                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

___________

No. 01-3941
___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Humberto Santos-Garcia,                *
                                       *
            Appellant.                 *

____________                               Appeals from the United States
                                           District Court for the
No. 02-1583                                District of Nebraska
____________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Mario Sanchez-Nunez,                   *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: October 7, 2002

                                 Filed: December 27, 2002
                                  ___________
                                   ____________

Before McMILLIAN, LAY and RILEY, Circuit Judges.
                            ___________

McMILLIAN, Circuit Judge.

        Humberto Santos-Garcia (Santos) and Mario Sanchez-Nunez (Sanchez) appeal
from judgments entered in the district court1 following their convictions arising from
a conspiracy to distribute methamphetamine. Santos challenges the district court's
denial of his suppression motion. Sanchez challenges the district court's denial of his
motion to dismiss the indictment, denial of motion for judgment of acquittal or new
trial, and imposition of his sentence. We affirm the judgments.

BACKGROUND

       On September 2, 2000, Nebraska State Trooper Kenneth Ayers stopped a 1991
Dodge Dynasty with Nevada license plates for speeding. Santos was the driver of
the car and Roberto Arreguin-Rivera (Arreguin) was the passenger. Ayers asked
them for driver's licenses and vehicle registration. Santos produced a Nevada driver's
license and registration for the car; Arreguin produced a California driver's license.
Ayers, who noticed a strong unidentifiable odor coming from the car, asked Santos
to step out of the Dodge and to stand at the rear of the car, which he did. Ayers asked
Santos several questions, including his relationship with Arreguin and the purpose
of trip. Santos said they were going to Omaha to see a friend and to stay a few days
to look for work. Ayers then questioned Arreguin, who was still in the car. Arreguin
said they were going to Omaha to visit a friend and thought they would stay a week.
Ayers confirmed that the car belonged to Santos and that he had no criminal
background and decided to issue a written warning.

      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

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       After returning Santos's license and registration and explaining the warning,
Ayers asked Santos if drugs were in the car. Santos said no, and Ayers asked Santos
for permission to search the car. Santos consented and signed a consent to search
form. Ayers then approached Arreguin, who was seated in the Dodge, asking if he
had luggage and, if he did, would he consent to a search of it. Arreguin said he had
luggage, but, apparently because of poor English skills, did not understand Ayers's
request to search his luggage. After Santos translated Ayers's request, Arreguin
consented to a search. Ayers then asked Santos to open the trunk of the Dodge.
Santos retrieved the keys and opened the trunk. Ayers discovered 19 packages of
methamphetamine, weighing a total of about 22 pounds, located in rocker panels of
the car.

       Ayers arrested Santos and Arreguin and took them to the state patrol office in
Lexington, Nebraska. After obtaining a Miranda waiver, around 10 p.m., Investigator
Gary Eng questioned Santos. Initially, Santos denied knowing that methamphetamine
was in the car, telling Eng that he was being paid $1500 to drive the Dodge from
Reno, Nevada, to Omaha, Nebraska , for an individual named Mario. Eng told Santos
that his story did not make sense and asked if Santos had children. Santos, who was
twenty years old, said yes. Eng told Santos that, given the amount of
methamphetamine, under the federal sentencing guidelines, his sentence would be
about fifteen years and that his children would be driving by the time he was released
from prison. Santos then admitted he knew methamphetamine was in the car,
explaining Mario had directed them to call him after they checked into a motel near
a highway and he would then pick up the methamphetamine. Eng also told Santos
that if he cooperated, his sentence might be reduced, but explained to cooperate
meant he would have to admit his knowledge of the methamphetamine and participate
in a controlled delivery of the drugs to Mario in Omaha. Santos agreed to cooperate.

      At the end of Eng's interrogation of Santos, Investigator Michael Dowling
came into the room and confirmed that Santos had been advised of his Miranda rights.

                                         -3-
Dowling then drove Santos to Grand Island, Nebraska, for a polygraph examination.
At the beginning of the seventy-mile trip, Dowling reminded Santos of his Miranda
rights. Santos told Dowling that he understood his rights and had waived them, again
confessing to transporting the methamphetamine from Reno, Nevada, to Omaha,
Nebraska, for Mario.

      Dowling and Santos arrived in Grand Island around 5:30 a.m. Before the
polygraph examination, Investigator Vincent Hernandez advised Santos of his
Miranda rights and Santos signed a waiver and a polygraph release. Santos then
made incriminating statements.

