                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         JUN 5 2001
                   UNITED STATES COURT OF APPEALS

                         FOR THE TENTH CIRCUIT                      PATRICK FISHER
                                                                               Clerk


 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                       No. 00-3048
 v.                                          (D.C. No. CR-99-10057-03-MLB)
                                                       (D. Kansas.)
 ANTONIO GUEBARA,

             Defendant - Appellant.


                          ORDER AND JUDGMENT           *




Before BRORBY , McKAY , and LUCERO , Circuit Judges.



      Antonio D. Guebara appeals his conviction for conspiracy to possess with

intent to distribute more than 1000 kilograms of a mixture containing a detectable

amount of marijuana, 21 U.S.C. §§ 841(a)(1), 846; four counts of possession with

intent to distribute a mixture containing a detectable amount of marijuana, 21

U.S.C. § 841(a)(1), 18 U.S.C. § 2; and managing a continuing criminal enterprise,

21 U.S.C. § 848. He challenges the district court’s denial of his motions to


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
suppress evidence related to his March 23, 1997, traffic stop, to order separate

trials, and to declare a mistrial. Furthermore, he argues that his conviction should

be vacated because the district court unlawfully revoked his bond. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                I. Motion to Suppress

      On March 23, 1997, Sedgwick County Sheriff’s Deputy Keith Allen was

traveling in an unmarked police vehicle along the Kansas Turnpike with an off-

duty police officer. En route to police training in Topeka, Deputy Allen looked

over at the driver of an Isuzu Rodeo and recognized appellant’s face from mug

shots he had seen in the squad room. Deputy Allen called the Kansas Turnpike

Authority to relay the location of appellant, who he thought was a wanted drug

trafficker, and then called the records section of the Sedgwick County Sheriff’s

Department. From the Sheriff’s Department, he learned that although appellant

had no arrest warrants, he was driving with a suspended license; furthermore, the

Isuzu Rodeo was registered to Andrew Guebara, who did have active warrants

against him. Deputy Allen contacted the Turnpike Authority again and relayed

this additional information. At some point, he saw that there was a passenger in

the vehicle, although he did not identify him.

      Meanwhile, Kansas Highway Patrol Master Trooper Jim Brockman was

dispatched to assist Deputy Allen.   He was told only that the vehicle might be


                                         -2-
occupied by wanted felon Andrew Guebara. Upon locating the vehicle, Trooper

Brockman ran the license plate, learned that it was in fact registered to Andrew

Guebara, stopped the vehicle, and approached appellant. The trooper asked to see

his driver’s license as well as the passenger’s identification, which were not

produced. As he questioned them to determine their identity, Trooper Brockman

detected an overpowering odor of marijuana. The occupants were ordered to exit

the vehicle, and a search revealed a suitcase containing marijuana. Appellant and

passenger George Guebara were arrested.

       The district court denied appellant’s motion to suppress all evidence

stemming from the March 23, 1997, traffic stop. In reviewing that denial, we

accept the district court’s factual findings unless they are clearly erroneous,

“view[ing] the evidence in the light most favorable to the government and the

district court’s findings.”   United States v. Anderson , 114 F.3d 1059, 1063 (10th

Cir. 1997). The ultimate determination of reasonableness under the Fourth

Amendment is a question of law to be reviewed de novo.         United States v. Toro-

Pelaez , 107 F.3d 819, 824 (10th Cir. 1997).

       Traffic stops are seizures under the Fourth Amendment, properly analyzed

as investigative detentions that must be supported by a reasonable, articulable

suspicion that criminal activity is afoot.    See Anderson , 114 F.3d at 1063;   United

States v. Sokolow , 490 U.S. 1, 7 (1989). As a general matter, an investigative


                                             -3-
detention must be justified at its inception and reasonably related in scope to the

circumstances that justified the stop in the first place.    United States v. Sharpe ,

470 U.S. 675, 682 (1985).      With respect to the latter requirement, we explained in

United States v. Salzano     that

       the officer must have an objectively reasonable and articulable
       suspicion that illegal activity has occurred or is occurring in order to
       justify detaining an individual for a period of time longer than that
       necessary to review a driver’s license and vehicle registration, run a
       computer check, determine that the driver is authorized to operate the
       vehicle, and issue the detainee a citation.

