                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          NOV 24 1998
                              TENTH CIRCUIT
                         __________________________                   PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                      No. 97-4111
                                                           (D. Utah)
 AHMAD R. SHAYESTEH,                               (D.Ct. No. 95-CR-106-S)

       Defendant-Appellant.


                             ORDER ON REHEARING


Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.



      This matter is before us on Defendant/Appellant’s Petition for Rehearing of

this court’s October 6, 1998 Order and Judgment affirming his conviction and

sentence. Mr. Shayesteh recites two grounds in support of his Petition: (1) the

court misconstrued his argument concerning the legality of law enforcement

questioning during a highway checkpoint detention, and (2) due to counsel’s

inadvertent failure to include the transcript of the sentencing hearing in the record

on appeal, the court should permit him to supplement the record with the
sentencing transcript and address his sentencing issues on the merits. 1 We deny

Mr. Shayesteh’s Petition for Rehearing on the first ground, but grant his Petition

to consider only the sentencing issues he raised on appeal.



      Mr. Shayesteh first argues the district court erred in sentencing because it

failed to include all the factual predicates of perjury in its obstruction of justice

finding. During the sentencing proceeding, the district court expressly found

      that the adjustment for obstruction of justice is clearly appropriate ...
      that during the course of the trial ... Mr. Shayesteh did commit
      perjury, and that perjury is outlined at page 153 and 154 of the trial
      transcript, and that his testimony was false and committed clearly in
      a manner that establishes perjury.


      A perjury finding in support of a sentence enhancement for obstruction of

justice “must contain two components,” United States v. Smith, 81 F.3d 915, 918

(10th Cir. 1996): (1) the finding must encompass all the factual predicates of

perjury (falsity, materiality, willful intent), and (2) the finding must specifically

identify the perjured testimony. Id. In this case the district court adequately

identified Mr. Shayesteh’s perjured testimony. However, the district court’s

findings fail to set forth the factual predicates of materiality and willful intent



      1
         On October 21, 1998, this panel granted Mr. Shayesteh’s motion to supplement
the record on appeal with the sentencing transcript.


                                          -2-
necessary to support its general perjury finding. While we have little doubt the

perjured testimony was both material and willful, the district court’s finding in

this case is indistinguishable from the finding we held deficient in Smith. 81 F.3d

at 918-19. Accordingly, we must remand this case to the district court for further

findings.



      Mr. Shayesteh also challenges the adequacy of the district court’s findings

as they pertain to his request for a sentence reduction as a “minimal” or “minor”

participant. The district court heard argument on this issue, but declined to give

Mr. Shayesteh a corresponding reduction. The court denied the reduction without

making an express finding concerning Mr. Shayesteh’s role as a “minimal” or

“minor” participant. Mr. Shayesteh argues the absence of an express finding on

this issue constitutes error under United States v. Underwood, 938 F.2d 1086

(10th Cir. 1991). We agree. Although there is no legal requirement that the

sentencing judge state specific reasons to support his finding that a defendant is

not entitled to an adjustment as a “minimal” or “minor” participant, see United

States v. Donaldson, 915 F.2d 612, 615-16 (10th Cir. 1990), 18 U.S.C. § 3553(c)

mandates that the judge make an express finding as to whether such an adjustment

is warranted. Absent a statement of the reasons for a particular sentence,

including findings as to each guideline adjustment issue the parties raise, we are


                                         -3-
left to speculate as to the validity of that sentence. See id. at 616; Underwood,

938 F.2d at 1092. We therefore remand to the district court for an express finding

on the issue of whether Mr. Shayesteh was a “minimal” or “minor” participant in

the drug offense.



      In summary, we grant Mr. Shayesteh’s Petition for Rehearing for the

limited purpose of considering the alleged sentencing errors on the merits. On

review of those issues, we remand this case to the district court for additional

findings in accordance with this order. We affirm Mr. Shayesteh’s conviction and

sentence in all other respects.



                                       Entered by the Court:


                                       WADE BRORBY
                                       United States Circuit Judge




                                         -4-
                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              OCT 6 1998
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 97-4111
                                                             (D. Utah)
 AHMAD R. SHAYESTEH,                                 (D.Ct. No. 95-CR-106-S)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, BRORBY, 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



      Mr. Shayesteh was convicted of two counts of possessing a controlled


      *
          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.
substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The

first count involved cocaine and the second methamphetamine. The district court

sentenced him to 262 months of incarceration. Mr. Shayesteh appeals, asserting

that the district court should have suppressed certain evidence and that it erred in

sentencing him and in denying his motion for a new trial. We exercise

jurisdiction under 28 U.S.C. § 1291, and affirm the conviction and the sentence.