       After the polygraph examination, Hernandez accompanied Santos to the state
patrol office in Omaha to participate in the controlled delivery. Ayers drove the
Dodge from the patrol office to a Motel 6 near a highway and placed a package of
methamphetamine in a rocker panel of the car. Hernandez and other law enforcement
officers accompanied Santos and Arreguin to the motel. At the motel, Santos placed
a telephone call to a number, which had been found in Arreguin's wallet, and talked
to Mario. Santos told Mario that he and Arreguin were staying at a Motel 6 near a
highway. Mario wanted to talk to Arreguin, but Santos told him Arreguin would call
him back. Arreguin called Mario and told him that they would put the keys to the
Dodge in the visor on the driver's side. Shortly thereafter, a white Mustang pulled
into the motel parking lot. Sanchez got out of the Mustang, opened the driver's side
door of the Dodge, and took the keys from the visor. Sanchez then drove the Dodge
to a trailer park, where he parked it. He left the Dodge and, without taking the
package of methamphetamine, got into the white Mustang, which was waiting for
him. As the Mustang was leaving the trailer park, officers stopped it and arrested
Sanchez and two other men in the car.

     Santos, Arreguin, and Sanchez were charged with conspiracy to distribute
methamphetamine and with possession with the intent to distribute

                                        -4-
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846.2 Santos filed a
suppression motion, which the district court granted in part and denied in part. The
district court denied the motion as to the methamphetamine, holding that Ayers had
reasonable suspicion to search the Dodge. In the alternative, the district court held
that Santos had voluntarily consented to the search of the car. The district court
granted the motion as to Santos's confession to Eng, reasoning that it was involuntary
because it was coerced by Eng's comment that Santos's children would be driving by
the time he finished his sentence. However, the district court denied the motion as
to Santos's statements to Dowling and Hernandez, holding that the subsequent
statements were sufficiently attenuated from the coercive conduct of Eng.

        Santos then entered a guilty plea to an information charging him with
misprision of a felony, in violation of 18 U.S.C. § 4, and was sentenced to time
served. Santos testified for the government at Sanchez's trial. On redirect
examination, Santos testified that while he was in jail, Sanchez offered to get him an
attorney and help his family, if he took responsibility for the drugs. Sanchez moved
for a mistrial because the government had not disclosed Santos's testimony
concerning the attempted bribe. The district court granted the motion because of
unfair surprise, but held that the government had not violated Fed. R. Crim. P. 16 or
the Jencks Act. Sanchez then filed a motion to dismiss the indictment on double
jeopardy grounds, which the district court denied. At the second trial, Santos again
testified for the government, stating that Mario had paid him to transport the Dodge
from Nevada to Omaha, Nebraska. Santos also repeated his testimony that Sanchez
had tried to bribe him to take responsibility for the methamphetamine. The jury
convicted Sanchez of possession with the intent to distribute methamphetamine and
conspiracy. At sentencing, based on Santos's testimony concerning the attempted


      2
       Arreguin pled guilty to the conspiracy charge and was sentenced to 97 months.
His conviction and sentence were upheld on appeal. United States v. Arreguin-
Rivera, No. 02-1087, 2002 WL 1610887 (8th Cir. July 23, 2002) (unpublished).

                                         -5-
bribe, the district court imposed an obstruction-of-justice enhancement under
U.S.S.G. § 3C1.1. After refusing Sanchez's requests for a role-in-the-offense
reduction under U.S.S.G. § 3B1.2 and for a downward departure under § 5K2.0, the
district court sentenced him to 235 months imprisonment.

DISCUSSION

Santos

      Santos argues that the district court erred in denying his suppression motion.
"We review the district court's conclusions of law regarding the denial of a motion
to suppress de novo, and review its findings of fact for clear error." United States v.
Booker, 269 F.3 930,931 (8th Cir. 2001).

       We first address Santos's arguments concerning the search of the Dodge.
Santos concedes that the stop of the car for speeding was lawful, and, incident to the
stop, Ayers was entitled to conduct a reasonable investigation, including asking him
to step out of the car and question him and Arreguin about the purpose of the trip.
See United States v. White, 81 F.3d 775, 778 (8th Cir.), cert. denied, 519 U.S. 1011
(1996). However, Santos argues that during the investigation Ayers had not
developed reasonable suspicion to search the car. We need not address this argument.
"Even if [Ayers] had no suspicion that [Santos] was engaged in criminal activity, if
the encounter after the completion of the traffic stop was consensual, then the Fourth
Amendment would not prohibit Trooper [Ayers] from asking questions unrelated to
the traffic stop, [and] from seeking consent to search the [car]." United States v.
Jones, 269 F.3d 919, 925 (8th Cir. 2001).