158 F.3d 1107, 1111 (10th Cir. 1998) (quotations omitted).

       Knowledge of facts justifying a traffic stop commonly is held by a single

police officer; in limited circumstances, however, a stop may be justified by the

collective knowledge of all of the officers involved in the stop.     United States v.

Merritt , 695 F.2d 1263, 1268 (10th Cir. 1982) (“In assessing whether the police

. . . had sufficient justification to make an investigatory stop we must, of course,

look to the knowledge of all the police involved in this criminal investigation

. . . .”). “It is well-established that when an order to stop or arrest a suspect is

communicated to officers in the field, the underlying facts constituting probable

cause or reasonable suspicion need not be communicated, so long as the

individual or agency issuing the order can justify the intrusion on Fourth

Amendment rights.”      United States v. Shareef , 100 F.3d 1491, 1503 n.4 (10th Cir.

1996) (citation omitted).

                                              -4-
       Appellant contends that the stop was not justified at its inception because

“[w]hen Trooper Brockman stopped the Defendant’s vehicle he had been

informed only that Andrew Guebara had an outstanding felony warrant and that he

might be in the vehicle.” (Appellant’s Br. at 13.) We disagree. Trooper

Brockman was acting on the strength of the dispatcher’s well-informed directive

to assist Deputy Allen in effectuating the stop.     The dispatcher knew appellant

was driving the vehicle, that he had a suspended driver’s license, and that the

vehicle was registered to wanted felon Andrew Guebara. These facts easily

evoked suspicion that criminal wrongdoing was afoot, and we can not conclude

that the suspicion was unreasonable.

       Furthermore, we disagree with appellant’s contention that the investigatory

detention exceeded the scope of the underlying justification. The stop lasted no

longer than necessary to identify the occupants of the vehicle before Trooper

Brockman detected the strong, overpowering odor of marijuana coming from

inside. Under the circumstances, the search of the vehicle was justified,   see

United States v. Downs , 151 F.3d 1301, 1303 (10th Cir. 1998). The district court

properly denied appellant’s motion.

                            II. Motion for Separate Trials

       Of the fifteen defendants charged in the Second Superseding Indictment,

only two, appellant and Alphonso Luna, were actually tried. Luna, who was


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charged with conspiracy and possession with intent to distribute a substance

containing a detectible amount of marijuana, faced the obstacle of explaining how

his fingerprints ended up on three bricks of marijuana found in a co-defendant’s

apartment. His explanation was that he innocently handled the wrapped

marijuana when he visited appellant’s home in Texas.

      On the morning trial was to begin, and after the jury had been sworn,

appellant made a motion for separate trials because, he claimed, Luna’s defense

was antagonistic to his own. Appellant’s counsel expressed his concern: “Mr.

Luna is going to testify . . . that he’s seen Mr. Guebara in control of large

quantities of marijuana. I believe that the testimony is going to indicate that Mr.

Guebara was not only conspiring to distribute this marijuana, but was directing

the distribution on that.” (Appellant’s Br. Ex. H at 12.) Appellant did not present

a defense but rather relied on cross-examination of the government’s witnesses;

according to appellant, cross-examination exposed that the testimony of those

witnesses was self-serving, as it was given pursuant to plea agreements

contemplating their assistance. (Appellant’s Br. at 18.)

      In ruling on the motion, the district court concluded the risk of prejudice

resulting from joint trial was low given the “mountain of evidence” that would be

presented “to the effect that [appellant] is a kingpin in a substantial marijuana

distribution ring” (Appellant’s Br. Ex. H at 19). The court expressed doubt that


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the defenses were mutually antagonistic because appellant did not plan to present

a defense but rather intended to rely on the presumption of his innocence.

Finally, the court planned to instruct the jury to “give separate consideration to

the evidence as it pertains to each defendant.” (   Id. at 22.) The joint trial

proceeded, and Luna was acquitted.

       Joint trials for defendants who are indicted together are preferred because

“[t]hey promote efficiency and serve the interests of justice by avoiding the

scandal and inequity of inconsistent verdicts.”     Zafiro v. United States , 506 U.S.

