This appears to be appellant’s legal name as opposed to the other names 1 listed in the caption. Daniel Alejo was the name on the driver’s license appellant produced, and the name Jose O. Martinez came up in a criminal history check performed at the scene of the traffic stop.



## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 98-3121

___________ United States of America, * Plaintiff-Appellee, *

v. * Jose O. Martinez, also known as * District Court for the District of Daniel Alejo, also known as Pedro C. * Nebraska. Alejo * Defendant-Appellant. * *

*

* Appeal from the United States

*

___________ Submitted: December 18, 1998 Filed: January 22, 1999

___________ Before MURPHY, JOHN R. GIBSON, and MAGILL, Circuit Judges.

___________ MURPHY, Circuit Judge. After Pe dro Alejo was stopped for moving violations, sixteen pounds o f 1 methamphetamine were found in the car he was driving. He was charged with oneThe Honorable Richard G. Kopf, United States District Judge for the District 2 of Nebraska.
-2- count of possession with intent to distribute methamphetamine in violation of 2 1 U.S.C. § § 841(a)(1) and 841(b)(1)(A), convicted after a jury trial, and sentenced t o serve 168 months. On ap peal Alejo argues that the district court erred in denying his 2 motion to suppress evidence, his Batson challenge, his motion for acquittal, and hi s request for a minor role sentencing reduction. We affirm. Alejo was stopped on an interstate highway in Nebraska on May 17, 1997, after state trooper Gerald Schenck observ ed his vehicle follow another too closely and pass unsafely. Schenck initiated the stop by turni ng on the overhead lights of his squad car,
cau sing a video camera within his car to begin recording; a wireless microphone was also cli pped on the trooper’s lapel. After Alejo pulled over, Schenck approached the driver’s door and requested license and registration information. Schenck spoke t o Alejo in English. Alej o produced an Indiana driver’s license bearing the name Daniel Alejo and an incomplete bill of sale for the car which showed Daniel Alejo as th e buyer. Alejo explained that he had originated his trip by flying from Indiana t o California where he had pur chased the car for $2000 and that he was on his way back to Indiana. Trooper Schenck indicated that he planned to issue Alejo two warnin g citat ions and returned to his vehicle to complete them. He also ran a criminal history check on Daniel Alejo, the named person on the driver’s lic ense presented to him. The info rmation he received indicated that Daniel Alejo had a prior conviction fo r transporting illegal aliens and that he had also used the name Jose O. Martinez. The trooper went back to appellant’s ca r, returned the license, and asked more questio ns about the vehicle purchase. Alejo responded that he had purchased the car from a friend. Schenck found this inconsistent with Alejo’s previous comments an d proceeded to ask several more questions about the seller of the vehicle. Alejo finally said he didn’t know the name of the person who sold him the car.-3-

Schenck then asked Alejo for permission to search the car. Alejo said “OK.” Schenck asked if Alejo could read either Spanish or English, and Alejo responded that he could only read Spanish. Schenck then returned to his vehicle for a consent form
wr itten in Spanish. Schenck told Alejo to make sure he understood the form, but h e did not ad vise him that he could refuse to sign it and did not read it out loud to him

. Alejo signed the consent form without further conversation. Schenck asked Alejo to step out of the vehicle, and he began to inspect it. After a brief search of the interior, he went back to his squad car to get Nero, the service dog riding with him. The dog alerted near the trunk of Alejo’s car. When Schenck opened the trunk , he noticed it was very clean except for a few metal shavings under th e carpet. H e went on to discover a metal plate and wires running behind the back seat, and two nylon gym bags tucked into a compartment built between the trunk wall and the back seat. The bags contained what was later determined to be approximatel y si xteen pounds of methamphetamine. Alejo was taken into custody and interviewe d in English. He admitted that his real name was Pedro Alejo, that Daniel Alejo was his brother, and that he h ad used a driver’s license in his brother’s name because his own had been suspended.

