                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                         UNITED STATES COURT OF APPEALS                  March 30, 2011

                                    TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                           Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff–Appellee,

 v.                                                          No. 10-4039
                                                   (D.C. No. 2:08-CR-00395-TC-1)
 EDUARDO JIMENEZ-VALENIA, a/k/a                               (D. Utah)
 Eduardo Jimenez-Valencia,

           Respondent–Appellant.



                                 ORDER AND JUDGMENT*


Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.


       Eduardo Jimenez-Valenia1 appeals several rulings by the district court. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                             I

                                             A

       Utah Highway Patrol Trooper Jared Withers stopped a truck driven by Jimenez for

speeding. Withers noticed, as he approached, that the truck body appeared to have been

       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
         Because there was conflicting evidence below as to the Appellant’s last name,
we refer to him as “Jimenez.”
lifted. After being asked for his license and registration, Jimenez provided Withers his

Oregon driver’s license but a title for the vehicle in the name of Juan Torrez-Chavez. By

way of explanation, Jimenez told Withers he was en route from California to Kansas and

that Juan was a friend who loaned him the truck.

       Withers and Jimenez conversed about Jimenez’s trip and Withers’ work. Withers

gave Jimenez a warning and wished him a nice day. However, after walking away from

Jimenez, he turned and asked for permission to ask “a few more questions.” Jimenez

consented. Withers asked if Jimenez had anything illegal in the car. Jimenez indicated

that he did not. Withers asked for permission to search the truck. Jimenez consented.

       As he prepared to search the truck, Withers told Jimenez to “go stand about 100

feet” in front of the vehicle. Withers informed Jimenez that “if he needed anything” he

could “just call” for his attention. Noticing that the vehicle was raised and the passenger

side floorboard was covered with a mat rather than carpet, Withers suspected that there

was a hidden compartment underneath the cab of the truck. Withers peeled back a black

console that was affixed to the transmission hump by bolts in the floor, suggesting an

entrance to a compartment. He began to remove the console, but elected to handcuff

Jimenez while he searched the compartment. He called Jimenez to the truck, told him

that he had found the hidden compartment, and handcuffed him while he proceeded to

explore the compartment.

       Inside the compartment, Withers discovered packages wrapped in plastic.

Believing the packages contained methamphetamine, he arrested Jimenez. Nineteen



                                            -2-
packages of methamphetamine were removed from the compartment, containing 6622

grams of a mixture that included 6370 grams of methamphetamine.

       Jimenez filed a motion to suppress, arguing that Withers had prevented Jimenez

from limiting or withdrawing his consent to search the truck. The district court assumed

without deciding that Jimenez had a Fourth Amendment privacy interest in the truck, but

rejected his argument that the Fourth Amendment prohibited the search.

                                              B

       Prior to the voir dire of the jury in Jimenez’s trial, the trial judge expressed her

intention to inform the potential jurors that Jimenez was “from Mexico” in order to

explore potential juror biases. Concerned that the jury would infer from such a statement

that Jimenez was in the country illegally, Jimenez’s counsel requested, and the court

agreed to, the alternative formulation that Jimenez “was not born in the United States.”

However, when the potential jurors were before the court, the district court instead stated

that Jimenez was “not from the United States.”

       During questioning, several jurors expressed their concern that they would be

biased in a case involving an illegal immigrant, apparently assuming that Jimenez was in

the country illegally. Three other potential jurors were overheard having a “one-sided

discussion about immigration.”

       After voir dire, defense counsel urged the judge to give a curative instruction.

Ultimately, the court attempted to correct the error by informing the jury that “like many

people who are here legally, Mr. Jimenez was just not born in the United States.”



                                              -3-
                                              C

       One of the primary government witnesses at trial was Utah Bureau of

Investigations Agent Kenneth Colyar. Colyar recounted his interview with Jimenez

shortly after the arrest. Jimenez initially stated that he did not know about the drugs and

offered to cooperate in the investigation. In order to encourage Jimenez to admit his

involvement, Colyar told Jimenez that he had spoken to federal agents in California who

were investigating Jimenez. The interview was admitted as evidence, including the

portion in which Colyar told Jimenez he was under a federal investigation. During cross-

examination, Jimenez’s counsel attempted to impeach Colyar by pointing out that his

statements to Jimenez regarding federal agents in California were false. The government

objected, maintaining that Colyar had told the truth about his discussion with federal

authorities or that he simply stretched the truth as an interrogation tactic. The district

court allowed the questioning by defense counsel.

       Asked the question in several different ways, Colyar confirmed that he had indeed

spoken to authorities in California who were actively investigating Jimenez. Colyar

testified further on re-direct that one of the agents he had talked to, Deputy Crean, was

familiar with Jimenez’s apartment complex and had recovered chemicals associated with

methamphetamine preparation in the apartment complex’s trash.

