                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-22-2009

USA v. Michael Mendoza
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4753




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http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1163


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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 07-4753
                                     _____________

                            UNITED STATES OF AMERICA

                                              v.

                                 MICHAEL MENDOZA,
                                         Appellant

                                    _______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                  (D.C. No. 06-cr-167)
                      District Judge: Honorable Joy Flowers Conti
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 21, 2009

            Before: FUENTES, JORDAN and NYGAARD, Circuit Judges.

                                  (Filed: June 22, 2009)
                                    _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       A jury found Michael Mendoza guilty of conspiracy to distribute and possess with

intent to distribute five kilograms or more of cocaine, and the United States District Court

for the Western District of Pennsylvania sentenced him to 240 months in prison and ten
years of supervised release. He filed a timely appeal from the District Court’s judgment

of conviction and sentence, challenging the Court’s decisions to deny his motion to

suppress evidence and to allow the government to admit evidence of his prior drug

conviction. Mendoza also alleges that the government denied him due process of law by

failing to disclose exculpatory information that it had. Because the District Court did not

clearly err by admitting the challenged evidence or abuse its discretion by admitting

evidence of a prior conviction, and because Mendoza’s due process argument is not

properly before us, we will affirm.

I.     Background

       On January 5, 2006, law enforcement officers in Pittsburgh, Pennsylvania

conducted surveillance of a residence on Spring Garden Avenue that they suspected was

used in the sale of illegal drugs. During the surveillance, officers saw Mendoza leave the

residence and drive away in a vehicle with a Texas license plate. Officer Edward Walker

followed Mendoza to a residence on Province Street and observed him enter and emerge

with a large plastic garbage bag. Mendoza then left in his vehicle, and Walker continued

to follow him.

       Meanwhile, a police informant entered the Spring Garden residence and purchased

a kilogram of cocaine from brothers Dan and Tim Bill. The brothers had previously told

the informant that they received their cocaine from Texas. After the controlled buy,

officers arrested the Bill brothers and executed a warrant to search the Spring Garden



                                             2
residence. The search yielded six kilograms of cocaine and other evidence of drug

trafficking.

       Officers at the Spring Garden residence informed Officer Walker of the results of

their search, and he promptly caused Mendoza to pull over. Officer Walker approached

Mendoza’s car with his gun drawn and ordered Mendoza out of the car. Mendoza

complied with the order, and backup officers arrived, prompting Walker to holster his

weapon. Walker had his weapon drawn for approximately ten seconds. After Mendoza

exited the car, Walker asked him to empty his pockets. Mendoza complied, and one of

the backup officers retrieved Mendoza’s identification. When Walker was informed of

Mendoza’s name, he recalled having previously arrested Mendoza for cocaine possession.

For his own and his fellow officer’s safety, Walker decided to handcuff Mendoza.

       Shortly after being handcuffed, Mendoza was given his Miranda warnings. He

was then asked for permission to search his car. Mendoza verbally consented to the

search and was read a Pennsylvania State Police “Waiver of Rights and Consent to

Search” form, which he signed. Officers then searched Mendoza’s car and seized a

number of items. A police dog was used in the search and indicated that the vehicle did

not contain drugs.

       The officers next asked for permission to search the Province Street residence that

they had seen Mendoza use. He gave a verbal consent and, after being transported to the

residence, signed a USDOJ/DEA “Consent to Search” form. The officers searched the



                                            3
residence, seized several items, and then took him to the police station for additional

questioning. Mendoza was ultimately released while officers reviewed the evidence and

questioned the Bill brothers.

       The Bill brothers eventually agreed to cooperate with police and identified

Mendoza as their source of cocaine. Mendoza was subsequently arrested and charged

with conspiracy to distribute and possess with intent to distribute five kilograms or more

of cocaine. Before trial, Mendoza brought a motion to suppress physical evidence and

oral statements attributed to him. The District Court held a suppression hearing and

denied Mendoza’s motion.

       In another pretrial filing, the government informed Mendoza and the District Court

that it planned to present evidence of Mendoza’s prior cocaine-related conviction to prove

intent, opportunity, knowledge, identity and the absence of mistake or accident. The

government also explained that evidence of the prior conviction was necessary to

establish the relationship between Mendoza and Officer Walker. Mendoza objected to

the admission of his prior conviction, arguing that it was prejudicial and would be used to

show propensity, but the District Court held that the evidence could be admitted.

       A jury found Mendoza guilty of conspiracy to possess and distribute cocaine, and,

on December 12, 2007, the District Court entered a judgment against Mendoza imposing

a sentence of 240 months in prison followed by ten years of supervised release. Mendoza

filed a timely appeal. As previously noted, he argues that the District Court erred by



                                             4
admitting evidence obtained during the searches of his car and residence and by allowing

the government to introduce evidence of his prior drug conviction.1 Mendoza also alleges

that the government denied him his due process rights by failing to turn over exculpatory

evidence.

II.    Discussion 2

       A.     Admission of Physical Evidence

       Mendoza consented to the searches of his car and residence but contends that his

consent was not voluntary and that the District Court should have suppressed the evidence

seized during the searches. Because the question of whether a consent was voluntary is

one of fact, we review the District Court’s determinations regarding voluntariness for

clear error. United States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003) (citation omitted).

