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

                                                                         FEB 17 2000
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,
                                                       Nos. 99-4051
               Plaintiff - Appellee,                   and 99-4106


          v.                                             (D. Utah)
 FRANCISCO OCHOA-ZARAGOZA,                       (D.C. No. 97-CR-303-C)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.




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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34 (a)(2); 10th Cir. R. 34.1(G). This cause is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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.
      Francisco Ochoa-Zaragoza appeals his conviction and sentence for

possession of methamphetamine with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(A). Mr. Ochoa-Zaragoza claims that the district court erred

by: (1) denying his motion to suppress; (2) admitting testimony by a United

States Deputy Marshal about a conversation with Mr. Ochoa-Zaragoza in English

during transport to the courtroom; (3) limiting the Fed. R. Evid. 704(a) expert

opinion testimony of a language and linguistics expert regarding Mr. Ochoa-

Zaragoza’s ability to comprehend English; (4) admitting blurred photographs and

the seized methamphetamine evidence in violation of Fed. R. Evid. 403 because

the danger of unfair prejudice substantially outweighed the probative value; and

(5) failing to reduce his sentence pursuant to the “safety valve” provision of the

United States Sentencing Guidelines § 5C1.2. For the reasons stated below, we

affirm.



                                I. BACKGROUND

      On September 22, 1997, the Utah Highway Patrol stopped Mr.

Ochoa-Zaragoza at an administrative checkpoint, pursuant to a court order, 1 on


      1
        The stated purposes of the checkpoint were to inspect driver’s licenses,
registration certificates, and license plates; to check for outstanding warrants; to
inquire if drivers had been drinking or were impaired by, or in the possession of,
controlled substances; and to examine vehicles for required exterior safety
                                                                        (continued...)

                                         -2-
Interstate 70 near Green River, Utah. Trooper Riches, an eight-year law

enforcement veteran, asked the driver, Mr. Ochoa-Zaragoza, in English, for his

license and registration. Trooper Riches testified that Mr. Ochoa-Zaragoza said,

in English, that his license had been suspended. See R. Vol. II at 20. While Mr.

Ochoa-Zaragoza and the passenger were looking for the registration, Riches asked

who owned the truck, which had California license plates. After looking at the

registration listing Jacquez Cruz as owner, Mr. Ochoa-Zaragoza answered “Cruz

owns the truck.” Id. at 22-23. While waiting for the registration, Riches noticed

an empty truck bed with noticeable scratch marks on the bolts and only one duffle

bag of clothing behind the front seat. When asked, Mr. Ochoa-Zaragoza said

Denver was his destination. Trooper Riches testified that Mr. Ochoa-Zaragoza

appeared to understand his questions and answered in English. See e.g., id. at 25.

Trooper Riches also noted that both Mr. Ochoa-Zaragoza and the passenger

avoided eye contact.

      Trooper Riches asked Mr. Ochoa-Zaragoza to pull the truck out of the line

of traffic and to then step out of the truck. Ochoa-Zaragoza repeatedly changed

his answer about why he was going to Denver (visiting his cousin, then sister,



      1
       (...continued)
devices. The court order required that motorists could not be detained longer than
a reasonable time necessary to check these purposes, except for appropriate
enforcement of violations.

                                        -3-
then friend). See id. at 28. The passenger said he did not know why they were

going to Denver or for how long. Mr. Ochoa-Zaragoza told the passenger in

Spanish to tell Riches that they were going to find work in Denver, not knowing

that Riches, fluent in Spanish, overheard them. When questioned as to whether

Mr. Ochoa-Zaragoza had permission to have the truck, he said “yes.” Id. at 38.

He answered “no” when asked if he was in possession of any illegal drugs,

weapons, large amounts of money, or other illegal contraband. Mr. Ochoa-

Zaragoza responded “yes,” when Trooper Riches asked if he could search the

truck. R. Vol. III at 39. This conversation was solely in English. Trooper Riches

disputed Mr. Ochoa-Zaragoza’s testimony that he told Riches twice that he did

not understand English.

      A search of the passenger compartment revealed a pager and roll of duct

tape. Riches noticed scratch marks on the fuel access door bolts and then looked

at the fuel tank under the truck. He noticed apparent alterations of the clamp and

the tank with clean bolts on a dirty tank. A narcotics-sniffing dog and handler

circled the truck and alerted on the area of the fuel tank.

      Trooper Riches asked Mr. Ochoa-Zaragoza if he could take the truck to a

local garage to put it on a hoist. Mr. Ochoa-Zaragoza said “yes.” At the garage,

methamphetamine was discovered in seven sealed PVC-pipe containers in the fuel




                                          -4-
tank. Mr. Ochoa-Zaragoza was cited for driving on a suspended license, and he

and his passenger were placed under arrest.