I. Alejo appea ls his conviction and his sentence, and seeks a new trial o r res entencing. He claims the search violated the Fourth Amendment and that it wa s cl ear error for the court to find he had consented to it, that his constitutional right s were also violated when the prosecutor struck the only person of color from the jury veni re panel, that there was not sufficient evidence to support a finding that h e knowingly possessed the metham phetamine, and that he should have received a minor role reduction under U.S. Sentencing Guidelines Manual § 3B1.2 [U.S.S.G.].

A.The Honorable David L. Piester, United States Magistrate Judge 3
-4- The dist rict court adopted the finding of the magistrate judge that Alejo ha d 3 voluntarily consented to the search. Alejo asserts the c ourt erred in denying his motion to suppress the evidence seized from his car. He argues it was error for the court t o find he consented to the search bec ause he did not understand English or read Spanish well enough to give his voluntary and intelligent consent. The magistrate found tha t Alejo wa s able to read the consent form, albeit slowly, and had lived and worked i n Indiana for twenty years. He fo und that Alejo understood English enough to converse with the trooper and to give his knowing consent. Although Schenck was “less than
accom modating,” the magistrate found that Alejo had not been coerced or his wil l
over borne. A decision not to suppress evidence will be upheld unless it rests upo n clea rly erroneous findings of fact or reflects an erroneous view of the applicable law. United States v. Berry , 113 F.3d 212, 122 (8th Cir. 1997).

A consensual search does no t violate the Fourth Amendment if the consent was volunta rily given without coercion, United States v. Cortez , 935 F.2d 135, 142 (8t h Cir. 1991). A traffic violation alone will not justify an automobile search; there must be probable cause or consent. Knowles v. Iowa , 119 S. Ct. 484 (1998). In order t o determine if consent is voluntary a court should look a t all the circumstances, including the n ature of the interchange, the characteristics of the individual stopped, and th e coerciveness of the environment. United States v . Chaidez , 906 F.2d 377, 380-81 (8th Cir. 1990). Voluntary consent need not amo unt to a waiver; consent can be voluntary without being an “intentional relinquishment or abandonment of a known right o r privilege.” Id. An officer is not r equired to warn a driver that he does not have to sign a consent form. United States v. Ramos , 42 F.3d 1160, 1164 (8th Cir. 1994). A careful review of the videotape of the stop in this case shows that the findings below were not clearly erroneous. Alejo verball y agreed to let Schenck search his car,The parties disagree about when the prosecutor learned that the juror was a 4 Native American, but for purposes of our analysis we adopt Alejo’s position. -5- and he si gned a Spanish language consent form after indicating that he could rea d Spanish. Sc henck spoke to Alejo in a normal tone of voice and did not display a we apon or remove Alejo from his car. Alejo did not appear intoxicated or lacking in intelligenc e. It is also relevant that Alejo had some prior experience with the lega l system involving the suspension of his driving privileges. Alejo argues that the trooper did not have reasonable suspicion to continue t o deta in him after completing the citations and returning his license. Alejo’ s nervousness and apparent inco nsistent answers to Schenck’s questions, certain details appea ring on the bill of sale Alejo had presented, and the information obtained fro m the lice nse check gave rise to reasonable suspicion sufficient to permit furthe r questioning. See United States v. Ramos , 42 F.3d 1160, 1163 (8th Cir. 1994); see also UnitedStates v. McManus , 70 F.3d 990, 993 (8th Cir. 1995). The request to search
was not itself a violation of the Fourth Amendment. See United States v. White , 8 1 F.3d 775, 778-79 (8th

Cir. 1996). The district court did not err in denying the motion to suppress evidence.