       The judge gave a limiting admonition emphasizing that Colyar’s testimony was

not to be considered for the truth of whether law enforcement agents were investigating

Jimenez or his apartment complex. Colyar finally admitted that he was exaggerating

when he told Jimenez that he was the subject of a federal investigation. But during re-

                                             -4-
direct he also emphasized that he had discussed with Crean the possibility that Jimenez

was the source of the methamphetamine-related evidence found in his neighbor’s

garbage.

       The defense sought to question Crean regarding whether he had such a

conversation with Colyar, but the government objected to the use of such extrinsic

character evidence under Federal Rule of Evidence 608(b). Sustaining the objection, the

district court allowed only one line of questioning on the matter: defense counsel was

allowed to ask whether Crean knew of any information that would have prompted him to

investigate Jimenez. Crean replied that he did not.

                                             D

       Nathan Frisbie, Jimenez’s jail cellmate, also testified on the government’s behalf.

He testified that Jimenez had confessed to him that he had known about the secret

compartment under the transmission and was getting paid to transport the drugs. During

an earlier interview with Withers, Frisbie said that Jimenez had admitted only that he had

been arrested for possession. However, at trial, Frisbie admitted that he was lying during

the first interview. In explaining why he had lied, Frisbie testified that he was concerned

about his reputation as a “rat” and the presence of another police officer, Deputy Price.

Frisbie felt that Price might have had lingering resentment toward him because he told

Price’s superiors that Price enabled Frisbie to steal drugs from the jail’s evidence stock.

       The day after his first interview with Trooper Withers, Frisbie filed a request form

to speak with someone about Jimenez. After a second meeting, Frisbie swore that

Jimenez had admitted his knowledge of the drugs.

                                             -5-
       At trial, Jimenez moved to admit a signed statement by Frisbie regarding Frisbie’s

theft of drugs. Again, the government objected that the evidence, either the written

statement or a reading of the statement into evidence, was inadmissible under Rule

608(b). The district court sustained the objection.

                                             E

       Jimenez was convicted of possession with intent to distribute 500 grams or more

of methamphetamine. A Presentence Investigation Report (“PSR”) calculated Jimenez’s

advisory sentence range under the United States Sentencing Guidelines as 235-293

months. Based on the testimony of a drug expert presented by the government, Agent

Bryan, Jimenez argued that he was a minor participant in the conspiracy, and thus entitled

to a six level reduction in his offense level under Guidelines §§ 3B1.2 and 2D1.1. But

the district court determined he was not a minor participant because he was “valuable” to

the drug operation, and sentenced Jimenez to 180 months’ incarceration.

                                             II

       Jimenez makes five arguments on appeal. He contends: (1) the district court

clearly erred in concluding that the search of the truck did not violate the Fourth

Amendment; (2) the district court plainly erred by not declaring a mistrial after its

statements regarding Jimenez’s nationality; (3) the district court erred by excluding

impeachment evidence against Colyar; (4) the district court erred by excluding

impeachment evidence against Frisbie; and (5) the district court clearly erred by denying

Jimenez a sentence reduction as a minor participant in a conspiracy.



                                             -6-
                                            A

       Jimenez argues that Trooper Withers’ search of the truck violated Fourth

Amendment because, although Withers obtained consent to search for drugs, he

subsequently prevented Jimenez from withdrawing that consent by requiring him to stand

one hundred feet away.

       “In reviewing the denial of a motion to suppress,” we view “the evidence in the

light most favorable to the government and uphold[] the district court’s factual findings

unless clearly erroneous.” United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir.

2000). In ascertaining the scope of an individual’s consent to a search, we look to the

totality of the circumstances. United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.

1986). If someone consents to a search for a specific item, that consent extends to “those

areas or containers that might reasonably contain those items.” United States v.

Kimoana, 383 F.3d 1215, 1223 (10th Cir. 2004). A person who has consented to a search

may withdraw his consent as long as he communicates his withdrawal to the officer.

United States v. Manjarrez, 348 F.3d 881, 888 (10th Cir. 2003).

       It is undisputed that Withers asked for permission to search the truck and Jimenez

gave him permission. Prior to asking if he could search, Withers made quite clear that he

suspected Jimenez of possessing drugs somewhere in the truck. The search of the floor

of the passenger compartment and the undercarriage was within the scope of Jimenez’s

general consent. See Kimoana, 383 F.3d at 1223; see also United States v. Marquez, 337

F.3d 1203, 1206, 1209 (10th Cir. 2003) (some disassembly of a vehicle may be within the

scope of a general search). Jimenez never withdrew his consent for the search.

                                            -7-
       However, Jimenez contends that the search was nonetheless illegal because he did

not have the opportunity to withdraw his consent because he could not see what Withers

was doing or communicate with him. Jimenez relies primarily on a Ninth Circuit case,

United States v. McWeeny, 454 F.3d 1030 (9th Cir. 2006). McWeeny concluded that

general consent to search a vehicle may have been vitiated when a police officer

handcuffed a suspect and ordered him to turn away from the vehicle, rendering him

unable to observe the search. Id. at 1036. The court held that the proper inquiry was

whether “the reasonable person would believe that he or she had no authority to limit or

withdraw [the] consent.” Id.

       We need not reach the persuasiveness of McWeeny’s logic because, even in that

case, the touchstone of the inquiry was whether the suspect was coerced. Id. Jimenez

was not coerced. He was asked to stand one hundred feet away, but assured that he could

call out to the officer at any time. He was not handcuffed until after the incriminating

compartment was found. Indeed, Jimenez was on notice of the discovery of the

compartment and had opportunity to withdraw consent to the search. And Withers did

not exceed the scope of Jimenez’s consent. Therefore, the search of the vehicle did not

violate the Fourth Amendment.

                                             B

       Jimenez argues that the district court should have declared a mistrial when it

became apparent that several of the potential jurors had interpreted a statement by the




                                            -8-
judge as implying that Jimenez was in the United States illegally. Under plain error

review,2 Jimenez’s argument fails.

       We reverse on plain error review only if “there is (1) error, (2) that is plain, which

(3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d

727, 732 (10th Cir. 2005) (en banc) (quotation omitted). In determining if a defendant’s

right to an impartial jury has been violated, we look to “those persons ultimately

empaneled and sworn, not to those who are excused from service.” United States v.

Lacey, 86 F.3d 956, 969 (10th Cir. 1996). Additionally, we must presume that juries

obey curative instructions. See Zafiro v. United States, 506 U.S. 534, 540 (1993).

       Jimenez refers primarily to the statements of rejected jurors in contending that the

jury inferred that he was in the country illegally. None of the empaneled jurors’

responses to questions indicated any such inference. The judge also issued a limiting

instruction telling the jury that Jimenez’s ancestry was irrelevant. Although the

unempaneled jurors’ inference might provide some evidence that the rest of the jury drew

a similar inference, it is not “clear or obvious” that the empaneled jury was biased. See

Gonzalez-Huerta, 403 F.3d at 732.




       2
         The government argues that Jimenez waived review of this argument because
defense counsel knew it could move for a mistrial but chose not to do so. See United
States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir. 2009) (distinguishing waiver
and forfeiture). However, there is insufficient evidence for us to conclude that defense
counsel deliberately considered but rejected moving for a mistrial, so we review for plain
error. See United States v. Zubia-Torres, 550 F.3d 1202, 1204-07 (2008).
                                              -9-
                                               C

       Jimenez argues that the district court abused its discretion in two of its evidentiary

rulings. We assume without deciding that he is correct that the district court erred;

however, the cumulative effect of these errors was harmless.

       Improper exclusion of evidence is subject to harmless error analysis. United

States v. Clifton, 406 F.3d 1173, 1179 (10th Cir. 2005). We examine “the record as a

whole de novo to evaluate whether the error is harmless.” United States v. Magleby, 241

F.3d 1306, 1317 (10th Cir. 2001) (quotation omitted). Although Deputy Crean’s

testimony might have helped resolve any residual confusion remaining after Agent

Colyar’s testimony, defense counsel was able to make its point that Crean was not

investigating Jimenez prior to his arrest. Additionally, Colyar’s own admissions on

redirect confirmed that he lied to Jimenez during the interrogation. Frisbie’s statement is

simply unhelpful to the defense. Although the statement contains slightly different

details than Frisbie’s testimony, it does not contain a smoking gun and is generally

consistent with the testimony Frisbie gave.

       Crean’s testimony and Frisbie’s statement would have had little probative value as

impeachment evidence, and we are confident that the errors did not have “a substantial

influence on the outcome.” Clifton, 406 F.3d at 1179. The government presented

overwhelming evidence that Jimenez knew of the drugs in the car, including evidence

that Jimenez drove hundreds of miles out of his way en route from Santa Rosa, Frisbie’s

statement to the police, which contained details that he could not have known unless

Jimenez had told him, and the implausibility of a drug trafficker entrusting over a million

                                              -10-
dollars of drugs to someone who is unaware that he is transporting drugs. In the face of

this evidence strongly supporting the jury verdict, the exclusion of cumulative

impeachment evidence was harmless. See id. at 1180.

                                             D

       Finally, Jimenez argues that he was entitled to a six-level reduction for being a

“minor” participant in a drug conspiracy. U.S.S.G. § 3B1.2. We review the district

court’s denial of such a reduction for clear error. United States v. Virgen-Chavarin, 350

F.3d 1122, 1131 (10th Cir. 2003). Although Jimenez appears to have been no more than

a drug courier, we have held that this alone does not mandate the conclusion that he was a

minor participant. United States v. Arrendondo-Santos, 911 F.2d 424, 426 (10th Cir.

1990). The district court found that Jimenez was “valuable” to the drug operation and

duly refused to apply the reduction. Its conclusion was not clearly erroneous.

                                            III

       For the foregoing reasons, we AFFIRM. We also GRANT Jimenez’s motion to

supplement the record on appeal.


                                                   Entered for the Court


                                                   Carlos Lucero
                                                   Circuit Judge




                                            -11-
