* This order and judgment is not binding precedent, e xcept under the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

### MAR 5 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 01-3220
v. (D.C. No. 99-CR-10151-MLB) ARIEL ABUSTAN ASIDO, (D. Kansas)

Defendant - Appellant.

ORDER AND JUDGMENT *
Before SEYMOURand McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.
After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. Defendant Asido appeals the United States District Court for the District of Kansas’ Memorandum and Order of Clarification afterRemand. Defendant entered a conditional guilty plea to the charge of possessing marijuana with intent-2-

to distribute in violation of 21 U.S.C. § 841(a)(1) . The conditional guilty plea specifically preserved Defendant’s right to appeal the district court’s denial of his motion to suppress evidence of marijuana found in t he vehicle he was driving. Defendant maintained that the challenged evidence w as the product of an unlawful stop, detention, and search of his person. This court upheld the propriety and scope of the of ficers’ stop. See United States v. Asido , 2001 WL 578466, *3-4 (10th Cir. 2001). However, we remanded the issue of consent to search Defendant’s socks an d shoes to the district court for additional fact-finding. Specifically, we stated: [W]e remand that portion of the district court’s or der which held that based on Defendant’s version of events, his consentto allow the troopers to inspect his socks was voluntary, and th e district court is to make findings determining which version of event s actually occurred, and to enter an order consistent therewit h. Id. at *6. Because our prior opinion gives a detailed summary of this case’s background, we do not reproduce that information he re. See id. at *1-3. The standard of review following remand is whether the district court reached its final decree by following the previous opinion and mandate of this court. Phillips Petroleum Co. v. F.E.R.C. , 902 F.2d 795, 798 (10th Cir. 1990) (citing Mobil Oil Corp. v. Dep’t of Energy , 647 F.2d 142, 145 (Temp. Emer. Ct. App. 1981)). Our prior mandate is “to be interpret ed reasonably and not in a manner to do injustice.” Mobil Oil Corp. , 647 F.2d at 145 (citation omitted).-3-

On remand, the district court clarified its previou s opinion by stating that “this court specifically finds that it believed the troopers’ testimony regarding the discovery of the meth pipe, not defendant’s testimo ny, and further finds that defendant consented to the search.” Rec., Vol. I, Exh. 47 at 3-4. However, Defendant contends that the district court erred on remand by disregarding its prior factual findings on the issue of consent and accepting the officers’ version of events at the exclusion of Defendant’s version. Defendant also argues that the district court incorrectly declined to consider evi dence submitted to the district court on remand. Defendant’s first challenge appears to question the factual findings of the district court, especially whether Defendant orally agreed to the search of his socks and shoes (troopers’ version), or whether Def endant simply acquiesced by his actions, i.e. , lifting his left pant leg in response to the troo pers’ command (Defendant’s version). In its original Memorandum and Order, the district court made the following finding: “Defendant responded i n the negative, whereupon Trooper Jimerson asked if he could check defendant’ s shoes and socks. Defendant pulled up his left pants leg voluntarily. ” Rec., Vol. I, Exh. 22 at 3. Defendant argues that by accepting the troopers’ te stimony and rejecting Defendant’s version of events the district court onremand contradicted a prior finding of fact–that Defendant did not orally conse nt to a search of his socks and-4-

shoes. We read the district court’s original factu al summary differently. In its original Memorandum and Order, the district court s tated that “Defendant pulled up his left pant leg voluntarily.” Id. This statement simply indicates that Defendant was not coerced in his decision to lift up his left pant leg but takes no position as to whether Defendant orally agreed to t he search of his socks and shoes prior to lifting his left pant leg. The district court’s decision to believe the factua l content of the troopers’ testimony over Defendant’s is subject to review by this court for clear error. “Findings of fact, whether based on oral or documen tary evidence, shall not be set aside unless clearly erroneous, and due regard shal l be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Fed. R. Civ. P. 52(a);

see Salve Regina College v. Russell , 499 U.S. 225, 233 (1991). More importantly, “when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted b y extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error .” Anderson v. City of Bessemer City , 470 U.S. 564, 575-76 (1985) (citations omitted) ( emphasis added). Because we find the troopers’ version of e vents facially plausible, not contradicted by extrinsic evidence, and not interna lly inconsistent, we cannot say that the district court clearly erred in believing the troopers’ version of events-5-

over Defendant’s. Defendant’s second contention is that the district court refused to consider factors on remand that were part of the initial rec ord and considered by the court in the first instance. Defendant argued that the t roopers’ size and the fact that they touched him physically should be considered in determining whether Defendant felt free to leave at anytime. The distr ict court rejected these arguments on two grounds. First, Defendant did notpresent these arguments at the suppression hearing. Second, Defendant did nottestify that either of these two factors affected his belief that he was free to leave. See Rec., Vol. I, Exh. 47. It is true that the district court stated, “This co urt declines to consider those factors.” Id. at 2. However, the district court had already det ermined that these factors were inapplicable in this case. The distri ct court rejected Defendant’s arguments regarding the size of the officers and th e physical contact between the troopers and Defendant because Defendant himself ne ver articulated these factors as reasons why he felt he was not free to leave. A t the suppression hearing, Defendant indicated that the change in the troopers ’ tone of voice was the reason why he did not feel free to leave. We find that th e district court committed no error on this issue. In sum, the district court’s decision is consistentwith this court’s prior-6-

opinion and our instructions on remand. Therefore, we affirm the district court’s decision to deny Defendant’s Motion to Suppress. AFFIRMED
. Entered for the Court
Monroe G. McKay Circuit Judge