B. Alejo contends that his constitutional rights were also violated by th e government’s use of a peremptory strike to remove the only person of color from the jury panel. See Batson v. Kentucky , 476 U.S. 79, 89 (1986). Alejo argues that th e reasons offered by the prosecutor for the st rike were pretextual and that the prosecutor knew that the juror was a Native American at the time he made the strike. 4

Batson challenges are analyzed in three steps. A party opposed to th e government’s use of a peremptory strike must make out a prima facie case of-6-

di scrimination. Then the burden shifts to the government to produce a race-neutra l explanation. Purkett v. Elem , 514 U.S. 765, 767 (1995). If a race-neutral explanation is tendered, the court must then determine whether purposeful racial discrimination has been pr oven. This may include analyzing whether the reasons offered are pretextual. Id. The court’s ultimate finding of whether there was discrimination is reviewed fo r clear error. United States v. Carr , 67 F.3d 171, 175 (8th Cir. 1995).

When Alejo raised his Batson challenge, the court asked the government t o explain the basis of its challenge. The court accepted as race-neutral the prosecutor’s expl anation that the juror had been struck because of her marital status and age an d because her body position and eye contact during voir dire suggested an attitud e unf avorable to the government. The court concluded that the government’s action s were not discriminatory, and there wa s no evidence that similarly situated white jurors
were not stricken. The district court was “in the best position to evaluate th e truthfulness of [the] as serted explanation,” United States v. Jenkins , 52 F.3d 743, 746 (8th Cir. 1995), and Alejo has not shown the court erred in rejecting his challenge.

C. Alejo also objects to the deni al of his motion for judgment of acquittal, because of insu fficient evidence that he knowingly possessed the methamphetamine. Th e go vernment

responds that it produced sufficient evidence to support the finding tha t Alejo was aware of the drugs in the car. A denial of a m otion for judgment of acquittal should be reversed “only where the evidence , viewed in the light most favorable to the government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of the essential elemen ts of the crime charged.” United States v. Mundt , 846 F.2d 1157, 1158 (8th Cir. 1988). “Whilereasonable inferences from the evidence weighagainst the defendant, speculation does not.” United States v. Pace , 922 F.2d 451, 453 (8th Cir. 1990).-7-

The element of knowing possession is normally established throug h ci rcumstantial evidence because of the difficulty in obtaining direct evidence of a n individual’s knowledge. See United States v. Ojeda , 23 F.3d 1473, 1476 (8th Cir

. 1994). Here there was evidence of A lejo’s ownership, dominion, and control over the vehicle in which the drugs were found. See United States v. Schubel , 912 F.2d 952, 955 (8th Cir. 1990). There was also testimony i ndicating that Alejo appeared nervous and that there were metal shavings in the trunk and wires and burn marks behind the bac k seat. The jury could have found that Alejo’s apparent nervousness and hi s inc onsistent

answers were related to his knowledge that there were drugs in th e vehic le. The jury could also have found it unlikely that someone would fly fro m Indiana to California to purchase a $2000 car. Although other inferences could have been draw n from the evidence, we cannot say that no reasonable jury would hav e found Alejo knew that the methamphetamine was in the vehicle. The district court did not err in denying the motion for judgment of acquittal.

D.

Finall y, Alejo asserts it was error for the court to deny him a sentencin g reduction under U.S.S.G. § 3B1.2 . A defendant who establishes that he was a “minor participant” in the offense can be granted a two-level reduction. Id. A district court’s findings regarding the role played by a defendant in the offense are reviewed for clear
error. United States v. Snoody , 139 F.3d 1224, 1227 (8th Cir. 1998); United States v. Chatman , 119 F.3d 1335, 1341 (8th Cir. 1997). A role as a courier or mule in a drug distributi on scheme does not necessarily entitle the individual to a § 3B1.2 reduction, Snoody 138 F.3d at 1228. Transportation is a necessary part of illegal dru g distribution, and the facts of the case are critical in considering a reduction for minor
r o le. See United States v. McGrady , 97 F.3d 1042, 1043 (8th Cir. 1996). Given the facts regarding Alejo’s demeanor and statements, the appearance of the inside of the trunk, the manner in which the drugs were secreted in the car, and the large amoun t found, it was not error to deny Alejo a minor role adjustment.-8- III. For the reasons discussed, the judgment of the district court is affirmed.

A true copy.

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