      On May 22, 1995, the Utah Highway Patrol filed an application with a state

court for authority to establish and operate an administrative traffic checkpoint. 1

A state magistrate judge granted permission to do so. The order provided the

roadblock was for purposes of checking drivers’ licenses and registrations, and

looking for impaired drivers. The order also provided, in part: “[U]nless the

officer making the initial contact ... has reasonable suspicion that criminal activity

has occurred ... the officer shall not further detain the vehicle or its occupants nor

ask for consensual permission to search the occupants or the vehicle.”




      1
         The application was filed pursuant to Utah’s Administrative Traffic Checkpoint
Act which can be found at § 77-23-101 to 105 of the Utah Code Annotated. In general
terms, this law allows a magistrate to issue written authority to the Highway Patrol to
establish and operate a traffic checkpoint under specified conditions. Utah Code Ann.
§ 77-23-104.


                                          -2-
      The roadblock was set up and operating on a highway in southern Utah on

Memorial Day 1995. Northbound vehicles were stopped and then sent on their

way if there were no irregularities in their license and registration and if the

driver did not appear impaired. If there was a problem, the driver and car were

sent off to the right lane, a secondary checkpoint.



      Mr. Shayesteh drove up to the checkpoint around five o’clock in the

afternoon. He was the sole occupant of his car. Trooper Joe Reynolds asked him

for his license and registration. Because Mr. Shayesteh could not find his

registration, the trooper directed him into the secondary checkpoint area.



      Trooper Reynolds went to his vehicle, ran a registration check, and learned

the vehicle was registered to Mr. Shayesteh. The trooper returned Mr.

Shayesteh’s license to him and told him everything was fine. At that point, Mr.

Shayesteh was free to leave. However, he was unable to leave as there were

vehicles in front of and behind him. While waiting for a chance to merge Mr.

Shayesteh’s vehicle back into the traffic lane, Trooper Reynolds carried on a short

conversation with him. The trooper engaged in this conversation in order to be

friendly.




                                          -3-
      The trooper asked Mr. Shayesteh where he was going. Mr. Shayesteh said

he was going to Salt Lake City for a few days. Because no luggage was visible in

the car, the trooper asked Mr. Shayesteh where his luggage was and Mr.

Shayesteh responded he did not have any. The trooper then asked what was in the

trunk, and Mr. Shayesteh told him the trunk was empty, and volunteered “would

you like to look?” Trooper Reynolds replied “sure.” Mr. Shayesteh got out of the

car and the trooper frisked him and searched the passenger compartment for

weapons. Mr. Shayesteh then opened the trunk with his key. Contrary to Mr.

Shayesteh’s earlier statement, the trunk contained two duffle bags. Mr. Shayesteh

said the bags were not his.



      The trooper took one of the bags out of the trunk to see if there was

anything behind it. A county sheriff’s officer was present with a certified drug

detection dog, although the dog was not being used at the roadblock site. The

dog, a Chesapeake Bay Retriever, sniffed the bag on the ground and alerted. Mr.

Shayesteh was then handcuffed, and a search of the bag revealed a large quantity

of cocaine and methamphetamine.



      Mr. Shayesteh moved to suppress the drugs. The motion was referred to a

magistrate judge. The magistrate judge held two hearings on the matter. Mr.


                                        -4-
Shayesteh testified at one of the hearings. The gist of his testimony was that he

did not consent to the search and only did as he was ordered. He denied that the

dog alerted. He described the fifty-five pound retriever as a “very tiny, very

small dog,” no bigger than the officer’s foot. He further testified the dog did not

react to the bag, but the officer did by picking it up, sniffing it, and stating he

smelled marijuana. The magistrate judge issued a Report and Recommendation

recommending denial of the motion. The district court adopted the Report and

Recommendation in its entirety over Mr. Shayesteh’s objection, and denied the

motion.



      Mr. Shayesteh also testified at trial. He stated a man in Arizona asked him

to deliver the bag in which the drugs were found to Utah, and that he had never

opened the bag. Mr. Shayesteh further testified that while he was in jail, a

trooper came to him with a ziplock baggie and had him touch it, which was how

his fingerprints came to be on a baggie of drugs found in the bag. Despite this

testimony, the jury found him guilty on both charges.



      At sentencing, the district court increased the offense level by two points

for obstruction of justice based upon the fact Mr. Shayesteh committed perjury at

trial by testifying under oath that he was framed by the officers and at the motion


                                           -5-
to suppress hearing with his testimony concerning the dog. The sentencing court

also failed to grant Mr. Shayesteh’s motion for a downward departure for being a

minimal participant.



