## United S tates Cou rt of Appe als FOR THE EIGH TH C IRC UIT

___________ No. 03-17 07

___________ United Stat es of America, * * Appellee, * *
v. * * Mario Morren o, * * Appellant

. *

___________ Appeals from the United States No. 03-19 53 District Court for the

___________ District of Nebraska.
United Stat es of America, * * Appellee, * *
v. * * Francisco Beltran-Hernandez, * also known a s El Gor

do, *

* Appellant

. *

___________ Submi tted: Febr

uary 1 2, 2004 Filed: June

28, 2004

___________1 The Honorable Joseph F. Bataillon, United States Distri ct Jud ge for the

District of Nebraska.

2 Fifteen -yea

r-old Mar ie Smith testifi ed that on O ctober 12, 2001, she lived at 3130 Chicago S treet, Apartm ent No. 4 , with he r boyf

riend and h er sister , Am anda Smith.

3 Apartm ent No.7 is located

across f rom A partm ent No. 4 on the sam e floor of the apart ment b uilding.
-2- Before B YE, H EANEY, and S MITH, Circuit J udges.

___________ SMITH, Circuit Judge.
Mario Morreno and Francisco Beltran-Hernandez contend that the district court 1 erred in

denyin g their m

otions to suppress. Beltran- Hernande z also argues that there was insuf

ficient evidenceto support the

jury 's verdic t and

that the court erred in den yin g h im "s afe ty v alv e" r eli ef. We af fir m.

I. On October 12, 2001, Omaha P olice Officers Mark Lang, Daniel Clark, Bria n Heath, Mark Desler, and other o fficer s inthe Drug Interdiction Unit executed a search

warran t at 3130 Chic ago Stree t, Apar tment No. 4, in Omaha, N ebraska, in search of illegal drugs. During the search, Officer Clar k es co rted Mar

ie Smith, 2 one of the occupants of Apar

tment N o. 4, into the hal lway . Whil e in the hal lway , Smith told Officer Clark tha t some of the metham

phetamine found in the apartment belonged to the occupants of A partm ent No. 7. Smit h stated tha

t "El Gor do," the ow

ner of Apartm ent No. 7 , som etime s stored his drugs inside Apa rtment No. 4. This wa s the first inf orma tion the off

icers had receive d about Apa

rtment No. 7. 3

According to Offic er Clar k, during t

his convers ati on, he h eard foot steps proceedin g up the apar

tment 's stairw ell towar

ds th em. Officer Clark concealed-3-

himse lf in the upper stairwell. Officer Clark observed a m an–later identified as Morreno–approach Apartment No. 7. Officer Clark greeted Morre no in English

. Officer Clark asked Morreno, "How are you doing?" Morre no tur ned around, saw Officer Clark, and responded in English that he was "okay." In response to Officer Cl ark's questions, Morreno, in English, provided his name and stated that he ha d

come to the apartment building to visit his cousin who res ided in Apa rtment No.7. Morreno appeare d to understa ndClark's questions and ma intained e ye con

tact durin g the questi oning. During the conversation, Morreno reached (approximately three times) with his right han d to his ri ght-fron t pants' p ocket.
Duringthis initial

encounter , Offi cer La

ng entere d the hallw ay. Office r Lang observed M orreno sta

nding next to A

partm ent No. 7 . Morre no held a se t of keys in his hand and w as carr

ying a b ackpack. Offic er Cl ark advise d Offic er Lang of the situation. Officer Lan g inq uired whe ther Morr eno lived in Apartm

ent No. 7 , and Morreno responded t

hat he wa s there to visit

a friend. The officers told Morreno that they were conducting an investigat ion possibly involving Apartment No.7 and that they were tr ying to d eterm

ine if he r

esided i n that apar

tment . Offi cer La

ng also observed Morreno r

each into h is right-f

ront pants' pocke t. Of

ficer Clark advised Morreno to keep his h and out o f his pant s' pocket.

Becauseof Morreno's attempts to reac h into his pocket, Officer Lang conducted a pat-down search f or officer safety . Offi cer La ng asked Mor

reno if he could take his backpack and place it on the fl oor

while he conducted t

he pat-dow

n, and Morren o respond ed by slidin g the back pack off of h is shoul der.

Officer Clark re quested per

missio n to se a rch Morreno's bac kpack. Mo rreno consented. Officer Clark

did not immediately

open the backpack, but instead asked Officer Heath , who was fluent in Spanish, to ask Morreno for permission to search in Spanish. Officer Heath exp laine d (in Spanish) to Morreno that the officers were conducting

a narcotics investigation and, as part of that inves tigatio n, the officers-4-

would liketo search Morreno's person and backpack. Officer Lang test

ified that he heard Moren o respond , " Si " to Officer Heat h's reques t to search

.
Officer Clark sea rched thebackpack a fter Of ficer H eath

told him that Morreno had consented. Officer Clark found packages of met hamphe tamin e wrappe d in a yellow-colored

cel lo phane. Morreno uttered an expletive, but made no other statem ents. Officer

Clark re moved the me thamp hetamine from the backpa ck and told Officer Lang to arrest and handcuff Morreno. Clark continued to search through the backpack and found numerous bundles of me thamp hetamine, a sm all semi -autom atic pistol, an d over $4,0 00.

Officer Pam ela Hei dzig inter

viewed S mith w

hile at Apar

tment No. 4. Heidzig testifiedthat Smit

h stated tha

t her boy friend, who lived in Apartm ent No. 4 , and the occupants of Apartment No. 7 used the same drug supplier. According to Smit h, she had made drug deliv eries for "El Go rdo," who lived in Ap artm ent No. 7 . Smith also testif iedthat Morreno lived w ith "El G ordo" and supplied narc otics for b o t h apartments.

After Morreno's arrest, Officers Heath, Des ler , an d Ku la a pp roa che d Ap art me n t No. 7. Heath testified that he knocked on the door, and Beltran- Hernande z opened it

. The officer s were in plain clot h es with the ir badges d isplay ed and their guns holstered. In Spanish, Officer Heath explained to Beltran-Hernandez that they were involved in a

narcotic s investigat

ion, and requested to enter the apartment and speak with Beltran- Hernande z. Off

icer He ath test ified that Beltran-Hernandez consented and opened the door completely allowing all of the officer s to enter. According to the officers, Belt ran-Hernand ez appeared awa ke, sober, an d unafraid

.
The officer s entered

the living r

oom and saw th

ree adult s and two sm

all children. Officer

Heath explained to everyone in Spanish why the off icers were there. He told the residents that the officers had been c onducting a n arcotics investigation4 Officer Heath gave the consent to search form signed by Beltran-Hernandez to Officer Lang afte r the officers left Ap artm ent No. 7. However, the police department has been unab le to locat e the form.
-5- across the hall and had obtained information that suggested that their apartment was also being used f

or narcotics distribution. He said that the officers wanted to search the apartment for dr

ugs. Off icer He ath asked w

ho paid the r

ent for the apartment, and Beltran-Hern andez respo nded that he paid th e rent.

Officer Heath asked Beltran -Herna ndez for p ermi ssion to sea rch the ap artm ent. He advised Be ltran-H ernandez that he had

a right to say "no." According to Officer Heath, Beltran- Hernande z consente d to a search. Officer Heath obt ained an O maha Police Departm

ent con sent-to-s earch fo rm a nd filled ou

t the Spani sh version, explaining

the form to Bel tran-He rnandez. Officer Heath told Beltran-H ernandez that if he still w anted to give the officers permission to search his apartm

ent, he c ould do

so by signing the form. O fficer Heath testified that Beltran-Hernandez then signed the for m. Officers Desler

and Kula began a search of the apa

rtment. The officer s found guns in the bedr

oom an d a photogra

ph of Morreno be tween the matt ress and box springs. A scaleand $10,000 were f ou nd in t he freezer. However, no drugs were uncovered in Apartment No. 7.

After being readhis Miranda rights, Beltran-Hernandeztold the officers that he did not kn ow why t

he mon ey and

scale w ere in the

freezer but suggest ed that it

was possibl e that the ch ildren had put them in th ere. He stated that he hadearned th e money from his work at a hotel. O fficer Heath acknowledged during the search that it was not u ncommon for illegal immigrants to deal o nly in cash.

Officer Heath be lieved he h ad no reas onable suspi cion to detain Beltran-Hernandez after

the interv iew, and the off icers le ft without

makin g an arre st in Apartm

ent No. 7

. 4 Later, based

on the statements of Morreno and Sm ith, officers5 The Hono rable Ka thleen A. Jaudzem

is, Unite d States M agistrate Ju dge fo r the Distric t of Nebraska

. -6- arrested Beltran- Hernande z for

conspirac y to dist

ribute and possession w ith intent to distributemetham

phetamine. A federa

l grand jury indicted Morreno and Beltra n Hernandez on one count of conspiracy to distribute and posse ssion with intent to di st rib ut e 50 0 g rams or mo re of metham phetam ine, in vio lation of 21 U.S. C. § 846 and subject to forfe iture, in violation of 21 U.S .C. § 853 . Morre no was als o charged with possession of

a firea rm dur ing a drug-trafficking crime, in violation of 18 U.S.C. § 924(c), and possessi on with intent to distrib ute 500 grams or more of methamphetamine in vio lation o f 21 U.S.C. §§ 84 1(a)(1) and (b)(1).

On May 29, 2002, t

he distric t court, adopting thereport a ndrecom menda tion of the m agistrate

judg e, 5 denied Morreno's motion to suppress. The court denied Beltran-Hernandez's motion to suppress on Septem

ber 4, 2002 . Morre no entere d a conditiona l plea of gui lty–subject t o his app eal of his motio n to supp ress–and wa s sentencedto 180 m onths' im prisonm ent. A j ury f

ound Belt r an-Her nandez guilty of

one count of conspir acy. The distr ict court, on March 1 9, 2003, sentenced Be ltranHernande z to 188 months' im prisonm ent on the c onspiracy count.

II. A. Motion to Sup

press - Mo rreno We review the distric t court's factual findi ng o f consent for clear error. However, we review a denial of a motio n to supp ress de nov o. United States v. Zamoran-Coronel , 231 F.3d 466 , 468 (8th Cir. 2000). Mor reno argu es that the

drugs found in his backpack should be suppr essed bec ause he did not consent to the search of the backpa ck. Morr

eno also con

tends that t

he inform atio n k nown to the officers atthe tim e of the st op was insuf ficient t o conduct a pat-down s earch of his person a

nd that the en counter wen t beyond the s cope of a val id inves tigatory sto p.6 The following chara cteristics of persons giving consent are relevant when assessing the voluntariness of t heir co nsent: (1) their age; (2) their general intelligence and education; and (4) whether they consented after being informed of their right to withhold consent. In examining the environment in which consent was given, courts should ask whether the person who consented: (1) was detain ed and questi one dfor a long or short time; (2) was threatened, physically intimidated, or punished by the police; (3) relied upon promises or misrepresentations made by the police; (4) was in custody or under arrest when the consent was given; (5) was in a public or a secluded place ; or (6) eithe r objected to the search or stood by silently while the search occurred. United Stat es v. Cha idez , 906 F.2d 377, 381 (8th Cir. 1990).
-7- If Morreno voluntarily consented, the police had authority to search Morreno's backpack even in the absence of probable cause or a search warrant. United States v. Barahona , 990 F.2d 412, 417 (8th Cir. 1993) (citing Schneckloth v. Bustamonte , 412 U.S. 218, 227–28 (1973)). The government bears the burden of proving avoluntary consent to search by a preponderance of the evidence. Id.

Morreno's consent was voluntary if it was the product of an essentially free and unconstrained choice, rather than the product of duress o r coercion, express or implied. Bustamonte , 412 U.S. at 225 , 227. The voluntariness of a consent is a question of fact to be determined from the totality of the circumstances surrounding both the environment of the encounter and the nature of the consenting party. Id. at 226–27. We consider a variety of factors 6 in determining voluntariness, but we do not apply those factors mechanically. Zamoran-Coronel , 231 F.3dat 469. "The inquiry turns on the totality of the circumstances, which must demonstrate that the police reasonably believed the search to be consensual." Id. Afte r careful r eview of the record, we conclude that the district court's fin ding of voluntariness is not clearly

erroneous.
Here, the magistrate judge, whose findings were adopted by the district court, found th at Morreno voluntarily consented to the search of his backpack. Wh en-8-

Morreno approache d Apartment No. 7 , Officer Clark con

versed w ith Morre no in English. At no point d

uring the co nversation

did Morre no indicate

that he did n ot understand

. Then, after be ing questione d only br iefly , Morre no gave oral consent to the officers to search his backpack. Moreover, before the offi cers cond ucted the search, Officer Heath asked Morr eno in Spani sh if the of ficers c ould searc h the backpack. Again, M orreno ag reed to the

search.

Morreno's actions dur

ing the search su

pport the conclusion t

hat he volunt arily consented. Morreno placed the backpack o n the ground f or the officers to examine. Morreno was cooperative an d did not atte mpt to f lee. The dis trict court found that Morreno wa s not threa

tened, phy sically

intim idated, o r punished be fore he c onse nted

. In this case, Mo rreno's word s, gesture s, and conduct support the district court's findings that this c onsent was the produc t of an essentially free and unconstrained choice by Mor

reno. "T his conclusi on is signific ant becau se a search may be justified by a voluntary oral consent even in the absence of a v alid writte n consent ." Chaidez , 906 F.2d at 38 2 (citing United Sta tes v. C astillo , 866 F.2d 1071, 1082 (9th Cir. 1988)). Thus, after

review of the record, we conclude that the district court's finding that Morren o volun tarily consen ted was not clearly erroneou s.

III. A. Motion to Suppress - Beltran-Hernandez Beltran-Hernandez first cont ests the dis trict cou rt's den ial of his m

otion to suppress, arguingthat he did n ot voluntari ly cons ent to the search of his ap artm ent. We find this argument unpers u asive. Applying the relevant factors, we find that Beltran-Hernandez's words, g est u res, and conduct show ed consent. Barahona , 990 F.2 dat 418. Beltran-Hernandez appeared to be sober; was not threatened; was tol d that he could refuse consent; and read the Spanish consent-to-searc h form wh ich stated he h ad the righ

t to refuse

consent of

the search of his ap artm ent.-9-

Beltran-Hernandez cooperated with the officer s. When Officer Heat h explained (in Spanish) that the officers were involved in a narcotics investigation and wanted to speak wit

h him, Beltran- Hernand ez open ed his apar tment door com

pletely and allowed the officers to enter. When the officer s entered , Offi cer He athexplained to Beltran-Hernandez and the ot her occupa nts why the offi cers we re there. Officer Heat h askedBeltran-Hernandez if the officers could search the a partmen t for drugs , and Beltran-He rnand ez orally consented. Beltran- Hernande z also signe d a Spanish consent-to-search form. Beltran-Hernan dez communicated wi th t he officers during the search. After c onsidering t he totality

of the cir cumst ances, w e conclude that the district court's f

inding that B eltran-H ernandez knowingly , intellig ently, and volunt arily consent ed was not cl early erroneous

.
B. Sufficiency of the Evidence Next, Beltran- Hernande z contends that the evidence wa s insufficient to support his conspiracy

conviction, and the dist

rict cour t erred b y ref

using to gran

t his mot ion for judgm ent of acq

uittal. We disagree. W

hen a judgment of acquittal is sought on the basis of insuffi ciency of the ev idence we view the e vidence in the light m ost favorabl e to the guilty v e rdict, giving the gove rnme nt the bene fit of all reasonabl e inferenc es. United

States v. Smith , 32 F.3d

1291, 1292 ( 8th Cir. 1 994). "W e revers e only if we co nclude that

a reasona ble fact-finder must have entertained a reasona ble do ubt about the government's proof of one of the offense's essential elem ents." Unite d States v. Ivey , 915 F.2d 38 0, 383 (8t h Cir. 1990 ).

To sustain a conviction for conspiracy to distribute metham pheta mine, the governm ent mu stprove bey ond a reas onable doubt: 1) that the re was a n agreem ent to distributemetha

mphet amine ; 2) that th e defenda nt knew of

the agreement; and 3) that the defen dant

knowingl y participated in the con spiracy. United States v. NamboBara jas , 338 F.3d 956 , 960–61 (8t h Cir. 200 3). The

governm ent ma

y prove th i s agreem ent wholly by direct or c ircumstantial evidence. United States v. Shoffner , 71 F.3d 1429 , 1433 (8t h Cir. 1995 ).-10-

Beltran-Hernandez argues that there was insufficient evidence to establish that he entered i

nto an agre emen

t to distribute 500 grams or more of m ethamphetamine, and therefore, the eviden ce cannot sustain his c onviction fo r conspira cy to di stribute metham phetamine. Viewe d in the light m ost favora ble to the verd

ict, we find that t

he government's evidence was sufficien t to sust ain the jury's verd ict.

Beltran-Hernandez knowingly becam e part of

a conspira cy to distr ibute

me thamphetamine. According to Smith, Belt ran-He rnandez us ed the occ upants o f Apartm ent No. 4 to make drug deliveries and used their apa rtment to store h is drugs. Smit h also stated that Morreno l ived with B eltran-H ernandez and supplied narcotics for both Apart ment No. 7 and Apart ment No. 4. A reasonab le jury could have found beyond a reasona ble doubt that B eltran-H ernandez and the occupants of A

partm ent No. 4 were involved in a conspiracy to distribut e methamphetamine. Therefore, we affirm the district court's denial of Beltran-Her nandez' s motio ns for ju dgment of acquittal

.
C. Safety Val ve of U.S.S.G. § 5C1 .2 Fin all y, Beltran- Hernande z asserts that the dis trict cour t erred in refusing to reduce his sentence under the "s afety va lve" p rovi sion of U.S.S .G. § 5C 1.2. We disagree. Under the

"safety valve" exc eption, a

drug defe ndant

may be given a more lenient sentenceif, am

ong other things, the de fendant de monstr ates that h e has truthfully pro vi ded to th e go ver nmen t al l in for mati on reg ard in g t he r ele van t cr ime before sent encing. United States v. Velasquez , 141 F.3 d 1280, 1282 (8th Cir. 1998) (citing U.S. S.G. § 5C1.2(5) ); United Stat e s v. R omo , 81 F.3d 84, 85–86 (8th Cir. 1996).

The "safety val ve" p rovision re quired Be ltran-H ernandez to provide t

he governm ent

with accurate inf

orma tion concer

ning his involvem

ent in the conspiracy and his knowle dge of those

involved in

the c rime. At sentencing, the district court concluded that Belt

ran-He rnandez di d not fully advise the

governm ent about

his role-11-

in the distribution conspiracy, and therefore was no t entitled to the "safety valve" reduction. The cour

t noted that

Beltran- Hernande z conti nued to maint ain his ignorance of

the conspiracy. The district court concluded that Beltran-Her nandez had not "come clean" in his affi da vit purporti ng to set for

th his knowle dge of the conspira cy. We conclude that the distr ict court's finding is not cle arly erroneous

.
IV. For the foreg oing reas ons, we affirm the jud gment of the di strict cou rt.

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