      At the Highway Patrol station, Sergeant Christman began to interview Mr.

Ochoa-Zaragoza. Sergeant Christman gave the Miranda warning in English. He

testified that “I got the impression that he wasn’t understanding me, and I had

Trooper Riches give the Miranda in Spanish.” R. Vol. III at 87. Sergeant

Christman testified that Mr. Ochoa-Zaragoza waived his rights, in Spanish, and

agreed to talk to the officers. See id. Trooper Riches translated Sergeant

Christman’s questions and Mr. Ochoa-Zaragoza’s answers. Mr. Ochoa-Zaragoza,

in Spanish and some English, explained that he was to leave the truck in a

restaurant parking lot in Denver for another man to pick up. He acknowledged

the presence of the drugs but did not know the quantity. See id. at 88. He stated

that the passenger, his nephew, did not know about the drugs.

      Upon referral from the district judge, the magistrate judge held a hearing to

consider Mr. Ochoa-Zaragoza’s motion to suppress the search and statement

evidence. The magistrate judge rejected Mr. Ochoa-Zaragoza’s argument that his

detention at the checkpoint was unreasonable and that his lack of English ability

showed that he could not have consented to the search or waived his Miranda

rights. The district court adopted the magistrate judge’s findings and

recommendation and denied the motion.


                                         -5-
      A jury found Mr. Ochoa-Zaragoza guilty on the sole count of the indictment

for possession of methamphetamine with intent to distribute in violation of 21

U.S.C. § 841(a)(1), (b)(1)(A). Mr. Ochoa-Zaragoza received a sentence of 121

months, the low end of the applicable sentencing guideline range.



                                II. DISCUSSION

A. Motion to Suppress

      Mr. Ochoa-Zaragoza alleges that the district court erred by denying his

motion to suppress the search and statement evidence. He argues that because

Trooper Riches did not issue a citation for driving without a license until after the

search and did not return the truck’s registration, the subsequent seizure was

invalid and should be suppressed. Further, he argues that he did not knowingly

and intelligently consent to the search of the vehicle. Finally, Mr. Ochoa-

Zaragoza alleges that his incriminating statements, made after his arrest, should

be suppressed because he could not have understood his Miranda rights.

      “When reviewing a district court's denial of a motion to suppress, we

consider the totality of the circumstances and view the evidence in a light most

favorable to the government.” United States v. Villa-Chaparro, 115 F.3d 797,

800-01 (10th Cir. 1997). However, the ultimate determination of reasonableness

under the Fourth Amendment is a question of law that we review de novo. See id.


                                         -6-
      1. Initial Stop and Detention

      Mr. Ochoa-Zaragoza concedes that the initial stop at the administrative

checkpoint was valid and admits that “the defendant’s failure to present Trooper

Riches with a valid license justified an extension of the detention beyond the

average thirty (30) second stop at the roadblock.” Appellant’s Br. at 22.

However, he argues that the stop was impermissibly extended by Trooper Riches’

questions while retaining the truck’s registration.

      We analyze traffic stops, which are analogous to investigative detentions,

under the principles stated in Terry v. Ohio, 392 U.S. 1 (1968). See United States

v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996). During a routine traffic stop,

an officer may inquire about travel plans and relationship with a passenger

without exceeding the scope of the stop. See United States v. Hernandez, 93 F.3d

1493, 1499 (10th Cir. 1996). To detain a driver for further questioning not

related to the initial stop, an officer must have “an objectively reasonable

articulable suspicion that illegal activity has occurred or is occurring.” United

States v. Soto, 988 F.2d 1548, 1554 (10th Cir. 1993). When an officer retains the

driver’s license and registration, the driver is not free to leave, see United States

v. Walker, 933 F.2d 812, 817 (10th Cir. 1991); the resulting detention must be

supported by reasonable suspicion.




                                          -7-
       Factors that justify reasonable suspicion to permit additional questioning,

all present here, include driving with a suspended license, lack of proof of

ownership or authority to operate the vehicle, and inconsistent destination

statements. See United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.

1998). Our reasonable suspicion inquiry involves the totality of the

circumstances. See United States v. Sokolow, 490 U.S. 1, 8 (1989). We agree

with the district court 2 that the question of ownership of the truck, inconsistent

statements about destination, lack of luggage, and freshly scratched, unusual bolts

created reasonable suspicion to support the continued detention and questioning.

See Report & Recommendation at 24 (Aug. 17, 1998).