      After sentencing, the district court denied Mr. Shayesteh’s motion for a

new suppression hearing, new trial, and request for an evidentiary hearing.



      On appeal, Mr. Shayesteh raises the following issues: (1) the trooper

detained him in violation of the roadblock authorization; (2) his consent was

tainted by his improper detention; (3) he did not consent to the search, and the

dog alert did not provide probable cause for a search; (4) the district court erred

in enhancing his sentence for perjury; (5) the district court erred by not

considering his motion for sentence reduction because he was a minor participant;

(6) the district court should have granted him a new trial due to ineffective

assistance of counsel; and (7) the district court should have granted an evidentiary

hearing to see if a new trial was warranted by newly discovered evidence.



Motion to suppress issues

      In support of his contention that the district court erred in denying his

motion to suppress, Mr. Shayesteh makes three arguments. He claims the trooper


                                          -6-
detained him after returning his license, in violation of the court’s order granting

authority for the roadblock. He argues his consent to search the car was tainted

by the illegal detention. And, he argues the district court erred in finding that he

consented to the search and that the dog sniff established probable cause for the

search of the bag.



      First, Mr. Shayesteh argues the trooper’s questioning of him after his

license had been returned constituted an illegal detention, rendering the resulting

search unlawful. He concedes the roadblock provided a legitimate basis for the

initial stop. Therefore, he only complains of the trooper’s actions after his

driver’s license was returned.



      The district court adopted the magistrate judge’s factual findings. The

magistrate judge found:

      The officer told the defendant everything was alright and gave the
      defendant’s license back and he took it and placed it in his wallet.
      Defendant was free to go at that point. However, defendant could
      not immediately reenter the flow of traffic because there was a
      vehicle with a boat in front of him and a vehicle behind him. Traffic
      would not permit his immediate entry into a lane of travel to go on
      his way.

“When we review an order granting a motion to suppress, we accept the trial

court’s factual findings unless clearly erroneous, and we view the evidence in the


                                          -7-
light most favorable to the district court’s finding.” United States v. Zapata, 997

F.2d 751, 756 (10th Cir. 1993) (internal quotation marks and citation omitted).

“A finding is ‘clearly erroneous’ when although there is evidence to support it,

the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” United States v. United States

Gypsum Co., 333 U.S. 364, 395 (1948).



      Mr. Shayesteh contends the trooper’s actions exceeded the scope of the

limitations provided in the roadblock authorization. His arguments on this point

hinge on his claim the magistrate judge erred in finding that the trooper’s

questions did not constitute a detention. The magistrate judge found Mr.

Shayesteh was not detained by the trooper, he was detained by the position of the

other vehicles at the checkpoint. Mr. Shayesteh fails to raise anything in the

record that demonstrates this finding to be clearly erroneous. 2



      Mr. Shayesteh also argues the trooper exceeded his authority under the



      2
         Mr. Shayesteh discusses the conflicting evidence on traffic volume at the time he
was delayed from leaving the roadblock. However, the magistrate judge’s factual finding
was premised on the location of vehicles that were out of the traffic lane, blocking Mr.
Shayesteh’s car. Mr. Shayesteh’s discussion of traffic volume and roadblock procedures
do not address this finding.


                                           -8-
roadblock authorization because “[a] plain reading of the Authorization can only

lead to the conclusion that consent searches were absolutely prohibited.” This is

simply not true. Our plain reading of the authorization leads to the conclusion

that asking for permission to search a vehicle was prohibited. Trooper Reynolds

did not ask for permission to search Mr. Shayesteh’s car; therefore, he did not

violated the terms of the authorization.



      As long as Trooper Reynolds was not the cause of the delay, he was not

prohibited from engaging Mr. Shayesteh in conversation. See United States v.

Angulo-Fernandez, 53 F.3d 1177, 1179 (10th Cir. 1995) (involving trooper and

driver of broken down car). The magistrate judge had the opportunity to evaluate

Trooper Reynolds and Mr. Shayesteh as they testified about the stop. At the

conclusion of this testimony, the magistrate judge found the trooper’s testimony

credible and Mr. Shayesteh’s incredible. The record simply does not support Mr.

Shayesteh’s contention that the magistrate judge was clearly erroneous in finding

Trooper Reynolds was not the cause of the delay.



      Second, Mr. Shayesteh argues any consent to search he may have given was

tainted by the initial illegality of the detention. As we have determined there was

no illegal detention in this case, we need not address this argument.


