* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 17 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, Nos. 99-4051 and 99-4106

v. (D. Utah) FRANCISCO OCHOA-ZARAGOZA,

Defendant - Appellant. (D.C. No. 97-CR-303-C)

ORDER AND JUDGMENT *

Before KELLY , ANDERSON , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34 (a)(2); 10th Cir. R. 34.1(G). This cause is therefore ordered submitted without oral argument.1 The stated purposes of the checkpoint were to inspe ct driver’s licenses,

registration certificates, and license plates; to c heck for outstanding warrants; to inquire if drivers had been drinking or were impair ed by, or in the possession of, controlled substances; and to examine vehicles for required exterior safety (continued...) -2- Francisco Ochoa-Zaragoza appeals his conviction andsentence for possession of methamphetamine with intent to distri bute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Mr. Ochoa-Zaragoza claims that the district court erred by: (1) denying his motion to suppress; (2) admitt ing testimony by a United States Deputy Marshal about a conversation with Mr. Ochoa-Zaragoza in English during transport to the courtroom; (3) limiting the Fed. R. Evid. 704(a) expert opinion testimony of a language and linguistics exp ert regarding Mr. OchoaZaragoza’s ability to comprehend English; (4) admitting blurred photographs and the seized methamphetamine evidence in violation of Fed. R. Evid. 403 because the danger of unfair prejudice substantially outwei ghed the probative value; and (5) failing to reduce his sentence pursuant to the “safety valve” provision of the United States Sentencing Guidelines § 5C1.2. For the reasons stated below, we affirm.

I. BACKGROUND On September 22, 1997, the Utah Highway Patrol stop ped Mr. Ochoa-Zaragoza at an administrative checkpoint, pur suant to a court order, 1 on1 (...continued)

devices. The court order required that motorists c ould not be detained longer than a reasonable time necessary to check these purposes , except for appropriate enforcement of violations. -3- Interstate 70 near Green River, Utah. Trooper Rich es, an eight-year law enforcement veteran, asked the driver, Mr. Ochoa-Za ragoza, in English, for his license and registration. Trooper Riches testified that Mr. Ochoa-Zaragoza said, in English, that his license had been suspended. S ee R. Vol. II at 20. While Mr. Ochoa-Zaragoza and the passenger were looking for the registration, Riches asked who owned the truck, which had California license p lates. After looking at the registration listing Jacquez Cruz as owner, Mr. Och oa-Zaragoza answered “Cruz owns the truck.” Id. at 22-23. While waiting for the registration, Ric hes noticed an empty truck bed with noticeable scratch marks on the bolts and only one duffle bag of clothing behind the front seat. When asked, Mr. Ochoa-Zaragoza said Denver was his destination. Trooper Riches testifi ed that Mr. Ochoa-Zaragoza appeared to understand his questions and answered i n English. See e.g., id. at 25. Trooper Riches also noted that both Mr. Ochoa-Zarag oza and the passenger avoided eye contact. Trooper Riches asked Mr. Ochoa-Zaragoza to pull the truck out of the line of traffic and to then step out of the truck. Ocho a-Zaragoza repeatedly changed his answer about why he was going to Denver (visiti ng his cousin, then sister,-4-

then friend). See id. at 28. The passenger said he did not know why the y were going to Denver or for how long. Mr. Ochoa-Zaragoz a told the passenger in Spanish to tell Riches that they were going to find work in Denver, not knowing that Riches, fluent in Spanish, overheard them. Wh en questioned as to whether Mr. Ochoa-Zaragoza had permission to have the truck , he said “yes.” Id. at 38. He answered “no” when asked if he was in possessionof any illegal drugs, weapons, large amounts of money, or other illegal c ontraband. Mr. OchoaZaragoza responded “yes,” when Trooper Riches askedif he could search the truck. R. Vol. III at 39. This conversation was s olely in English. Trooper Riches disputed Mr. Ochoa-Zaragoza’s testimony that he tol d Riches twice that he did not understand English. A search of the passenger compartment revealed a pa ger and roll of duct tape. Riches noticed scratch marks on the fuel acc ess door bolts and then looked at the fuel tank under the truck. He noticed appar ent alterations of the clamp and the tank with clean bolts on a dirty tank. A narco tics-sniffing dog and handler circled the truck and alerted on the area of the fu el tank. Trooper Riches asked Mr. Ochoa-Zaragoza if he could take the truck to a local garage to put it on a hoist. Mr. Ochoa-Zarag oza said “yes.” At the garage, methamphetamine was discovered in seven sealed PVC- pipe containers in the fuel-5-