      Santos argues that, after the completion of the stop, his encounter with Ayers
was not consensual, but was a seizure. We disagree. "Although there is no litmus test
for determining" whether an encounter is consensual or constitutes a seizure,

                                         -6-
"circumstances indicative of a seizure may include 'the threatening presence of
several officers, the display of a weapon by an officer, some physical touching of the
person . . . , or the use of language or tone of voice indicating that compliance with
the officer's request might be compelled.'" White, 81 F.3d at 779 (quoting United
States v. Angell, 11 F.3d 806, 809 (8th Cir. 1993)). Contrary to his argument, Santos
was "no longer seized within the meaning of the Fourth Amendment after [Ayers]
returned [his] identification and issued a warning ticket." Id. Ayers did not display
a weapon, and, as the district court found, "the tone of the entire exchange was
cooperative." Id. "Moreover, at the time [Ayers] asked to search the vehicle [Santos]
had everything he needed to lawfully proceed on his journey." Id.; see also United
States v. Drayton, 122 S. Ct. 2105, 2112 (2002) (bus passengers were not seized when
officers boarded bus where "[t]here was no application of force, no intimidating
movement, no overwhelming show of force, no brandishing of weapons, no blocking
of exits, no threat, no command, not even an authoritative tone of voice").

        Also, contrary to Santos's argument, "[t]he fact that [Ayers] had not explicitly
said they could leave does not establish that the conversation . . . was not
consensual." United States v. Morgan, 270 F.3d 625, 630 (8th Cir. 2001), cert. denied,
123 S. Ct. 192 (2002). Indeed, the Supreme Court has repeatedly "rejected in specific
terms the suggestion that police officers must always inform citizens of their right to
refuse when seeking permission to conduct a warrantless consent search." Drayton,
122 S. Ct. at 2113 (citing Ohio v. Robinette, 519 U.S. 33, 39-40 (1996); Schneckloth
v. Bustamonte, 412 U.S. 218, 227 (1973)). In Drayton, the Court explained that "[i]n
a society based on law, the concept of agreement and consent should be given a
weight and dignity of its own." Id. at 2114. "Although [Ayers] did not inform
[Santos] of [his] right to refuse the search, [Ayers] did request permission to search,
and the totality of the circumstances indicates [Santos's] consent was voluntary, so
the search[] w[as] reasonable." Id.




                                          -7-
      The district court also did not err in refusing to suppress Santos's statements
to Dowling and Hernandez. As previously noted, the district court suppressed
Santos's confession to Eng, but refused to suppress his subsequent statements,
holding that they were sufficiently attenuated from the taint of Eng's coercive
conduct. Santos argues that the district court erred in holding that the statements
were sufficiently attenuated because there was no "break in the stream of events"
from his confession to Eng to his subsequent statements.

       We need not address Santos's "break-in-the-stream" argument. "It is a well-
settled principle that we may affirm a district court's judgment on any basis supported
by the record." United States v. Pierson, 219 F.3d 803, 807 (8th Cir. 2000). The
district court held that Santos's confession to Eng was involuntary because it was
coerced by Eng's comment that Santos's children would be driving by the time he was
released from prison. However, we believe that Eng's comment was "not so coercive
as to deprive [Santos] of [his] ability to make an unconstrained decision to confess."
United States v. Astello, 241 F.3d 965, 967 (8th Cir.) (internal quotation omitted),
cert. denied, 533 U.S. 962 (2001). To state the obvious, "interrogation of a suspect
will involve some pressure because its purpose is to elicit a confession." Id. "[T]he
fact that the tactics produced the intended result . . . does not make [a] confession
involuntary." Id. at 968. In other words, "there is nothing inherently wrong with
efforts to create a favorable climate for confession." United States v. LeBrun, 306
F.3d 545, 555 (8th Cir. 2002)(internal quotation omitted). "'[Q]uestioning tactics such
as a raised voice, deception, or a sympathetic attitude on the part of the interrogator
will not render a confession involuntary unless the overall impact of the interrogation
caused the defendant's will to be overborne.'" Astello, 241 F.3d at 967 (quoting
Jenner v. Smith, 982 F.2d 329, 334 (8th Cir. 1993)). Nor will a promise of leniency,
an "expressed disbelief in the statements of a suspect . . ., or lie[s] to the accused
about the evidence against him" necessarily render a confession involuntary. Wilson
v. Lawrence County, 260 F.3d 946, 953 (8th Cir. 2001) (internal citations omitted).
Rather, the coercive conduct must be "such that the defendant's will was overborne

                                         -8-
and his capacity for self-determination critically impaired." Astello, 241 F.3d at 967
(internal quotation omitted).