534, 537 (1993) (quotation omitted);     see Fed. R. Crim. P. 8(b). Nevertheless,

severance may be appropriate “[i]f it appears that defendant or the government is

prejudiced by a joinder of . . . defendants . . . for trial together.” Fed. R. Crim.

P. 14. To make a showing of “prejudice,” a defendant must show that there is a

serious risk that a joint trial would compromise a specific trial right, or prevent

the jury from making a reliable judgment about guilt or innocence.           Zafiro , 506

U.S. at 539. District courts are to consider the circumstances in each case to

evaluate the “risk of prejudice” and fashion “any remedy that may be necessary,”

which may consist of an appropriate jury instruction.       Id. at 540–41.

       At oral argument, appellant’s counsel recognized that the “standard of

review for matters of severance is pretty strict.” Specifically, he can not prevail

unless “there is an affirmative showing of abuse of discretion.”      United States v.


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Morales , 108 F.3d 1213, 1219 (10th Cir. 1997). Appellant further recognizes that

it does not suffice to show that severance would have increased the probability of

his acquittal.   See United States v. Dirden , 38 F.3d 1131, 1140 (10th Cir. 1994).

Rather, he must make a “strong showing” of real prejudice.        Id.

       Assuming, without deciding, that Luna presented an antagonistic defense,

we conclude appellant has not made a sufficient showing of real prejudice.            In

making its determination, the district court correctly anticipated that the evidence

showing appellant was the leader of a drug conspiracy would be overwhelming.

In addition to testimony of police officials, including undercover investigators,

the evidence consisted of the testimony of appellant’s criminal associates.       1
                                                                                      Given

the “mountain” of other evidence against appellant as well as the district judge’s

cautionary jury instruction, we can not say that the joint trial compromised a

specific trial right—namely, the government’s obligation to prove appellant’s

guilt beyond a reasonable doubt—or that the jury was prevented from making a



       1
         ( See, e.g. , IV R. at 104–25 (testimony of William Goddard that appellant
hired him to transport drugs); id. at 139, 137–54 (testimony of Tony Dawn
Falcon that appellant was a distributor of marijuana and cocaine);          id. at 230, 232
(testimony of Eric Day that appellant supplied him and others with cocaine and
marijuana for redistribution on a regular basis);      id. at 237 (Day’s testimony
casting appellant as a leader in a drug conspiracy);       id. at 280–81 (testimony of
David Nunn that he purchased large quantities of marijuana and cocaine from
appellant for resale during a period of several years); V        id. at 462–64 (testimony
of Charles Brunstetter that he purchased a truck from appellant and paid for it by
making marijuana deliveries for him).)

                                            -8-
reliable judgment about appellant’s guilt or innocence. The district court did not

abuse its discretion in denying appellant’s motion.

                               III. Motion for a Mistrial

       At trial, the government played secretly recorded conversations for the jury.

In the recording, a co-defendant stated, “This kid was acting like he wasn’t going

to . . . pay Tony [appellant] for a whole pound of crystal.” (Appellant’s Br. Ex. I

at 1.) “Crystal” was a reference to the controlled substance methamphetamine.

Appellant moved for a mistrial, claiming that the recording violated Federal Rule

of Evidence 404(b) because he was not charged for a crime involving

methamphetamine. The court denied the motion and later instructed the jury to

disregard evidence of uncharged crimes.

       In United States v. Gabaldon , 91 F.3d 91, 93–94 (10th Cir. 1996), we

observed that

       [w]hile the Federal Rules of Criminal Procedure offer little guidance
       on when judges should grant mistrial motions, we have focused on
       “whether . . . [the defendant’s] right to a fair and impartial trial was
       impaired.” . . . Both motions for mistrial and new trial call for an
       examination of the prejudicial impact of an error or errors when
       viewed in the context of an entire case. This court reviews the trial
       court’s ruling on such motions under an abuse of discretion standard.

Id. (quoting United States v. Torres , 959 F.2d 858, 860 (10th Cir. 1992) (further

quotation omitted) (first two alterations in         Gabaldon )).