      2. Consent to Search

      Mr. Ochoa-Zaragoza argues that he did not understand the conversation in

English with Trooper Riches so he could not have knowingly or voluntarily

consented to the search. A valid consent to search must be “freely and

intelligently given.” Soto, 988 F.2d at 1557. Voluntariness is a question of fact

to be determined by examining the totality of circumstances. See Ohio v.

Robinette, 519 U.S. 33, 40 (1996). Trooper Riches testified that Mr. Ochoa-



      2
       The district court adopted the Report and Recommendation of the
magistrate judge and denied the motion to suppress.

                                          -8-
Zaragoza conversed in English and gave knowing consent. The district court

specifically found Trooper Riches’ testimony more credible than Mr. Ochoa-

Zaragoza’s. See Report & Recommendation (Aug. 17, 1998) at 25. We note that

“judging the credibility of the witnesses, determining the weight to be afforded

the testimony, and drawing reasonable inferences and conclusions from the

testimony are within the province of the district court.” United States v. Gama-

Bastidas, 142 F.3d 1233, 1239-40 (10th Cir. 1998). Mr. Ochoa-Zaragoza

responded to Trooper Riches’ questions as expected of one who speaks English.

He did not attempt to withdraw consent or object to the search and presented no

evidence of coercion. We cannot conclude that the district court clearly erred

when it found voluntary consent.



      3. Miranda Waiver

      Mr. Ochoa-Zaragoza alleges that his incriminating statements, made after

his arrest, should be suppressed because he could not have understood his

Miranda rights. He argues that his limited education, unfamiliar surroundings,

and cultural differences prevented him from understanding his Miranda rights.

Both Christman and Riches testified that Ochoa-Zaragoza was notified of his

Miranda rights in English and Spanish and voluntarily waived those rights. The

district court’s findings that Mr. Ochoa-Zaragoza waived his Miranda rights and


                                        -9-
that his statements to Christman and Riches were knowingly and intelligently

given are not clearly erroneous.



B. Testimony by Deputy Marshal

      Mr. Ochoa-Zaragoza argues that the district court erred by admitting

testimony by a United States Deputy Marshal about a conversation with Mr.

Ochoa-Zaragoza in English during transport to the courtroom. 3 He argues that the

conversation was an impermissible interrogation outside the presence of counsel,

violating his Miranda rights. Once a defendant has invoked his right to counsel,

law enforcement officers cannot interrogate the defendant outside the presence of

his attorney unless the defendant waives the right. See United States v.

Roman-Zarate, 115 F.3d 778, 782 (10th Cir. 1997) (citing Miranda v. Arizona,

384 U.S. 436, 474 (1966)).

      Mr. Ochoa-Zaragoza appears to have waived his right of appeal on this

issue. See R. Vol. IV at 84 (regarding objection to Deputy Marshal’s testimony,

“I’m going to strike my objection”); Fed. R. Evid. 103. Absent a proper


      3
        The Deputy Marshal testified that while transporting Mr. Ochoa-Zaragoza
to the courtroom, he asked how long the trial would be. Mr. Ochoa-Zaragoza
responded that he thought the trial would last about four days. When the Marshal
asked if the jury had been picked, Mr. Ochoa-Zaragoza responded “yes.” Mr.
Ochoa-Zaragoza responded “in Utah,” when asked where he had been arrested.
Mr. Ochoa-Zaragoza also responded “yes” to a question confirming the name of
his lawyer. The entire conversation was in English. See R. Vol. IV at 77-78.

                                       -10-
objection, the alleged evidentiary error is waived for appeal except for plain error.

See United States v. Mendoza-Salgado, 964 F.2d 993, 1008 (10th Cir. 1992). We

find no such plain error.

      Even if the appeal on the issue were preserved, Mr. Ochoa-Zaragoza’s

Miranda rights were not violated because the conversation was not an

interrogation. 4 Incriminating statements made during this type of casual

conversation with law enforcement officials are not the product of interrogation.

See United States v. Criswell, 696 F.2d 636, 639 (8th Cir. 1983); United States v.

Hackley, 636 F.2d 493, 499-500 (D.C. Cir. 1980). The district court did not err

by admitting the Marshal’s testimony.



