               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-50031




UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

MORRIS PROCTOR, JR.,

                                           Defendant-Appellant.

                    ____________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                         EP-99-CR-302-ALL-P
                   _____________________________
                          December 8, 2000

Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Morris Proctor, Jr. (Proctor) appeals his conviction for

possession with intent to distribute marijuana, alleging that his

consent to search was involuntary and that the government committed

a discovery violation.    Finding no reversible error, we AFFIRM.

     I.   FACTUAL AND PROCEDURAL HISTORY

     Proctor, a sergeant in the United States Army stationed in

Georgia, stopped his vehicle at the Sierra Blanca checkpoint in the


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
early morning hours of February 22, 1999.           When the border patrol

agent   began making inquiries with respect to his citizenship and

identification, Proctor “started gripping” the wheel and looked

forward.    The agent asked Proctor whether he “could take a look

into his trunk.”        When Proctor answered, “Sure, go ahead,” the

agent asked Proctor to drive his vehicle to the right where the

secondary inspection area was located.

      The agent in the secondary inspection area also asked Proctor

if he could look into his trunk, and Proctor again responded, “Go

ahead.” When the trunk was opened, the agent smelled a strong odor

of marijuana. The agent at the secondary checkpoint requested that

the first agent retrieve his drug-sniffing canine.                The canine

alerted to the trunk of the car.         Inside the trunk, the agent saw

two   suitcases;   one    suitcase   had   an    identification    tag   with

Proctor’s   name   on    it.   The   border      patrol   agent   discovered

approximately 70 pounds of marijuana in the two suitcases.

      Prior to trial, Proctor moved to suppress the marijuana.             He

argued that he was unlawfully detained at the secondary inspection

point and that the agent searched the trunk without his voluntary

consent.    Proctor argued that he merely acquiesced to the border

patrol agent’s claim of authority. Proctor argued that the opening

of the trunk, the canine inspection, and the search of the luggage

were products of an illegal detention.          He argued that the evidence

discovered in the search should be suppressed.

      Following an evidentiary hearing on the motion to suppress,

                                     2
the   district   court      denied   the   motion.     The     district   court

determined that the referral to the secondary inspection point was

authorized and was not without justification based on Proctor’s

nervous behavior.          The district court also found that Proctor

consented to go to the secondary checkpoint.             The district court

determined that Proctor cooperated with the agents and consented to

open his     trunk   for    inspection.      The   district    court   rejected

Proctor’s argument that he acquiesced to the agents’ show of

authority.

      A jury convicted Proctor on one count of possession with

intent to distribute marijuana.             The district court sentenced

Proctor to 27 months’ imprisonment and two years’ supervised

release and ordered him to pay a $1,000 fine and a $100 assessment.

Proctor now appeals to this Court.

      II.   ANALYSIS

            A.   Voluntary Consent

      Proctor contends that he did not consent voluntarily to the

search of the trunk of his vehicle; he asserts that he acquiesced

in the border patrol agents’ show of authority.               He contends that

he was detained involuntarily at the checkpoint and the agents used

an element of coercion, i.e., “a show of lawful authority,” to

secure consent to open the trunk.          Proctor asserts that the traffic

signs leading to the checkpoint, the flashing lights, the traffic

cones, and the uniformed officers caused him to believe that the



                                       3
officers were “entitled to search.” He adds that the border patrol

agents did not inform him that he could refuse their requests to

search.     Proctor contends that his cooperation resulted from the

agents’   show    of    authority    and     that    his      military     background

contributed to his characterization of the agents’ requests to

search as “affirmative assertions of lawful authority.” He asserts

that because he did not voluntarily consent to the search, the

marijuana found in the trunk should have been suppressed.

     “Border      patrol    agents    may     briefly      detain    motorists     at

permanent immigration checkpoints to question them about their

citizenship . . . [and] may refer motorists to the secondary

inspection area with any ‘particularized reason.’”                   United States

v. Gonzalez-Basulto, 898 F.2d 1011, 1012 (5th Cir. 1990)(citations

omitted).      The     agents’   referral     of    Proctor     to   the    secondary

inspection area did not violate his constitutional rights. See id.

     The voluntariness of consent to a search is a question of fact

that is determined by an examination of the “totality of the

circumstances.”        Id. at 1012-13.       The government has the burden of

proving that      consent    was    given    freely     and    voluntarily.       See

Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045

(1973).     Consent is not given voluntarily if it was “coerced by

threat or force, or granted only in submission to a claim of lawful

authority.”      Id. at 233, 93 S.Ct. at 2051.

     The district court considers six factors in evaluating the


                                         4
voluntariness of consent:         (1) the defendant’s custodial status;

(2) the presence of coercive police procedures; (3) the extent and

level of cooperation with the police; (4) the defendant’s awareness

of his right to refuse to consent; (5) the defendant’s education

and   intelligence;      and    (6)   the   defendant’s    belief     that   no

incriminating evidence will be found.              See Gonzalez-Basulto, 898

F.2d at 1013.     This Court cannot overturn the district court’s

finding that consent was voluntarily obtained unless the finding is

clearly erroneous.       See id.      When a district judge’s finding of

consent is based on oral testimony at a suppression hearing, the

clear error standard of review of factual findings “is particularly

strong since the judge had the opportunity to observe the demeanor

of the witnesses.”       United States v. Gonzales, 79 F.3d 413, 421

(5th Cir. 1996)(citation and internal quotations omitted).