tank. Mr. Ochoa-Zaragoza was cited for driving on a suspended license, and he and his passenger were placed under arrest. At the Highway Patrol station, Sergeant Christman b egan to interview Mr. Ochoa-Zaragoza. Sergeant Christman gave the Mirand awarning in English. He testified that “I got the impression that he wasn’tunderstanding me, and I had Trooper Riches give the Miranda in Spanish.” R. Vo l. III at 87. Sergeant Christman testified that Mr. Ochoa-Zaragoza waived his rights, in Spanish, and agreed to talk to the officers. See id. Trooper Riches translated Sergeant Christman’s questions and Mr. Ochoa-Zaragoza’s answ ers. Mr. Ochoa-Zaragoza, in Spanish and some English, explained that he was to leave the truck in a restaurant parking lot in Denver for another man to pick up. He acknowledged the presence of the drugs but did not know the quan tity. See id. at 88. He stated that the passenger, his nephew, did not know about the drugs. Upon referral from the district judge, the magistrate judge held a hearing to consider Mr. Ochoa-Zaragoza’s motion to suppress th e search and statement evidence. The magistrate judge rejected Mr. Ochoa- Zaragoza’s argument that his detention at the checkpoint was unreasonable and th at his lack of English ability showed that he could not have consented to the sear ch or waived his Miranda rights. The district court adopted the magistrate judge’s findings and recommendation and denied the motion.-6-

A jury found Mr. Ochoa-Zaragoza guilty on the sole count of the indictment for possession of methamphetamine with intent to di stribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Mr. Ochoa-Zaragoza received a sentence of 121 months, the low end of the applicable sentencing gu ideline range.

II. DISCUSSION A. Motion to Suppress Mr. Ochoa-Zaragoza alleges that the district court erred by denying his motion to suppress the search and statement evidenc e. He argues that because Trooper Riches did not issue a citation for driving without a license until after the search and did not return the truck’s registration, the subsequent seizure was invalid and should be suppressed. Further, he arg ues that he did not knowingly and intelligently consent to the search of the vehi cle. Finally, Mr. OchoaZaragoza alleges that his incriminating statements, made after his arrest, should be suppressed because he could not have understood his Mirandarights. “When reviewing a district court's denial of a moti on to suppress, we consider the totality of the circumstances and view the evidence in a light most favorable to the government.” United States v. Vil la-Chaparro , 115 F.3d 797, 800-01 (10th Cir. 1997). However, the ultimate det ermination of reasonableness under the Fourth Amendment is a question of law that we review de novo. See id.-7-

1. Initial Stop and Detention Mr. Ochoa-Zaragoza concedes that the initial stop at the administrative checkpoint was valid and admits that “the defendant ’s failure to present Trooper Riches with a valid license justified an extension of the detention beyond the average thirty (30) second stop at the roadblock.” Appellant’s Br. at 22. However, he argues that the stop was impermissibly extended by Trooper Riches’ questions while retaining the truck’s registration. We analyze traffic stops, which are analogous to in vestigative detentions, under the principles stated in Terry v. Ohio , 392 U.S. 1 (1968). See United States v. Shareef

, 100 F.3d 1491, 1500 (10th Cir. 1996). During a r outine traffic stop, an officer may inquire about travel plans and relat ionship with a passenger without exceeding the scope of the stop. See United States v. Hernandez , 93 F.3d 1493, 1499 (10th Cir. 1996). To detain a driver fo r further questioning not related to the initial stop, an officer must have “ an objectively reasonable articulable suspicion that illegal activity has occ urred or is occurring.” United States v. Soto , 988 F.2d 1548, 1554 (10th Cir. 1993). When an of ficer retains the driver’s license and registration, the driver is no t free to leave, see United States v. Walker , 933 F.2d 812, 817 (10th Cir. 1991); the resulting detention must be supported by reasonable suspicion.2 The district court adopted the Report and Recommend ation of the

magistrate judge and denied the motion to suppress. -8- Factors that justify reasonable suspicion to permi t additional questioning, all present here, include driving with a suspended license, lack of proof of ownership or authority to operate the vehicle, and inconsistent destination statements. See United States v. Hunnicutt , 135 F.3d 1345, 1349 (10th Cir. 1998). Our reasonable suspicion inquiry involves the totality of the circumstances. See United States v. Sokolow , 490 U.S. 1, 8 (1989). We agree with the district court 2 that the question of ownership of the truck, incon sistent statements about destination, lack of luggage, and freshly scratched, unusual bolts created reasonable suspicion to support the continu ed detention and questioning. See Report & Recommendation at 24 (Aug. 17, 1998).