       Appellant concedes that the methamphetamine reference was “an oversight”


                                               -9-
by the government (Appellant’s Br. at 22); viewed in context of the entire case,

the prejudicial impact of the government’s “oversight” was not substantial. It is

not clear that the jury even knew to what the term “crystal” referred. Although

the district court did not immediately instruct the jury to disregard the statement,

the court did not do so to avoid calling the jury’s attention to the statement. (   Id.

Ex. J. at 400.) “A proper jury instruction was given at the end of evidence”

(Appellant’s Br. at 22), and as previously discussed, the evidence against

appellant was overwhelming for the crimes with which he was charged. We

conclude that the district court did not abuse its discretion in denying appellant’s

motion for a mistrial.

                                  IV. Bond Revocation

       Prior to trial, on September 21, 1999, appellant tested positive for cocaine

use in violation of the conditions of his pretrial release. A magistrate judge

revoked and then reinstated his bond under electronic monitoring and twenty-

four-hour lock down status. On December 30, 1999, Guebara threatened to kill

the “[expletive] judge,” and on January 5, 2000, he removed the electronic

monitoring device from his ankle. (Appellant’s Br. Ex. G.) As a result, the

district court revoked appellant’s bond and remanded him into custody. The

record does not show that the court made specific findings after a formal hearing,

nor does it show that appellant objected to the bond revocation procedure.


                                             -10-
       Appellant claims that the possibility of entering into a plea agreement with

the government evaporated once bond was revoked for a second time; had he

remained out of custody, the government would have agreed to recommend a

downward sentencing departure in exchange for his substantial assistance.

       Normally, we review legal aspects of bond revocations de novo,       United

States v. Dudley , 62 F.3d 1275, 1277 (10th Cir. 1995), but in this case, our review

is limited to plain error because appellant failed to raise and preserve his

objection during the revocation proceedings. “Under [plain error] review, relief

is not warranted unless there has been (1) error, (2) that is plain, and (3) affects

substantial rights. . . . An appellate court should exercise its discretion to correct

plain error only if it seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings.”   Jones v. United States , 527 U.S. 373, 389 (1999)

(citations and quotation omitted).

       Bond revocations are governed by 18 U.S.C. § 3148(b), which states:

       The judicial officer shall enter an order of revocation and detention
       if, after a hearing, the judicial officer—
               (1) finds that there is—
                      (A) probable cause to believe that the person has
       committed a Federal, State, or local crime while on release; or
                      (B) clear and convincing evidence that the person has
       violated any other condition of release; and
               (2) finds that—
                      (A) based on the factors set forth in section 3142(g) of
       this title, there is no condition or combination of conditions of
       release that will assure that the person will not flee or pose a danger
       to the safety of any other person or the community; or

                                          -11-
                   (B) the person is unlikely to abide by any condition or
       combination of conditions of release.

Section 3148(b) is silent about the nature of the required hearing. By contrast,

18 U.S.C. § 3142, which governs detention hearings, states that the detainee

“shall be afforded an opportunity to testify, to present witnesses, to cross-examine

witnesses who appear at the hearing, and to present information by proffer or

otherwise”; furthermore, § 3142(i) requires that “[i]n a detention order . . ., the

judicial officer shall . . . include written findings of fact and a written statement

of the reasons for the detention.”

       Appellant questions the adequacy of the district court’s bond revocation

hearing and findings and seeks to “be placed back into the position he was in

before the district court improperly revoked his bond.” (Appellant’s Br. at 26.)

We assume, without deciding, that the absence of a formal hearing or specific

factual findings constitutes error.   Cf. United States v. Davis , 845 F.2d 412, 415

(2d Cir. 1988). We nevertheless conclude that the procedural error does not

warrant relief because it did not seriously affect the fairness, integrity, or public

reputation of the proceedings. The revocation was amply supported by the

evidence before the court; evidence that appellant cut his monitoring device and

that he tested positive for cocaine use would have supported findings that he had

violated a condition of release and that he was unlikely to abide by any condition

of release.

                                          -12-
                              V. Conclusion

The district court’s judgment is   AFFIRMED .



                                              Entered for the Court


                                              Carlos F. Lucero
                                              Circuit Judge




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