      The   district    court   evaluated    the    above-mentioned    factors

before it denied Proctor’s motion to suppress.            The district court

found that the agents did not brandish weapons or threaten Proctor.

Proctor testified that he cooperated with the agents by agreeing to

open the trunk.        The district court found no evidence that the

agents “put any pressure” on Proctor to open the trunk.                      The

district court found no evidence that Proctor was of substandard

intelligence and noted that Proctor’s demeanor at the hearing

suggested otherwise.

      We have rejected a very similar claim.            In Gonzalez-Basulto,


                                       5
border patrol agents stopped a motorist at the Sierra Blanca

checkpoint and inquired regarding his citizenship; the motorist

responded nervously, and the agents referred him to the secondary

inspection area.     See 898 F.2d at 1012.      The agent asked whether

the motorist would mind opening the trailer for an inspection and

the motorist said, “No problem.”        Id.   A dog alerted on a row of

boxes in the trailer.    See id.    When the agents opened the boxes,

they discovered cocaine.    See id.

     This Court rejected the appellant’s argument in Gonzalez-

Basulto that his consent was not given voluntarily.         See id. at

1013.   We found that the agents did not threaten or pressure the

appellant to submit; the appellant cooperated with the agents; and

the appellant, although not well-educated, sufficiently understood

the circumstances.    See id.   We expressly noted that the agents did

not inform the appellant that he could refuse consent.         See id.

Nevertheless, under the totality of the circumstances, this Court

affirmed the district court’s finding that the appellant had

consented to the search.    See id.

     In the instant case, as the district court recognized, the

facts of Proctor’s case are practically identical to those in

Gonzalez-Basulto.    Proctor testified that the agent said, “Can you

open the trunk,” and he complied.       The agent testified that he did

not threaten, restrain, or touch Proctor and that he did not

display a weapon. The agent testified that Proctor twice consented

                                    6
to open the trunk when the agents asked for such consent.        Proctor

has not shown that the district court’s finding that he voluntarily

consented to a search of the trunk was clearly erroneous.1

            B.   Discovery Violation

      The day before Proctor’s trial began, a border patrol agent

who   had   questioned   Proctor   at   the   checkpoint   informed   the

prosecutor that Proctor had admitted ownership of the suitcases in

the trunk.    It is undisputed that the government did not disclose

this statement prior to trial and that Proctor had not made a

request for such evidence.    Neither is it disputed that, pursuant

to Rule 16 of the Federal Rules of Criminal Procedure, the court’s

general order of discovery directed the government to permit the

defendant to inspect and copy or photograph:

            The substance of any oral statement which the
            Government intends to offer in evidence at the
            trial made by the Defendant whether before or
            after arrest in response to interrogation by
            any person then known to the Defendant to be a
            Government agency.

      Relying on the district court’s general order of discovery,

Proctor argues that, in light of the prosecutor’s failure to

disclose the evidence, the district court erred in allowing the

prosecutor to elicit the testimony. We will assume solely for purposes

of this appeal that, pursuant to the district court’s discovery order,

the prosecutor should have disclosed the statement prior to trial.

      1
         See also United States v. Olivier-Becerril, 861 F.2d 424,
425-26 (5th Cir. 1988)(affirming denial of motion to suppress on
similar facts).

                                    7
Nonetheless, because any error was harmless, Proctor is not entitled to

any relief.

     We may reverse Proctor’s conviction only upon “a showing that the

error was prejudicial to the substantial rights of the defendant.”

United States v. Arcentales, 532 F.2d 1046, 1050 (5th Cir. 1976).

Proctor has failed to make such a showing.

     Proctor contends that the admission of this statement, without

prior notice, deprived him of the opportunity to investigate the

circumstances under which the statement was made, preempted any attempt

to suppress the statement, prejudiced his defense, and prevented him

from designing an intelligent defense strategy.       Further, Proctor

asserts that the surprise admission of his statement derailed his

defense strategy midway through trial in that his defense focused on the

theory that he did not know that marijuana was in the suitcases and that

he did not own the luggage.     He claims that his defense strategy

“undoubtedly would have been different if counsel had known of Proctor’s

purported statement claiming ownership of the bags[.]”

     We are not persuaded that Proctor has shown his substantial rights

were prejudiced. His contentions with respect to a different strategy

are all speculative in that he has not shown how he would have changed

his strategy.

     More importantly, in light of the other evidence at trial, Proctor

cannot show that this evidence violated his substantial rights.

Proctor’s friend, Gerald Bryant, purchased a one-way plane ticket for



                                   8
Proctor from Georgia to El Paso, Texas.       Bryant and Proctor flew

together to El Paso but Proctor claimed to have no idea where Bryant

went after they left the airport. Prior to leaving the airport, Bryant

rented one vehicle for Proctor and one vehicle for himself.       After

spending only a few hours in El Paso, Proctor began to drive his one-way

rental car back to Georgia.

     Upon questioning at the checkpoint, Proctor informed the border

patrol agents that the purpose for his trip to El Paso was shopping.

Proctor later changed his story and claimed he had flown to El Paso

because he was interested in finding a position as an instructor at Fort

Bliss. Proctor was the sole occupant of the car, and the brown suitcase

containing marijuana had an airline identification tag attached to it

bearing Proctor’s name. After the marijuana was discovered, Proctor

quickly volunteered to the agents that he may have been “set up.”

     Accordingly, because there was other evidence indicating Proctor’s

ownership of the suitcases and the evidence of his guilt was

overwhelming, Proctor has not shown that his substantial rights were

prejudiced.    The judgment of the district court is AFFIRMED.




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