       To determine whether a confession is voluntary or the product of undue
coercion, we look to the totality of the circumstances. Id. Here, considering all the
circumstances, including that Eng advised Santos of his rights and that the interview
was about twenty minutes long, Eng's statement that Santos's children would be
driving by the time he would be released from prison was not unduly coercive.
Rather, it was merely an "accurate representation[] of [Santos's] predicament."
United States v. Gallardo-Marquez, 253 F.3d 1121, 1123 (8th Cir.) (statement that
defendant could receive life sentence not unduly coercive), cert. denied, 122 S. Ct.
570 (2001). As the late Judge Henley, sitting by designation, observed, "'telling [the]
defendant in a noncoercive manner of the realistically expected penalties and
encouraging [him] to tell the truth is no more than affording [him] the chance to
make an informed decision with respect to [his] cooperation with the government.'"
United States v. Nash, 910 F.2d 749, 753 (11th Cir. 1990) (quoting United States v.
Ballard, 586 .2d 1060, 1063 (5th Cir. 1978)).

      Even assuming that Eng's comment about Santos's children was unduly
coercive, the district court did not err in rejecting Sanchez's "break-in-the stream"
argument. Santos relied on the pre-Miranda case of Clewis v. Texas, 386 U.S. 707
(1967) (Clewis). His reliance on Clewis was misplaced. In Clewis, the Supreme
Court held that a defendant's written confession was involuntary because there was
"no break in the stream of events" from the time of an illegal arrest to a written
confession nine days later. Id. at 710. In finding that the confession was involuntary,
the Supreme Court noted that, although Miranda was not directly applicable, it was
nonetheless relevant to a voluntariness determination. Id. at 709. The Court
concluded that the subsequent confession was involuntary because, during the nine
days the defendant had been held in custody, he had never been advised he could
consult with an attorney, have one appointed, if necessary, and remain silent. Id. at

                                         -9-
711. The Court also had "substantial concern" whether the defendant's "faculties [had
been] impaired by inadequate sleep and food, [and] sickness." Id. at 712. Those
factors are not present here. To the contrary, "the law enforcement authorities
displayed a painstaking regard for [Santos] rights from the time of his arrest to his
confession[s]." Reese v. Delo, 94 F.3d 1177, 1184 (8th Cir.) (internal quotation
omitted), cert. denied, 519 U.S. 1011 (1996). Santos had been repeatedly advised and
reminded of his Miranda rights and had voluntarily waived them. Before confessing
to Eng, Santos had waived his rights; Dowling confirmed that Santos had been
advised of his rights and reminded Santos of his rights during the seventy-minute car
trip; and Hernandez re-advised Santos of his rights, and Santos again waived them.
Moreover, as the government notes, Santos slept and ate a snack during the car trip
with Dowling.

Sanchez

       Sanchez first argues that the district court erred in denying his motion to
dismiss the indictment on double jeopardy grounds. Reviewing the district court's
decision de novo, United States v. Beeks, 266 F.3d 880, 882 (8th Cir. 2001) (per
curiam), we hold the district court did not err. When, as here, "a defendant's motion
gives rise to a mistrial, reprosecution is prevented only if the prosecution's 'conduct
giving rise to the successful motion for mistrial was intended to provoke the
defendant into moving for a mistrial,' and thus to make an end run around the Double
Jeopardy Clause." Id. (quoting Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982)).
Sanchez does not argue, and there is no evidence to suggest, that the government
intended to provoke him into moving for a mistrial. Rather, Sanchez argues that the
district court should have dismissed the indictment because of governmental
misconduct in failing to disclose Santos's testimony concerning Sanchez's attempted
bribe. As the government notes, the district court granted Sanchez's motion for a
mistrial because of unfair surprise, not because of governmental misconduct. In any



                                         -10-
event, "[a]bsent intent to provoke a mistrial, . . . even extensive [prosecutorial]
misconduct do[es] not prevent reprosectuion." Id.

