disposition. United States v. Campa-Fabela, 210 F.3d
837, 840 (8th Cir. 2000). Other crimes evidence is admissible if it is relevant to a
material issue, the other crimes are similar and reasonably close in time to the charged
crime, the evidence is sufficient to support a jury’s finding that the defendant
committed the other crimes, and the probative value of the evidence is not
substantially outweighed by unfair prejudice. United States v. Carroll, 207 F.3d 465,
469 n. 2 (8th Cir. 2000). Schmidt’s testimony satisfies the first of Carroll’s
requirements: it was clearly relevant to a material issue (Smith’s knowledge of drug
dealing), it concerned events that were similar in kind and close in time to the charged



                                          -6-
crime, and it was sufficient to support a jury determination that Smith was involved
in drug transactions with Schmidt.

       With respect to the question of unfair prejudice, there was little chance that the
jury would misuse the testimony in light of the instruction limiting its consideration
to the issues of knowledge and mistake – two proper uses of other crimes evidence
and two issues made relevant by Smith’s defense. Lothridge, 332 F.3d at 504. Smith
argues, however, that he suffered unfair prejudice because he was not given
reasonable notice before trial of the government’s intention to introduce Schmidt’s
testimony. Rule 404(b) provides, in pertinent part, that “the prosecution . . . shall
provide reasonable notice in advance of trial, or during trial if the court excuses
pretrial notice on good cause shown . . . .” Essentially, Smith argues that the district
court improperly concluded that the government’s explanation – that it simply did not
have actual knowledge of the existence of Schmidt’s proffer – satisfied the good
cause requirement of the Rule.

      There has been no allegation that the government intentionally withheld notice
from Smith or his attorney. Rather, it appears from the record that Schmidt’s proffer
was obtained and filed independently of the investigation of Smith. It was only after
Schmidt’s reference to “Sergio” was matched with Smith’s self-identification as
“Sergio” when receiving the FedEx package that the government realized that her
testimony might be relevant to Smith’s trial. The government immediately informed
Smith’s attorney of Schmidt’s proffer, and he was given access to question her.
Smith argues that, not withstanding the government’s prompt notice, he was unfairly
prejudiced because his theory of the case, which his attorney outlined to the jury
during his opening statement, was vitiated by her testimony. He maintains he was
faced with a “Hobson’s choice” or “Catch-22” situation, unfairly forcing him to
choose between continuing with his theory of the case and attempting to minimize the
damage of Schmidt’s testimony or else changing his theory of the case and risking the



                                          -7-
ire of the jury for failing to deliver on the representations he made in his opening
statement.

       We conclude that the district court did not abuse its discretion in concluding
that the government had demonstrated good cause for its failure to disclose Schmidt’s
testimony. In a perfect world, the government would have been aware of, and would
have disclosed, her proffer earlier. But we do not live in a perfect world, and a
criminal defendant is not guaranteed a perfect trial, just a fair one. United States v.
Flores, 73 F.3d 826, 832-33 (8th Cir. 1996) (quoting Bruton v. United States, 391
U.S. 123, 135 (1968)). The discovery of Schmidt’s proffer was “simply one of those
unexpected developments that occurs in the course of a trial.” Id. at 832. The
unexpected development did require Smith and his attorney to make some difficult
strategic decisions in the midst of trial, but that defendants are faced with such
decisions at inopportune times does not necessarily require the exclusion of evidence.
United States v. Spence, 125 F.3d 1192, 1194 (8th Cir. 1997) (holding that the district
court’s decision to defer ruling on a motion to exclude “other crimes” evidence until
the middle of the trial was not an abuse of discretion despite the fact that it potentially
required defendant to adapt his trial strategy accordingly).

      The judgment is affirmed.

HEANEY, Circuit Judge, dissenting.

       I respectfully dissent from section I.C. of the majority’s opinion. It is clear
from the record that Lee Edwards, a FedEx employee, only became involved in the
investigation of Smith’s package at the behest of the government, and only after the
government realized that it could not constitutionally undertake a further search of
the package without first obtaining a warrant. To allow the government to employ
private individuals to perform searches in a manner that the government itself legally
could not, does not conform to my concept of constitutionally acceptable conduct.

                                           -8-
       On Friday, April 13, 2001, a number of police officers were stationed at the
FedEx shipping facility in Hawthorne, California to investigate potential drug
trafficking. As explained by Officer Melanie Newenham, she was stationed at a large
conveyor belt, watching for what she considered to be suspicious packages. Smith’s
package caught her eye because of its distinct box and a sticker indicating that the
sender had requested Saturday delivery. When she removed the package from the
belt, she saw that it had a handwritten airbill, scratched-out address form, was paid
for in cash, and was a person-to-person delivery. Based on her training and
experience, including her belief that California was a source state for drugs, she
decided to have Detective Julian Catano conduct further investigation of the package.

      Catano agreed that the box looked suspicious. He called on his canine partner,
Bailey, to sniff the box for the odor of drugs. Bailey alerted to the box, indicating to
Catano that it contained narcotics. Despite his belief that the package contained
drugs, Catano did not seek to procure a warrant, even though he recognized that he
could not open the box himself without a warrant. Consequently, Catano brought the
package to Lee Edwards, a FedEx employee and manager at the shipping facility.
According to Catano, he next advised Edwards that he “had a suspicion that this
package may contain something illegal and told her that we had a dog alert on it and
pointed out some of the other indicators, at which time she asked me if I wanted her
to open it.” (Suppression Hr’g Tr. at 23.) In response to this query, Catano advised
Edwards that it was “fine” for her to open the package if she so desired. (Id.) Under
Catano’s watchful eye, Edwards opened the package for him and found cocaine.

      At oral argument, the government conceded that if Edwards was acting as a
government agent, she violated Smith’s Fourth Amendment rights by opening the box
without a warrant. “A search by a private person becomes a government search ‘if
the government coerces, dominates, or directs the actions of a private person’
conducting the search.” United States v. Souza, 223 F.3d 1197, 1201 (10th Cir.
2000) (quoting Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir. 1989)). In order to

                                          -9-
determine whether Edwards was acting as a government agent, we consider the
totality of circumstances surrounding her conduct. United States v. Jarrett, 338 F.3d
339, 344 (4th Cir. 2003); Souza, 223 F.3d at 1201; accord United States v. Crowley,
285 F.3d 553, 558 (7th Cir. 2002) (instructing courts to determine whether a private
party is acting as an instrument or agent of the government “on a case-by-case basis
in light of all the circumstances”). “Two critical factors in assessing whether a
private party acts as an agent of the government are (1) the government’s knowledge
of and acquiescence in the search, and (2) the intent of the party performing the
search.” United States v. Parker, 32 F.3d 395, 398 (8th Cir. 1994). Other important
factors which inform this determination include whether the government requested
that the search be performed, and whether the government offered to reward the
private party for performing the search. United States v. Malbrough, 922 F.2d 458,
462 (8th Cir. 1990).

        I agree with the majority that the government clearly knew of and acquiesced
in the search; indeed, the search would not have happened but for the government’s
involvement. I cannot agree, however, that Edwards intended to further her own ends
by opening the package. No evidence adduced at the suppression hearing supports
such an inference. Edwards did not testify, and no other testimony established any
motive for her action beyond helping law enforcement. This case is distinct from
Parker, in which a UPS employee opened a box and discovered a large amount of
cash that eventually led to a drug seizure. In that case, our court held that the
employee was not a government agent because “UPS opened the package pursuant
to its policy to inspect the packaging of packages insured for more than $1,000.00.”
Parker, 32 F.3d at 399. The majority suggests that it was permissible for Edwards to
open the package pursuant to FedEx’s “‘duty to refrain from carrying contraband.’”
Ante at 5 (quoting Illinois v. Andreas, 463 U.S. 765, 769 n.1 (1983)). To my mind,
this misses the point: Smith does not argue that Edwards could not open the package;
rather, he argues that the government could not open the package, and that Edwards
was acting as an agent of the government. And while Edwards may well have

                                        -10-
harbored many appropriate motivations for opening the box, the record contains none
of them. Only Catano and Newenham were called to testify, and Newenham
indicated that she had no contact with Edwards. Thus, we are guided in our analysis
only by the testimony of Catano. Catano stated that after he and his fellow officers
extinguished their ability to search the package without a warrant, he physically
brought the box to Edwards. He told her that a number of factors indicated to him
that the package contained drugs. In so doing, Catano was not simply relaying
information, but attempting to evoke some response.3 Edwards herself recognized as
much, and asked Catano if he wanted her to open the box. According to his
testimony, Catano replied “that if she wanted to open it that would be fine.”4
(Suppression Hr’g Tr. at 23.)

      I find this case similar to United States v. Souza, 223 F.3d 1197 (10th Cir.
2000). There, government agents were stationed at a UPS facility for training
purposes. One agent, Detective Sloan, found a package he considered to be
suspicious, so he pulled it off of the conveyor belt. Special Agent Rowden then
inspected the package, and had his drug dog sniff the package. The dog alerted to the
package, and the agents began the process of getting a search warrant. In the
meantime,

      a UPS employee, April Denning, arrived on the scene. According to
      Denning’s testimony, a conversation was initiated by Detective Sloan
      who told her that a narcotics dog had alerted to the package and “stated


      3
      Catano testified that it was his practice to bring suspicious packages to FedEx
employees to see if they would open the packages before he tried to obtain a warrant.
      4
       The majority notes that Catano “made it clear that he was not asking or
ordering Edwards to open the package.” Ante at 5. While he may not have directly
asked her to open the box, the insinuation was unmistakable. We would be remiss
to focus on the presence or absence of magic words in determining whether an officer
encouraged or instructed a private party to perform a search.

                                        -11-
      that they couldn’t tell me to open the package, they were not authorized
      to do that, they would have to have a search warrant, but he pointed to
      where the package was.” A couple of minutes later, another officer
      again told Denning, “I cannot tell you to not open the package, but there
      it is on the floor.”

Souza, 223 at 1200. Denning began opening the package, and with the assistance of
the agents, found methamphetamine inside.

      In reviewing the legality of Denning’s search, the court noted that the first issue
to consider was whether Denning, although a UPS employee, was nonetheless acting
as a government agent. The court answered in the affirmative for three reasons: 1)
government agents initiated the seizure of the box; 2) officers encouraged Denning
to open the box; and 3) agents physically assisted Denning with the search. Id. at
1202. It also recognized that “[w]hile companies such as UPS have legitimate
reasons to search packages independent of any motivation to assist police, there is no
evidence that in this instance Denning had a legitimate, independent motivation to
open the package.” Id. (citation omitted).

       Had Edwards (or any other qualified party, for that matter) testified that she
was motivated by some cause other than to assist Catano, I would agree with the
majority that she was not an agent or instrumentality of the government. This is not
the case. Instead, we are required to infer Edwards’s intent in opening the package.
The majority sees fit to speculate that Edwards’s goal in performing the search was
to ensure that FedEx was not shipping contraband. It may be true that Edwards was
motivated by some principle other than to assist law enforcement when she searched
Smith’s package. She may well have sought to keep drugs out of FedEx’s facilities,
or she may have sought to expedite the search so that the package would arrive on
time. I have found no evidence to indicate as much, however, and cannot agree that
the such conjecture survives scrutiny when measured by the testimony adduced at the
suppression hearing. We cannot invent a motive for Edwards’s search which is not

                                          -12-
supported by the record. I would reverse the district court’s finding that Edwards
undertook the search for the benefit of FedEx and was thus acting in her private
capacity. Her actions were motivated, overseen, and in part directed by law
enforcement officers. She was acting on behalf of the government when she opened
Smith’s package, and thus could not constitutionally do so without a warrant. The
district court’s holding to the contrary was error, and I thus dissent from that portion
of the majority’s affirming opinion.
                        ______________________________




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