2. Consent to Search Mr. Ochoa-Zaragoza argues that he did not understan d the conversation in English with Trooper Riches so he could not have kn owingly or voluntarily consented to the search. A valid consent to search must be “freely and intelligently given.” Soto , 988 F.2d at 1557. Voluntariness is a question of fact to be determined by examining the totality of circu mstances. See Ohio v. Robinette , 519 U.S. 33, 40 (1996). Trooper Riches testified that Mr. Ochoa--9-

Zaragoza conversed in English and gave knowing cons ent. The district court specifically found Trooper Riches’ testimony more c redible than Mr. OchoaZaragoza’s. See Report & Recommendation (Aug. 17, 1998) at 25. We note that “judging the credibility of the witnesses, determin ing the weight to be afforded the testimony, and drawing reasonable inferences an d conclusions from the testimony are within the province of the district c ourt.” United States v. GamaBastidas , 142 F.3d 1233, 1239-40 (10th Cir. 1998). Mr. Och oa-Zaragoza responded to Trooper Riches’ questions as expected of one who speaks English. He did not attempt to withdraw consent or object to the search and presented no evidence of coercion. We cannot conclude that the district court clearly erred when it found voluntary consent.

3. Miranda Waiver Mr. Ochoa-Zaragoza alleges that his incriminating s tatements, made after his arrest, should be suppressed because he could n ot have understood his Mirandarights. He argues that his limited education, unf amiliar surroundings, and cultural differences prevented him from underst anding his Mirandarights. Both Christman and Riches testified that Ochoa-Zara goza was notified of his Mirandarights in English and Spanish and voluntarily waiv ed those rights. The district court’s findings that Mr. Ochoa-Zaragoza w aived his Mirandarights and3 The Deputy Marshal testified that while transportin g Mr. Ochoa-Zaragoza

to the courtroom, he asked how long the trial would be. Mr. Ochoa-Zaragoza responded that he thought the trial would last abou t four days. When the Marshal asked if the jury had been picked, Mr. Ochoa-Zarago za responded “yes.” Mr. Ochoa-Zaragoza responded “in Utah,” when asked wher e he had been arrested. Mr. Ochoa-Zaragoza also responded “yes” to a questi on confirming the name of his lawyer. The entire conversation was in English . See R. Vol. IV at 77-78. -10- that his statements to Christman and Riches were kn owingly and intelligently given are not clearly erroneous.

B. Testimony by Deputy Marshal Mr. Ochoa-Zaragoza argues that the district court e rred by admitting testimony by a United States Deputy Marshal about aconversation with Mr. Ochoa-Zaragoza in English during transport to the c ourtroom. 3 He argues that the conversation was an impermissible interrogation out side the presence of counsel, violating his Mirandarights. Once a defendant has invoked his right to counsel, law enforcement officers cannot interrogate the def endant outside the presence of his attorney unless the defendant waives the right. See United States v.
Roman-Zarate , 115 F.3d 778, 782 (10th Cir. 1997) (citing Mirand a v. Arizona , 384 U.S. 436, 474 (1966)). Mr. Ochoa-Zaragoza appears to have waived his rightof appeal on this issue. See R. Vol. IV at 84 (regarding objection to Deputy Ma rshal’s testimony, “I’m going to strike my objection”); Fed. R. Evid. 103. Absent a proper4 The evidence indicates that the Deputy Marshal did not know that English

ability was an issue at the trial. -11- objection, the alleged evidentiary error is waived for appeal except for plain error. See United States v. Mendoza-Salgado , 964 F.2d 993, 1008 (10th Cir. 1992). We find no such plain error. Even if the appeal on the issue were preserved, Mr. Ochoa-Zaragoza’s Mirandarights were not violated because the conversation was not an interrogation. 4 Incriminating statements made during this type of casual conversation with law enforcement officials are notthe product of interrogation. See United States v. Criswell , 696 F.2d 636, 639 (8th Cir. 1983); United States v. Hackley , 636 F.2d 493, 499-500 (D.C. Cir. 1980). The dist rict court did not err by admitting the Marshal’s testimony.