C. Expert Opinion Testimony

      Dr. Steven Sternfeld, a language and linguistics expert, testified at the trial,

expressing his opinion that Mr. Ochoa-Zaragoza could not carry on an extended

English conversation. However, Mr. Ochoa-Zaragoza argues that the district

court erred in failing to admit additional testimony of Dr. Sternfeld, concluding

that Mr. Ochoa-Zaragoza lacked the ability to comprehend or speak English

during questioning at the checkpoint and at the Green River garage. We review



      4
        The evidence indicates that the Deputy Marshal did not know that English
ability was an issue at the trial.

                                         -11-
the trial court's decision to admit or exclude expert testimony under the abuse of

discretion standard. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, ___, 119

S. Ct. 1167, 1176 (1999). The record reveals that the district court had concerns

about the reliability of Dr. Sternfeld’s testimony, 5 since he was not present at the

conversations at the checkpoint and the garage. The court also found that the

testimony would not be helpful under Fed. R. Evid. 702 (Testimony by Experts),

would be prejudicial, and that the jury could draw its own conclusions from the

evidence about Mr. Ochoa-Zaragoza’s English abilities. Thus, given these

concerns and the other admitted expert testimony, we hold that the district court

did not abuse its discretion in excluding Dr. Sternfeld’s specific testimony that

Mr. Ochoa-Zaragoza could not comprehend the conversations with Trooper

Riches at the checkpoint and the Green River garage.



D. Photographs and Methamphetamine Evidence

      Mr. Ochoa-Zaragoza argues that the district court erred in admitting blurred

photographs of the scratched screws on the truck, photographs of the canisters

found in the fuel tank, and the actual seized canisters and methamphetamine. He


      5
        The district court specifically stated that the disputed expert testimony
“isn’t reliable because the doctor, expert that he is, was not there [at the
conversations between Mr. Ochoa-Zaragoza and Trooper Riches]. And getting
one side from a written [police] report and one side from the defendant is not
reliable.” R. Vol. IV at 98; see also id. at 97.

                                         -12-
claims that admission of this evidence violates Fed. R. Evid. 403 because the

danger of unfair prejudice substantially outweighed the probative value.

Admission of evidence under Rule 403 is reviewed only for an abuse of

discretion. See United States v. Wacker, 72 F.3d 1453, 1469 (10th Cir. 1996).

We find no abuse of discretion.



E. Sentencing Safety Valve Provision

       Mr. Ochoa-Zaragoza argues that the district court abused its discretion by

denying a reduced sentence pursuant to the “safety valve provisions,” U.S.S.G.

§ 5C1.2 and 18 U.S.C. § 3553(f)(1)-(5). Section 3553(f) serves “as a ‘safety

valve’ to permit courts to sentence less culpable defendants to sentences under the

guidelines, instead of imposing mandatory minimum sentences,” United States v.

Acosta-Olivas, 71 F.3d 375, 378 (10th Cir. 1995), and provides that the district

court shall impose a sentence pursuant to the sentencing guidelines, without

regard to the statutory minimum, if the defendant meets the section’s criteria. See

18 U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2 (adopting verbatim the language

of section 3553(f)). The district court’s conclusion that the defendant “is not

eligible for relief under § 3553(f) is reviewed for clear error.” Roman-Zarate,

115 F.3d at 784.




                                        -13-
      As the government noted, even if he qualified, the safety valve provision

would not reduce Mr. Ochoa-Zaragoza’s sentence. While the provision would

prevent the application of the statutory minimum of ten years, see 21 U.S.C.

§ 841(b)(1)(A)(viii), the sentencing guidelines would still apply. Since Mr.

Ochoa-Zaragoza’s sentence range under the guidelines (based on his offense level

of 32) was 121 to 151 months, which is greater than ten years, the safety valve

provides no benefit.

      The district court determined that even if Mr. Ochoa-Zaragoza’s sentence

range were lower, 6 he did not qualify for the safety valve reduction because the

court specifically found him to be untruthful and thus not qualified under 18

U.S.C. § 3553(f)(5). 7 The district court’s findings are supported by the record

and are not clearly erroneous. See Anderson v. City of Bessemer City, 470 U.S.

564, 573-74 (1985).




      6
       Mr. Ochoa-Zaragoza appears to also argue, as he did at the sentencing
hearing, that his offense level should have been reduced for aberrant conduct, see
U.S.S.G. ch. 1, pt. A, intro. 4(d), or for being a minimal participant, see U.S.S.G.
§ 3B1.2(a). The district court’s findings refusing these sentencing reductions are
supported by the record and are not clearly erroneous.
      7
        “The defendant has truthfully provided to the Government all information
and evidence the defendant has concerning the offense or offenses that were part
of the same course of conduct or of a common scheme or plan.” 18 U.S.C.
§ 3553(f)(5).

                                        -14-
                       III. CONCLUSION

For the reasons stated above, the conviction and sentence are AFFIRMED.


                                      ENTERED FOR THE COURT


                                      Stephen H. Anderson
                                      Circuit Judge




                               -15-