       Sanchez also argues that the district court erred in denying his motion for
judgment of acquittal, asserting that there was insufficient evidence supporting the
conspiracy and possession verdicts. In reviewing this claim, "we view the evidence
in the light most favorable to the verdict and accept as established all reasonable
inferences supporting the verdict." United States v. Maggard, 156 F.3d 843, 846 (8th
Cir. 1998) (internal quotation omitted), cert. denied, 525 U.S. 1170 (1999). The
district court did not err. Although Sanchez argues that there was insufficient
evidence because Santos's testimony was incredible, "[i]t is well-established that 'it
is the sole province of the jury to weigh the credibility of a witness.''' Id. at 847
(quoting United States v. Wright, 119 F.3d 630, 634 (8th Cir. 1997)). Nor did the
district court err in denying his motion for new trial based on the weight of the
evidence. See United States v. Campos, 306 F.3d 577, 578 (8th Cir. 2002). Sanchez
also asserts that he is entitled to a new trial, because there was a material variance
between jury instruction 14 and the indictment. However, he offers no supporting
argument and citation, in violation of Fed. R. App. P. 28(a)(9)(A), and thus we do not
address his assertion. See United States v. Echols, 144 F.3d 584, 585 n.2 (8th Cir.
1998).

       Sanchez also challenges his 235-month sentence. He argues that the district
court erred in imposing an obstruction-of-justice enhancement under U.S.S.G. §
3C1.1, which was based on Santos's trial testimony that Sanchez had tried to bribe
him into taking responsibility for the methamphetamine. "In reviewing the
enhancement for obstruction of justice, we accept as true the district court's factual
findings, unless they are clearly erroneous." United States v. Armstrong, 992 F.2d
171, 174 (8th Cir. 1993). Sanchez argues that Santos's testimony concerning the
attempted bribe was incredible, noting that on cross-examination, Santos admitted
that a December 2000 investigative report noted that Santos had accused Arreguin,

                                        -11-
not Sanchez, of attempting to bribe him into taking responsibility for the drugs.
However, at trial Santos testified that the report was incorrect, explaining that he
thought he had told the investigator that Arreguin had tried to bribe him while they
were in Lexington, Nebraska, and that Sanchez had attempted to bribe him while they
were in jail. While Santos's trial testimony was not supported by the investigative
report, he was vigorously cross-examined about the matter. As the government notes,
we must "give due regard to the district court's opportunity to judge the credibility of
the witnesses." Id. at 174. Indeed, we have stated that a district court's credibility
finding is "'virtually unreviewable on appeal.'" United States v. Womack, 191 F.3d
879, 885 (8th Cir. 1999) (quoting United States v. Candie, 974 F.2d 61, 64 (8th Cir.
1992)). Thus, we cannot say the district court erred in relying on Santos's trial
testimony in finding that Sanchez has attempted to obstruct justice. Nor, as Sanchez
argues, did the district court err, much less commit plain error, under Apprendi v.
New Jersey, 530 U.S. 466 (2000), by failing to submit the obstruction-of-justice issue
to the jury. As the government notes, a finding that Sanchez obstructed justice did
not increase the statutory maximum sentence.

      The district court also did not err in denying Sanchez's request for a role-in-the-
offense reduction under U.S.S.G. § 3B1.2. At sentencing, Sanchez argued that he
was entitled to a reduction because he was a mere courier for a single transaction.
However,"[a] role as a courier does not automatically entitle a defendant to a
downward adjustment." United States v. Alverez, 235 F.3d 1086, 1090 (8th Cir.
2000), cert. denied, 532 U.S. 1031 (2001). In addition, as the government notes, the
evidence indicates that Sanchez had organized and supervised the criminal activity.

       Sanchez also argues that the district court abused its discretion in refusing to
grant his request for a downward departure under U.S.S.G. § 5K2.0 based on a
combination of factors. However, "[t]he district court understood it had authority to
depart downward and simply decided that a departure was not warranted." United
States v. Larry, 126 F.3d 1077, 1079 (8th Cir. 1997) (per curiam). Thus, "the district

                                          -12-
court's refusal to grant [Sanchez's] motion for downward departure is unreviewable."
Id.

      Accordingly, we affirm the judgments of the district court.

      A true copy.

            Attest:

               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT




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