                                           -9-
      Third, Mr. Shayesteh contends the district court erred in finding he

consented to the search. The test is whether the consent was voluntarily given

under the totality of the circumstances. United States v. Price, 925 F.2d 1268,

1270 (10th Cir. 1991).



      The magistrate judge’s factual findings on this point, which were adopted

by the district court, included:

      While waiting for the traffic to clear in the collection lane and to free
      defendant’s vehicle to move back into the flow of traffic, Officer
      Reynolds had a short friendly conversation with defendant. ... The
      officer did not ask if defendant had any drugs or guns and did not ask
      for the permission of defendant to search the vehicle. The defendant
      ... volunteered “would you like to look [in the trunk]?”

The magistrate judge also determined Mr. Shayesteh opened the trunk of his car

without a request from the trooper. Mr. Shayesteh claims these findings are

“preposterous and clearly erroneous.” A review of the transcripts from the

hearings on the motion to suppress shows these findings were fully supportable

and were certainly not clearly erroneous. We agree with the magistrate judge that

Mr. Shayesteh’s consent was voluntarily given. 3


      3
         Mr. Shayesteh claims “it is preposterous to conclude that the defendant would
claim that he did not have anything in the trunk and then offer the trooper a look in the
trunk, knowing he had luggage in the trunk.” Reiterating his point, he states such a
notion is “inconceivable.” It is neither preposterous nor inconceivable. More than a few
criminals have made such offers in the hopes that law enforcement officials would think
they had nothing to hide. Such reliance on hyperbole instead of evidence is a sure sign of

                                           -10-
       Mr. Shayesteh also argues that by subjecting him to a frisk and by letting

other law enforcement officials gather, the trooper created a coercive environment

that vitiated any consent. However, Mr. Shayesteh volunteered to allow the

trooper to look in the trunk before the frisk and before any other officers or

troopers joined the two. Because of the order of events, these factors could not

have affected the voluntariness of Mr. Shayesteh’s offer to allow a search. 4



       Mr. Shayesteh also argues his consent limited the scope of the search to a

“look” in the trunk. By moving and searching the bag, he argues, the trooper

exceeded the terms of the consent. However, once Mr. Shayesteh opened the

trunk and it was found, contrary to his previous statements, to contain luggage,

the trooper had reasonable suspicion justifying further investigation.

Furthermore, moving one bag out of the trunk to see if anything was behind it

would be consistent with permission to take a “look” in the trunk.



       Mr. Shayesteh also contends the narcotics sniffing dog’s alert to the bag



a weak argument.

       4
         Mr. Shayesteh cites United States v. Turner, 928 F.2d 956 (10th Cir.), cert.
denied, 502 U.S. 881 (1991), in support of his argument on this point. That case,
however, dealt with a show of authority prior to consent. Id. at 959.


                                           -11-
from his trunk did not provide probable cause to search the bag. The district

court case cited by Mr. Shayesteh in support of his argument on this point, United

States v. Kennedy, 955 F. Supp. 1331 (D.N.M. 1996), has since been reversed by

this Circuit, see United States v. Kennedy, 131 F.3d 1371 (10th Cir. 1997),

petition for cert. filed (U.S. Jun. 22, 1998) (No. 97-9625). An alert by a certified

narcotics sniffing dog provides probable cause for a search and arrest. United

States v. Williams, 726 F.2d 661, 663 (10th Cir.), cert. denied, 467 U.S. 1245

(1984). As there is no question the dog used in this case was certified, there was

probable cause for the search of the bag and its contents.



      For these reasons, we affirm the district court’s denial of Mr. Shayesteh’s

motion to suppress.



Sentencing issues

      Mr. Shayesteh argues the district court erred in sentencing because it

enhanced his sentence for perjury and because it refused to consider his motion

for a reduction based on his alleged status as a minimal participant.

Unfortunately, he failed to provide a copy of the sentencing hearing transcript in

the record on appeal. We cannot determine whether the district court failed to

make a full finding of obstruction of justice, encompassing all of the factual


                                         -12-
predicates of perjury, as Mr. Shayesteh contends, without reference to the

transcript of the hearing. Similarly, we cannot review whether the district court

failed to properly address Mr. Shayesteh’s motion for a downward departure for

being a minimal participant (indeed, we cannot even determine if Mr. Shayesteh

made such a motion) without reference to the transcript of the hearing.



      “This Court will decline to consider a claim in the absence of the

appropriate documents in the record on appeal, since any discussion of such a

claim would be speculation.” United States v. Vasquez, 985 F.2d 491, 494 (10th

Cir. 1993). It is the appellant’s responsibility to insure that all the necessary

materials are part of the record. Id. at 495. See Fed. R. App. P. 10; 10th Cir. R.

10.1, 10.3, 10.3.1(c). The transcript of the sentencing hearing is essential to the

issues Mr. Shayesteh raises. We will not decide them without it.



Motion for new trial issues

      According to Mr. Shayesteh, the district court should have granted him a

new trial due to the ineffective assistance of his trial counsel. 5 This court

requires claims of ineffective assistance of counsel to be brought on collateral


      5
       Mr. Shayesteh’s counsel appropriately raised this issue as obligated by the
Supreme Court’s decision in Anders v. California, 386 U.S. 738 (1967).


                                          -13-
review, not direct appeal. See United States v. Galloway, 56 F.3d 1239, 1240

(10th Cir. 1995). We see no reason not to apply that rule in this case.



      Mr. Shayesteh argues the district court erred in denying his motion for a

new trial and in denying him an evidentiary hearing on the issues raised in the

motion. “We review the denial of a motion for a new trial for an abuse of

discretion.” See United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997).



      Federal Rule of Criminal Procedure 33 authorizes courts to grant motions

for new trials “if required in the interest of justice.” Such motions are “not

regarded with favor and should only be granted with great caution.” Sinclair, 109

F.3d at 1531. When a motion for a new trial is premised on newly discovered

evidence, the defendant must show:

      “(1) the evidence was discovered after trial; (2) the failure to learn of
      the evidence was not caused by his own lack of diligence; (3) the
      new evidence is not merely impeaching; (4) the new evidence is
      material to the principal issues involved; and (5) the new evidence is
      of such a nature that in a new trial it would probably produce an
      acquittal.”

Id. (quoting United States v. Stevens, 978 F.2d 565, 570 (10th Cir. 1992)).



      The new evidence offered by Mr. Shayesteh consists of photographs of the

roadblock scene and a newspaper article quoting Trooper Reynolds. The

                                        -14-
government did not give the photographs to the defense until well after the

suppression hearing. Mr. Shayesteh contends the photographs were relevant to

the suppression question because they demonstrate he could have easily re-entered

traffic. The district court determined the photographs would not have led to a

different result on the motion to suppress. We agree. The photographs do not

reflect the scene at the time the trooper was talking to Mr. Shayesteh, so they can

provide no information about whether he was blocked in by traffic. As such, they

fail the fourth prong of the test mentioned above; they are not material to the

principal issues involved. The district court did not abuse its discretion in

denying a new trial based on these photographs.



      Mr. Shayesteh also complains about the apparent destruction of the

negatives of the photographs taken around the time of his arrest. As the actual

photographs exist, we can see no prejudice or harm in the destruction of the

negatives.



      During the suppression hearing, Trooper Reynolds testified he had no

suspicions about Mr. Shayesteh or his vehicle. In a local newspaper article on the

arrest, however, the trooper is credited with “admitting to having a second sense

about the car and driver.” Mr. Shayesteh’s counsel did not discover the article


                                         -15-
until after trial. Because the article was published before trial, the district court

refused to consider it new evidence for Rule 33 purposes. The district court also

determined the article was no more than impeaching evidence. Mr. Shayesteh

contends this was error. We believe a newspaper article that does not even

provide a direct quotation on the material point is merely impeaching evidence.

The district court did not abuse its discretion in denying a new trial or

suppression hearing in light of this evidence.



      Mr. Shayesteh also argues the district court should have granted him an

evidentiary hearing to determine if any prejudice resulted from sending one of the

seized bags to the jury room during deliberations. His counsel did not object to

the admission of the bag during trial. At trial, Mr. Shayesteh testified he put

personal items in the bag and that he had stored the bag in the trunk of his car.

Mr. Shayesteh claims a post-trial inspection showed the bag contained different

items than he had put in the bag. He makes no attempt to explain why he thinks

exposure of these items to the jury may have been prejudicial. The district court

determined there was no evidence to support the claim that the jury may have

been influenced by the contents of the bag, or to support the assertion that the

contents of the bag were prejudicial. Mr. Shayesteh fails to persuade us these

findings were an abuse of discretion.


                                          -16-
      We have fully reviewed the record and Mr. Shayesteh’s argument and we

see no grounds for reversal. Therefore, we AFFIRM the conviction and the

sentence.



                                    Entered by the Court:


                                    WADE BRORBY
                                    United States Circuit Judge




                                     -17-
