                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 16 2002
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 00-2307
          v.                                     (D.C. No. CR-99-886-SC)
 SALVADOR ANCHIETA,                                   (D. New Mexico)

               Defendant - Appellant.


                             ORDER AND JUDGMENT         *




Before SEYMOUR , BALDOCK , and HARTZ , Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34.(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Defendant Salvador Anchieta was convicted on one count of conspiracy to

possess with intent to distribute more than 100 kilograms of marijuana in

violation of 21 U.S.C. § 846. He appeals, contending that (1) the district court



      *
       This order and judgment is not binding precedent, except under the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.
erred by failing to declare a mistrial because of the admission into evidence of

unconstitutionally seized binoculars, and (2) his counsel provided ineffective

assistance of counsel by failing to file a motion to suppress prior to trial. We

affirm.

Background

      The morning of May 25, 1999, starting at about 1:15 a.m., Border Patrol

Agent Richard Martinez conducted surveillance from his vehicle parked off of

Hachita Road. The road, which was often used to transport illegal aliens and

drugs, intersects Interstate Highway 10 about 40 miles west of Deming,

New Mexico. Martinez parked at mile marker 15, five miles south of Interstate

10 and about a fifteen-minute drive from a smelter in Playas to the south.

      Martinez did not see any vehicles on the road until approximately 4:00

a.m., when he observed three sets of truck headlights traveling together

southbound. About a half hour later he noticed three sets of headlights traveling

northbound. He stopped the first truck to determine whether it was carrying

illegal aliens or narcotics. The truck was driven by Frank Salas. The second

truck passed by while Martinez was occupied with Salas. After discovering

marijuana in the truck, Martinez arrested Salas and placed him in the back of his

patrol unit. (The weight of the marijuana was later determined to be 330 pounds.)

      About this time the third set of headlights approached. The truck did not


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arrive as quickly as Martinez would have expected based on the spacing of the

trucks when he first observed them traveling northbound. When Martinez

attempted to stop the truck by waving his flashlight, the truck almost ran him

over. Martinez pursued the truck in his patrol unit and stopped it. The truck was

driven by Defendant. Noting that it was not quite 5:00 a.m., Martinez asked

Defendant what he was doing at such an early hour. Defendant replied that he

was a construction worker looking for work. When asked on two separate

occasions, Defendant denied knowing Salas. Martinez asked Defendant if he

could search his truck. Defendant consented, but Martinez did not find anything

illegal. Defendant was allowed to leave. Later that day, approximately 330

pounds of marijuana was found near mile marker 13 on Hachita Road.

      At trial Salas testified that he and Defendant had been working together at

D & G Construction in Lordsburg, New Mexico, and had been friends for several

years. On May 24 Defendant asked him whether he wanted to split $1,000. He

would need to drive to Hachita Road the following morning, stop around mile

marker 8, and then wait while people threw “stuff” in the back of his truck. The

next morning events went as planned. Defendant stopped at mile marker 10 while

Salas continued on to mile marker 8, where his truck was loaded. Salas stated

that after he was arrested, he initially had not implicated Defendant but then

decided to tell the truth. He said he had lied because he was frightened.


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      David Baeza testified that Defendant and Salas had worked for him at D &

G for six to eight months. He was aware that Defendant and Salas had known

each other even before working for him.

      Border Patrol Agent Robert Booth testified that he had been stationed in the

vicinity of the Playas smelter in the early morning of May 25. There were no

other vehicles in the vicinity of the smelter from 4:00 a.m. until the time he was

radioed by Martinez for assistance. Once he arrived at the scene, Booth observed

Defendant and Salas signaling and mouthing messages to each other.

      Senior Customs Special Agent James Long testified about his interview of

Defendant at the Deming Customs office the afternoon of May 25. Defendant

told Long that he had been stopped by Agent Martinez while coming back from

applying for a job at the smelter in Playas. Long responded that he thought it was

too early to be applying for a job. Defendant then said that he had gone to the

gate of the plant but security had turned him away and told him to come back

later. When Long said that he would check with security, Defendant changed his

story and claimed that he had not made it to the smelter and had decided to turn

around before he got there because he lacked vehicle insurance.

      Customs Agent John Czapko testified that Defendant’s truck had been

searched on May 25 after Defendant’s arrest. A pair of binoculars was found on

the bench seat. The binoculars were admitted into evidence. Czapko further


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testified, however, that (1) Defendant had made a statement that the binoculars

did not work and (2) Salas had never indicated that Defendant had been acting as

a lookout or scout. During cross-examination, Czapko disclosed that Defendant’s

truck had been seized without a warrant. Defense counsel moved to suppress the

binoculars. The district court granted the motion to suppress and agreed to give a

curative instruction. At the request of defense counsel, the instruction was given

with the other instructions after the close of evidence. Agent Czapko’s testimony

was the only reference to the binoculars during the trial.

      Defendant testified at trial that he had traveled to the smelter in Playas

looking for work on the afternoon of May 24. Not finding anyone to help him

that afternoon, he left his home in Deming at approximately 4:00 a.m. the next

morning to travel to Playas again. He stated that it takes about an hour and a half

to travel from Deming to Playas. After traveling on Hachita Road about half-way

to the smelter, he decided to turn around because his truck was having problems.

On cross-examination he conceded that in his interview with Agent Long, he

likely had blamed his lack of vehicle insurance in addition to the vehicle trouble

as the reason for returning home. Defendant had recently been cited for lack of

insurance while driving another vehicle.




                                         -5-
Motion for Mistrial

      We review a trial court’s denial of a motion for mistrial for abuse of

discretion, see United States v. Linn, 31 F.3d 987, 993 (10th Cir. 1994), largely

because the trial court is in a better position than we are to judge the effect that

incompetent evidence might have upon the jury, see Maestas v. United States, 341

F.2d 493, 496 (10th Cir. 1965). Further, error in the admission of evidence “may

be cured by withdrawing the evidence from the jury’s consideration and

instructing the jury to disregard it . . . [unless the] character of the testimony is

such that it will create so strong an impression on the minds of the jurors that they

will be unable to disregard it in their consideration of the case, although

admonished to do so.” Id.

      We find no abuse of discretion here. The evidence against Defendant was

compelling. Salas directly implicated Defendant, Agent Martinez observed him

traveling in the same convoy as Salas, and there was simply no credible reason for

Defendant to be where he was at that time unless he was involved with Salas.

Defendant’s attempted explanations only dug his hole deeper. His denial of

knowing Salas showed consciousness of guilt, and his account of why he was on

Hachita Road was so incredible as to imply that there must have been a guilty

reason.




                                           -6-
      Moreover, the introduction of the binoculars could not have created so

strong an impression on the minds of the jurors that they would have been unable

to disregard it. First, the binoculars were only mentioned by one witness. Also,

the prosecutor did not refer to the binoculars in his opening statement. Finally,

the trial court gave the following jury instruction: “Mention has been made of a

pair of binoculars. You are to disregard any mention of any binoculars. They are

not relevant to any portion of this case and should play no role in your

deliberations.” As stated in United States v. Carter, 973 F.2d 1509, 1513 (10th

Cir. 1992), courts must “presume jurors will remain true to their oath and

conscientiously follow the trial court’s instructions.”

Ineffective Assistance of Counsel

      Defendant claims that he received ineffective assistance of counsel in

violation of the Sixth Amendment because counsel failed to move to suppress the

binoculars prior to trial. Strickland v. Washington, 466 U.S. 668, 687 (1984), sets

forth the following test for ineffective assistance of counsel:

             First, the defendant must show that counsel’s
             performance was deficient. This requires showing that
             counsel made errors so serious that counsel was not
             functioning as the “counsel” guaranteed the defendant
             by the Sixth Amendment. Second, the defendant must
             show that the deficient performance prejudiced the
             defense. This requires showing that counsel’s errors
             were so serious as to deprive the defendant of a fair
             trial, a trial whose result is reliable.


                                          -7-
When evaluating ineffective assistance claims, reviewing courts need not

determine whether counsel’s performance was defective before evaluating the

prejudice prong. See id. at 697.

      To establish prejudice Defendant “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

      Our analysis of Defendant’s mistrial claim disposes of the issue. In light of

the compelling evidence at trial, the brief mention of the binoculars, and the

curative instruction, it is clear that there was no prejudice.

      We AFFIRM the judgment of the district court.

                                                 ENTERED FOR THE COURT


                                                 Harris L Hartz
                                                 Circuit Judge




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