C. Expert Opinion Testimony Dr. Steven Sternfeld, a language and linguistics expert, testified at the trial, expressing his opinion that Mr. Ochoa-Zaragoza coul d not carry on an extended English conversation. However, Mr. Ochoa-Zaragoza argues that the district court erred in failing to admit additional testimony of Dr. Sternfeld, concluding that Mr. Ochoa-Zaragoza lacked the ability to compr ehend or speak English during questioning at the checkpoint and at the Gre en River garage. We review5 The district court specifically stated that the dis puted expert testimony

“isn’t reliable because the doctor, expert that he is, was not there [at the conversations between Mr. Ochoa-Zaragoza and Troope r Riches]. And getting one side from a written [police] report and one sid e from the defendant is not reliable.” R. Vol. IV at 98; see also id. at 97. -12- the trial court's decision to admit or exclude expe rt testimony under the abuse of discretion standard. See Kumho Tire Co. v. Carmichael , 526 U.S. 137, ___, 119 S. Ct. 1167, 1176 (1999). The record reveals that the district court had concerns about the reliability of Dr. Sternfeld’s testimony, 5 since he was not present at the conversations at the checkpoint and the garage. Th e court also found that the testimony would not be helpful under Fed. R. Evid. 702 (Testimony by Experts), would be prejudicial, and that the jury could draw its own conclusions from the evidence about Mr. Ochoa-Zaragoza’s English abiliti es. Thus, given these concerns and the other admitted expert testimony, w e hold that the district court did not abuse its discretion in excluding Dr. Stern feld’s specific testimony that Mr. Ochoa-Zaragoza could not comprehend the convers ations with Trooper Riches at the checkpoint and the Green River garage

.

D. Photographs and Methamphetamine Evidence Mr. Ochoa-Zaragoza argues that the district court e rred in admitting blurred photographs of the scratched screws on the truck, p hotographs of the canisters found in the fuel tank, and the actual seized canis ters and methamphetamine. He-13-

claims that admission of this evidence violates Fed . R. Evid. 403 because the danger of unfair prejudice substantially outweighed the probative value. Admission of evidence under Rule 403 is reviewed on ly for an abuse of discretion. See United States v. Wacker , 72 F.3d 1453, 1469 (10th Cir. 1996). We find no abuse of discretion.

E. Sentencing Safety Valve Provision Mr. Ochoa-Zaragoza argues that the district court abused its discretion by denying a reduced sentence pursuant to the “safety valve provisions,” U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f)(1)-(5). Section 35 53(f) serves “as a ‘safety valve’ to permit courts to sentence less culpable d efendants to sentences under the guidelines, instead of imposing mandatory minimum s entences,” United States v. Acosta-Olivas , 71 F.3d 375, 378 (10th Cir. 1995), and provides t hat the district court shall impose a sentence pursuant to the sente ncing guidelines, without regard to the statutory minimum, if the defendant m eets the section’s criteria. See 18 U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2 (adopting verbatim the language of section 3553(f)). The district court’s conclusi on that the defendant “is not eligible for relief under § 3553(f) is reviewed forclear error.” Roman-Zarate , 115 F.3d at 784.6 Mr. Ochoa-Zaragoza appears to also argue, as he did at the sentencing

hearing, that his offense level should have been re duced for aberrant conduct, see U.S.S.G. ch. 1, pt. A, intro. 4(d), or for being a minimal participant, see U.S.S.G. § 3B1.2(a). The district court’s findings refusing these sentencing reductions are supported by the record and are not clearly erroneo us.

7 “The defendant has truthfully provided to the Gover nment all information and evidence the defendant has concerning the offen se or offenses that were part of the same course of conduct or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5). -14- As the government noted, even if he qualified, the safety valve provision would not reduce Mr. Ochoa-Zaragoza’s sentence. Wh ile the provision would prevent the application of the statutory minimum of ten years, see 21 U.S.C. § 841(b)(1)(A)(viii), the sentencing guidelines wou ld still apply. Since Mr. Ochoa-Zaragoza’s sentence range under the guideline s (based on his offense level of 32) was 121 to 151 months, which is greater thanten years, the safety valve provides no benefit. The district court determined that even if Mr. Ocho a-Zaragoza’s sentence range were lower, 6 he did not qualify for the safety valve reduction because the court specifically found him to be untruthful and t hus not qualified under 18 U.S.C. § 3553(f)(5). 7The district court’s findings are supported by th e record and are not clearly erroneous. See Anderson v. City of Bessemer City , 470 U.S. 564, 573-74 (1985).-15- III. CONCLUSION For the reasons stated above, the conviction and se ntence are AFFIRMED.

ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge