                                        No. 96-3515


United States of America,                   *
                                            *
     Plaintiff - Appellee,                  *
                                            *
     v.                                     *   Appeal from the United States
                                            *   District Court for the
Robert Chatman,                             *   District of Nebraska
                                            *
     Defendant - Appellant.                 *



                            Submitted: March 11, 1997

                                  Filed: July 17, 1997


Before McMILLIAN, Circuit Judge, HANSEN, Circuit Judge, and
MAGNUSON,* District Judge.


MAGNUSON, District Judge.


     On May 14, 1996, Appellant Robert Chatman ("Chatman") pleaded guilty
to possession with intent to distribute 500 grams or more of a mixture or
substance containing cocaine, a violation of Title 21, United States Code,
Section 841(a)(1).       The district court2 sentenced Chatman to 120 months of
imprisonment,     four    years    of   supervised    release,   and   a   $50   special
assessment.     In this appeal, Chatman challenges the decision of the
district court to limit Chatman’s cross-examination of his arresting
officer during a hearing on his motion to suppress his traffic stop and the




     * The HONORABLE PAUL A. MAGNUSON, Chief Judge, United States
District Court for the District of Minnesota, sitting by
designation.
     2
      The HONORABLE LYLE E. STROM, United States District Judge
for the District of Nebraska, adopting the Report and
Recommendation of the HONORABLE Kathleen A. Jaudzemis, United
States Magistrate Judge for the District of Nebraska.
subsequent search of his vehicle.         Chatman contends he should have been
allowed to question the officer as to his veracity and bias.          In addition,
Chatman appeals two decisions of the district court during sentencing.
Chatman challenges the district court’s denial of a one-level reduction for
acceptance of responsibility and the district court’s denial of a two-level
reduction for a minor role in the offense.        We affirm.


                                          I


      A federal grand jury returned an indictment against Appellant Robert
Chatman ("Chatman") on April 20, 1995, charging Chatman and three co-
defendants with      possession with intent to distribute 500 grams or more of
a mixture or substance containing cocaine in violation of 21 U.S.C. §
841(a)(1).     At his arraignment, Chatman entered a plea of not guilty.


      Chatman filed a motion to suppress the traffic stop of his vehicle
and the subsequent search of that vehicle.      United States Magistrate Judge
Kathleen A. Jaudzemis heard argument on the motion to suppress during July,
August, and November and issued a Report and Recommendation on January 23,
1996, recommending that Chatman’s motion be denied.


      The Magistrate Judge made findings of fact with respect to the stop
and   search    of     Chatman’s   vehicle.    According   to   the   Report   and
Recommendation, Nebraska State Patrol Trooper Andy Allen observed two
vehicles heading east on Interstate Highway 80 between Aurora and Kearney
on April 16, 1995.        Allen observed a white Chrysler, followed by a blue
Cadillac.      Believing both vehicles to be speeding, Allen activated his
radar antenna.       Allen testified that the radar screen indicated that both
vehicles were traveling at 75 miles per hour, ten miles over the 65 miles
per hour speed limit.      The radar device does not produce any kind of record
of speed




                                          2
checks.


     Allen observed the race and gender of the driver of each vehicle,
then turned his squad car around at the next highway median.       The white
Chrysler was driven by a white male and the blue Cadillac was driven by a
black male.    Allen testified that he observed the Cadillac’s brake lights
activated, and noted that the Cadillac’s speed reduced to approximately 40
miles per hour.      Allen passed the Cadillac, pausing beside the car to
confirm the appearance of the driver.     Allen then sped ahead and caught up
to the white Chrysler.     Allen followed the Chrysler until it pulled over
to the side of the highway.   Allen then exited his vehicle and flagged the
Cadillac over to the side of the road.


     After retrieving the license and registration materials from the
driver of the Chrysler, Allen approached the blue Cadillac which was being
driven by Appellant Chatman.     Upon approaching the vehicle, Allen asked
Chatman for his license and vehicle registration.    Allen also asked Chatman
where he was heading, a question he asks every person that he stops.
According to Allen, Chatman said that he was traveling to Chicago for a
wake for Waldo Jackson.


     Allen stated that he noticed a female sitting in the passenger side
of the vehicle, but did not see any other passengers.          The rear side
windows and rear window of the Cadillac were darkly tinted.       Allen said
that when he leaned to the window to talk with Chatman, he smelled the
aroma of alcohol.


     Allen returned to his vehicle to check the validity of the drivers’
licenses.     Allen made out a warning and a citation for the driver of the
white Chrysler and a warning ticket for speeding for Chatman.       Nebraska
State Troopers are not required to keep copies of warning tickets and Allen
did not retain copies of the tickets




                                      3
that he issued.      In addition, the incident was not videotaped.      Allen
testified that the videotape camera normally in his vehicle was being
repaired at the time of the stop.    After making out the tickets, Allen gave
one to the driver of the white Chrysler and let the driver depart.


        Allen then returned to Chatman’s vehicle.     According to Allen, he
asked Chatman whether the woman seated next to him was his wife.      Chatman
responded that it was his girlfriend.      Allen once again noticed the smell
of alcohol, although he did not seek any contraband.


        Allen then noticed for the first time the presence of two men in the
back seat of the vehicle.    Allen testified that he became suspicious of the
group for several reasons.      Allen stated that it was quite unusual for
people who are stopped to remain perfectly still and silent and that such
behavior often indicates that inappropriate or illegal activity has
occurred.     In addition, Allen stated that it seemed odd that the group
would be traveling from San Diego to Chicago for a wake on Easter Sunday
dressed in casual clothes.    Allen testified that Chatman gave his consent
for Allen to search the trunk.    Allen observed loose clothing strewn about
the truck as well as papers, wiper fluid, and jumper cables.     Allen did not
observe any luggage, despite Chatman’s earlier statement to Allen that the
group did have luggage.      During the search, all the passengers remained
within the vehicle.       Allen stated that during his six years in law
enforcement, this was the first time that the passengers had not exited the
vehicle to watch.


        Allen used his shoulder microphone to call for a back-up.   Allen then
walked back to the driver’s side window and asked Chatman where the luggage
was located.    Chatman said that he did not have any luggage.   Allen did not
observe any luggage in the vehicle, only a pager, cellular phone, and a
comb.    Allen returned




                                       4
to the trunk and observed a lump in the floor of the trunk.     Allen lifted
the carpet on the bottom of the trunk, and saw that the wing-nut holding
down the spare tire had been removed, creating a lump.      Allen testified
that he observed a brown paper bag underneath the spare tire.   Allen lifted
the spare tire and found a Ohaus electronic scale inside the paper bag.
Allen then radioed for a drug dog to be brought to the scene.


        Allen testified that he asked Chatman to step from the car and asked
him to sit in the squad car.    In the squad car, Allen asked Chatman about
the scale.    According to Allen, Chatman denied any knowledge of the scale.
Allen stated that he smelled alcohol on Chatman and gave him a preliminary
breath-test which did not show an illegal amount of alcohol.


        Allen left Chatman in the police vehicle, returning to the Cadillac.
Allen asked the names of the individuals in the car and requested their
identification.     Linda Brooks was seated in the front seat and did not
possess any identification.    Rodney Bruce Green was seated in the back and
provided a California identification, while Ernest James Thomas, the other
backseat passenger, provided an old military identification.


        Allen also asked the passengers about their destination.   All three
said that they were going to a wake for Waldo, but none knew whether Waldo
was old or young, or how he had died.      The passengers also referred to
Waldo    as "Waldo Johnson" even though Chatman had called him "Waldo
Jackson."    Shortly thereafter, Allen’s back-up, Trooper Rife, arrived with
a drug dog.    Allen related his suspicions to Rife.


        Rife and Allen conducted a preliminary search of the trunk of the
vehicle. Allen testified that such searches are usually done before a
canine sniff to ensure that the dog is not injured by any




                                      5
dangerous objects or that the dog would not damage any valuables.              Allen
and Rife pulled up the carpet on the bottom of the trunk and discovered
four vacuum sealed packages.       According to Allen, the packages had been
sliced open and were leaking white powder.         The troopers also discovered
an additional package containing a leafy substance they believed to be
marijuana.      The   troopers   placed   the   three   males   under    arrest   and
transported all four individuals to Grand Island, Nebraska.             The Cadillac
was towed to Grand Island.


     On March 22, 1996, the district court adopted the findings of fact
of the magistrate judge, finding that the stop and search of the vehicle
were appropriate and reasonable.          The district court denied Chatman’s
motion to suppress.    On May 8, 1996, Chatman’s counsel requested that the
district court re-open the record in order to allow further investigation
into the potential bias of the officer who stopped and searched Chatman’s
vehicle.     Chatman sought information on Allen’s past history of traffic
stops, including past citations and warnings, Allen’s log books, tapes of
conversations with dispatchers regarding Chatman’s arrest, and training and
training manuals received by Allen on drug couriers and searches.                 The
district court granted Chatman leave to file a motion to re-open the
record.    Chatman came once again before the district court on May 14, 1996.
At that time, the district court denied Chatman’s motion to reopen the
record.    Chatman pled guilty to Count I of the indictment, charging him
with possession with intent to distribute 500 grams or more of a mixture
containing cocaine, a violation of 21 U.S.C. § 841(a)(1).         Chatman reserved
his right to appeal the district court’s denial of his motion to suppress.
The district court accepted Chatman’s plea and ordered the Probation Office
to prepare a Presentence Report.


     At sentencing, Chatman objected to two elements of the Presentence
Report.     Chatman objected to the Probation Office’s failure to grant
Chatman a two-level reduction for being a minor




                                          6
participant in the crime.         Chatman also claimed that he was entitled to a
one-level reduction for timely informing the government of his intent to
plead.      The district court denied both of Chatman’s objections and
sentenced him to 120 months imprisonment, four years supervised release,
and a $50 special assessment.           Chatman appeals both the denial of his
motion to suppress and the denial of his objections to the presentence
report.


                                            II


        Chatman first claims that the district court erred by limiting his
cross examination of Trooper Allen during the motion to suppress hearing,
preventing Chatman from inquiring into Allen’s veracity or possible bias.
During the motion to suppress, Chatman sought to inquire as to Allen’s past
traffic stops, his mind-set during the stop of Chatman, and the purposes
and     practices   of     the   Nebraska   State   Patrol   in   dealing   with     drug
trafficking.        The Magistrate Judge sustained all of the government’s
objections    to    such    questioning,    preventing   Chatman    from    making    any
substantive inquiry.         In addition, the district court denied Chatman’s
request to re-open discovery into areas relating to Allen’s veracity or
bias.


        In reviewing a district court’s decision whether a traffic stop was
pretextual, we apply a "clearly erroneous" standard.                United States v.
Pereira-Munoz, 59 F.3d 788, 791 (8th Cir. 1995) (citing United States v.
Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (en banc), cert. denied, 115
S. Ct. 1970 (1995)).        While a pretextual traffic stop is constitutionally
impermissible, see United States v. Eldridge, 984 F.2d 943, 947 (8th Cir.
1993), "[i]t is well established . . . that any traffic violation, no
matter how minor, provides a police officer with probable cause to stop the
driver of the vehicle."          Pereira-Munoz, 59 F.3d at 791 (citations




                                            7
omitted).   In deciding whether a stop was pretextual or based on probable
cause, the district court applies an "objectively reasonable" standard.
Id. (citing United States v. Miller, 20 F.3d 926, 929 (8th Cir.), cert.
denied, 115 S. Ct. 226 (1994)). "Under this objective test, so long as
police   have probable cause to believe that a traffic violation has
occurred, the stop is valid even if the police would have ignored the
traffic violation but for their suspicion that greater crimes are afoot."
United States v. Thomas, 93 F.3d 479, 485 (8th Cir. 1996).      The Supreme
Court has made it clear that the subjective motivations of an officer in
making a traffic stop are irrelevant to the determination of whether that
stop was appropriate.    See Whren v. United States, 116 S. Ct. 1769 (1996).



     In this case, the district court, through the adoption of the Report
and Recommendation of the Magistrate Judge, made a determination as to the
existence of probable cause for the stop of Chatman’s vehicle.    While the
evidence of speeding was contested by Chatman, the district court found the
testimony of Trooper Allen more believable than that of Chatman or his
passengers.    In addition, the district court credited the testimony of a
technician who substantiated Allen’s statements about repairs to the video
camera and helped account for the absence of video camera from the
automobile.      The district court also found corroboration for Allen’s
version of the events in the incident report, which was consistent with
Allen’s testimony concerning his stop of both Chatman and the white
Chrysler.     While the district court was free to draw negative inferences
from the absence of a videotape of the incident or copies of traffic
citations, it was not required to make such findings.


     Chatman also argues that the district court’s factual findings are
clearly erroneous because the traffic stop logically could not have
occurred in the way in which Allen described, given the speeds




                                      8
the automobiles were traveling and the amount of time that elapsed from the
time Allen passed Chatman’s vehicle until Allen flagged down Chatman’s car.
However, a logical inconsistency only exists if Chatman’s version of the
facts is adopted.    While Chatman claims he was following the white Chrysler
with his cruise control set at fifty-five miles per hour, Allen testified
that Chatman’s speed slowed to forty miles per hour once Allen started to
follow him.    In addition, Chatman speculates about the amount of time Allen
would have spent sitting in his squad car behind the white Chrysler before
exiting the squad car and the speed with which he would have approached the
stopped Chrysler.      This sort of evidence is the province of cross-
examination and the subject of a credibility determination by the district
court.   Based on the record, we cannot say that the district court abused
its discretion in adopting the facts as articulated by Allen.    See U.S. v.
Caldwell, 97 F.3d 1063, 1067 (8th Cir. 1996) (stating that court should
review findings of historical fact for clear error).


     Chatman contends that he should have been allowed to cross-examine
Allen about his past traffic stops, his training, and his approach to drug
interdiction.     Chatman argues that such an inquiry would not address
whether the stop was pretextual, but Allen’s possible motive or bias for
stating that Chatman had exceeded the speed limit.         In support of his
claims, Chatman cites United States v. Barnes, 798 F.2d 283 (8th Cir.
1986).   In Barnes, the district court prohibited a defendant from cross-
examining a witness regarding earlier statements that contradicted the
witness’s trial testimony.      Id.   We held that such a limitation violated
the defendant’s right to confrontation under the Fourth Amendment.       id.
While the district court had already made a credibility determination
regarding the witness’s statements as part of the defendant’s motion to
dismiss, we found that "the same evidence would also have been important
to the jury’s determination of whether [the witness] was a credible
witness."     See id. at 289.   As




                                        9
such, the defendant should have been allowed to present such evidence to
the jury.     Id.


     In this case, there is no evidence suggesting that Allen had made
contradictory statements or that his testimony was somehow untrustworthy.
Chatman had an opportunity to cross-examine Allen about this particular
stop and Allen’s version of the facts.          While Chatman takes exception to
Allen’s version, there is no inconsistent prior statement or omission on
Allen’s part that suggests the traffic stop was anything other than
legitimate.     In addition, Chatman was allowed to inquire into one of
Allen’s prior traffic stops which Chatman suggested was pretextual.
Chatman asked Allen about a prior case heard in the State District Court
of Hamilton County, Nebraska, in which evidence obtained by Allen was
suppressed.     The state court suppressed the evidence based on Allen’s
detention of a suspect for too long with out a reasonable suspicion that
the defendant was about to engage in criminal activity.          The district court
in this case did not find the evidence of the prior trial compelling,
stating that the state court explicitly found that Allen’s reasons for the
stop were not pretextual.      The district court in this case did not find
Chatman’s     allegations   compelling    and    appropriately     limited   cross-
examination.


     No evidence suggested that Allen’s asserted reasons for the stop were
pretextual.    The district court was within its power in limiting Chatman’s
cross-examination of Trooper Allen and in denying Chatman’s motion to
expand the record.


                                     III


     The Sentencing Guidelines provide for a two-level reduction in
offense category if a defendant can demonstrate that he was a "minor
participant" in the offense.       U.S.S.G. § 3B1.2(b).          According to the
Application Notes, a "minor participant" is "any




                                         10
participant who is less culpable than most other participants, but whose
role could not be described as minimal."   U.S.S.B. § 3B1.2, comment (n.3).
The burden is on the defendant to demonstrate that he is entitled to the
reduction. United States v. Dinges, 917 F.2d 1133, 1135 (8th Cir. 1990).
Chatman contends that he was merely a "mule" in a drug distribution scheme
and that he is entitled to the reduction.       A district court’s factual
determination regarding the role played by a defendant in a criminal
activity is reviewed under the "clearly erroneous" standard.     See United
States v. Fregoso, 60 F.3d 1314, 1329 (8th Cir. 1995) (citations omitted);
United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir. 1989).


     Chatman argues that he was a "minor participant" compared to the
suppliers of the drugs.   Chatman contends that he is being unfairly denied
a reduction based on the fact that the suppliers have not been identified.
We have previously rejected such arguments.   In United States v. Thompson,
60 F.3d 514, 517 (8th Cir. 1995), the defendant argued that his role "was
relatively minor compared to his drug suppliers."   We stated that the fact
that other parties supplied the drugs did not render the defendant's role
minor.
           Taken to its logical conclusion, Thompson’s
           position would mean that every participant in every
           drug distribution scheme would be presumably
           entitled to a minor participant reduction so long
           as he or she were able to prove the existence of an
           up-stream drug supplier. We reject this logic and
           conclude that Thompson did not meet his burden of
           proving   his   entitlement   to  this   reduction.
           "Participants in the distribution of drugs often
           have distinct and independently significant roles.
           Those distinguishing factors will not always be
           relevant in determining sentences."
Id. (quoting Ellis, 890 F.2d at 1141).


     In this case, the district court found that Chatman was not a "minor
participant" in the illegal narcotics activity.     The




                                     11
district court based its decision on several factors including the fact
that Chatman was using his own vehicle.           In addition, the district court
found that the amount of narcotics found in the vehicle indicated that the
drugs were intended for distribution.          The lack of luggage or clothing for
the   trip   suggested   to    the   district    court   that   Chatman   intended   to
underwrite the expenses of the entire trip.         We find no clear error in the
findings of the district court.


                                          IV


      Sentencing Guideline section § 3E1.1 provides a two-level reduction
in offense level for "acceptance of responsibility."              An additional one-
level reduction is available where the defendant’s offense level is greater
than sixteen and the defendant
             timely notif[ies] authorities of his intention to
             enter a plea of guilty, thereby permitting the
             government to avoid preparing for trial and
             permitting the court to allocate its resources
             efficiently.
U.S.S.G. § 3E1.1(b)(2).        While the district court granted Chatman a two-
level reduction for acceptance of responsibility under section 3E1.1(a),
the court denied Chatman’s request for an additional one-level decrease
under § 3E1.1(b)(2).          Chatman appeals that denial, arguing that he is
entitled to the addition reduction because he provided sufficient notice
of his intention to plead guilty.               The district court’s denial of a
reduction for acceptance of responsibility is reviewed for clear error.
See United States v. McQuay, 7 F.3d 800, 801 (8th Cir. 1993).


      Both parties agree that Chatman stated on several occasions prior to
trial that he intended to plead guilty.          However, Chatman did not actually
sign a plea agreement until the day of trial.              While Chatman’s counsel
indicated his willingness to plead guilty, the delay in actually executing
a plea agreement forced the government to prepare for trial.                In United
States v. Thomas, 60




                                          12
F.3d at 516-17, we affirmed the district court’s denial of a reduction for
acceptance of responsibility where the defendant failed to enter a plea
until the day of trial.       The defendant in Thomas had notified the
government of his intention to plead on the Friday before the trial was to
begin, but did not execute the plea until the day of trial.   Id.   We found
that such notification did not qualify for a reduction because "[b]y then,
the Government had essentially already completed its preparations for
trial."   Id. at 517; accord United States v. McQuay, 7 F.3d at 800 (denying
reduction for defendant who did not file plea agreement until first day of
second trial, despite fact that government did not need to conduct further
trial preparation); United States v. Nomeland, 7 F.3d 744 (8th Cir. 1993)
(denying reduction for defendant who did not plead until immediately before
trial date).


     While Chatman indicated his intention to plead earlier in the process
than did the defendant in Thomas, plea negotiations between Chatman and the
government continued during the period up until the day of trial.    If plea
negotiations broke down, the government would have been forced to put on
its case.   In such an instance, "the government had essentially already
completed its preparations for trial."    Thomas, 60 F.3d at 517.   We cannot
say that the district court committed clear error by denying the additional
reduction for acceptance of responsibility.


     The judgment of the district court is affirmed.


     A true copy.


            Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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