“Accordingly, ‘if the district court’s account of the evidence is plausible in light of the

record viewed in its entirety,’ we will not reverse it even if, as the trier of fact, we would

have weighed the evidence differently.” United States v. Price, 558 F.3d 270, 277 (3d

Cir. 2009) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)).

       In determining whether a consent was voluntary, district courts are to consider the

totality of the circumstances, including “the age, education, and intelligence of the



       1
       Mendoza makes no argument challenging the District Court’s decision to admit
statements he made following the traffic stop.
       2
        The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction to review the District Court’s final order under 18 U.S.C. § 1291.

                                               5
subject; whether the subject was advised of his or her constitutional rights; the length of

the encounter; the repetition or duration of the questioning; and the use of physical

punishment.” Id. at 277 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973),

and United States v. Kim, 27 F.3d 947, 955 (3d Cir. 1994)).

              1.     Consent to Search the Vehicle

       The District Court examined several factors in determining that Mendoza

voluntarily submitted to the search of his vehicle. It noted that, although he was in

handcuffs when he gave his consent, Mendoza was not subjected to prolonged or repeated

questioning and was treated in a professional and courteous manner by the officers

involved in the stop. Additionally, Mendoza was of age to voluntarily consent and had

experience with the criminal justice system. Finally, the Court noted that Mendoza was

read a consent form and gave both verbal and written consent to the search of his vehicle.

       Mendoza argues that Officer Walker made an extreme show of force by drawing

his weapon when he approached Mendoza’s car and contends that the show of force and

the unnecessary use of handcuffs affected the voluntariness of his consent. The District

Court, however, found that Officer Walker’s weapon was drawn for only ten seconds and

had been holstered for several minutes by the time Mendoza gave his consent to the

search of his vehicle. The Court also noted that Officer Walker felt it was necessary to

handcuff Mendoza for officer safety after recalling Mendoza’s prior arrest. Because the

District Court’s account of the evidence is plausible in light of the record, we conclude



                                              6
that it did not err in finding that Mendoza voluntarily consented to the search of his

vehicle.

              2.       Consent to Search the Residence

       The Court next analyzed whether Mendoza voluntarily consented to the search of

the Province Street residence. It found that the officers treated Mendoza in a professional

manner and that there was no evidence of threats or other intimidating behavior. It noted

that Mendoza consented both verbally and in writing to the search of the residence and

found that, although Mendoza had been detained for approximately an hour and fifteen

minutes by the time he signed the written consent, the length of Mendoza’s detainment

did not alter the voluntary nature of his consent. As the District Court’s account of the

evidence is plausible, we conclude that it did not err in holding that Mendoza voluntarily

consented to the search.

       B.     Admission of Evidence of a Prior Conviction

       Mendoza contends that the District Court erred by allowing the government to

introduce evidence of his prior drug conviction. We review for abuse of discretion a

district court’s decision to admit evidence of a prior conviction. United States v.

Greenidge, 495 F.3d 85, 95 (3d Cir. 2007) (citing United States v. Saada, 212 F.3d 210,

220 (3d Cir. 2000)).

       Federal Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs

or acts is not admissible to prove the character of a person in order to show action in



                                              7
conformity therewith. It may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake

or accident ... .” The Supreme Court has established a four-part test for admission of

Rule 404(b) evidence: “(1) the evidence must have a proper purpose; (2) it must be

relevant; (3) its probative value must outweigh its potential for unfair prejudice; and (4)

the court must charge the jury to consider the evidence only for the limited purposes for

which it is admitted.” Givan, 320 F.3d at 460 (citing Huddleston v. United States, 485

U.S. 681, 691-92 (1988)).

       In this case, the District Court found that the admission of evidence relating to

Mendoza’s prior conviction met each part of the test. Independently, we conclude that

evidence of Mendoza’s prior drug conviction was admissible under Rule 404(b) as

evidence of his continuing relationship with his co-conspirators, since that conviction also

involved Dan and Tim Bill. See United States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002)

(“prior bad act evidence may be admitted for the purpose of demonstrating [defendant’s]

knowledge of a conspiracy and relationship with one of its members”).

       C.     Failure to Disclose Exculpatory Evidence

       Mendoza alleges that, while his case has been on appeal, the government has

discovered and turned over new evidence. He further avers that the newly produced

evidence is exculpatory in nature, and we should therefore grant him an evidentiary

hearing or a new trial.



                                              8
       We have long held that “[t]he only proper function of a court of appeals is to

review the decision below on the basis of the record that was before the district court.”

Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1165 (3d Cir. 1986) (citation omitted).

When new evidence is discovered while a case is on appeal, a defendant may bring a

motion for a new trial in the district court under Federal Rule of Criminal Procedure 33.

See United States v. Graciani, 61 F.3d 70, 77-78 (1st Cir. 1995) (holding that when new

evidence is discovered while a case is on appeal, the proper procedure is for the defendant

to file a Rule 33 motion in the district court). If the district court denies the motion, the

defendant may then appeal that decision. This process allows district courts to review

newly discovered evidence in the first instance. As the new evidence that forms the basis

of Mendoza’s argument was not part of the District Court record in this case, we will not

review it here.

III.   Conclusion

       Because the District Court did not clearly err in determining that Mendoza

voluntarily consented to the search of his vehicle and residence and did not abuse its

discretion in allowing the government to admit evidence of Mendoza’s prior drug

conviction, we will affirm.




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