Ryan Grey v. City of Oak Grove

1The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2209
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Jose Adolfo Meza-Gonzalez, *
*
Defendant - Appellant. *
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Submitted: November 15, 2004
Filed: January 6, 2005
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Before MURPHY, HANSEN, and MELLOY, Circuit Judges.
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MURPHY, Circuit Judge.
A jury convicted Jose Adolfo Meza-Gonzalez of conspiracy to distribute
methamphetamine and of attempt to possess methamphetamine with intent to
distribute. The district court 1 sentenced Meza-Gonzalez to 188 months. On appeal
Meza-Gonzalez argues that the district court erred in denying his motion to suppress
evidence, allowing the prosecutor to strike the only minority member of the jury
panel, and enhancing his sentence. We affirm.

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On the morning of October 27, 2003, law enforcement officers arrested Juan
Jose Ramirez at the Omaha bus station after they discovered methamphetamine in his
travel bag (2,722.3 grams of methamphetamine mixture or 408 grams of actual
methamphetamine). Ramirez told the officers that he was traveling to Des Moines
to deliver the drugs to a man named Adolfo or Alfred whom he described as a clean
cut Hispanic male in his late twenties with short black hair, approximately five feet
eight inches tall, and weighing 150 pounds. Ramirez reported that Adolfo was going
to meet him at the Des Moines bus station and that he drove a gray Chevrolet van.
He also stated that Adolfo lived either in a blue house near East 30th Street and
University or in a white house two blocks from University and close to a Family
Dollar Store. Because Ramirez was only sixteen years old, the officers did not use
Ramirez in a controlled delivery.
The officers contacted the United States Immigration and Customs
Enforcement (ICE) and the Drug Enforcement Administration (DEA) in Des Moines,
and surveillance was set up at the bus station where the bus was scheduled to arrive
at approximately 2:40 p.m. A gray Chevrolet van arrived at the station at
approximately 2:55 p.m., and a check of its license plates showed that it was
registered to Jose Adolfo Meza. Officers saw two Hispanic males in the van. The
man in the passenger seat, later identified as Leonel Gonzalez-Salgado, walked into
the bus station and returned alone. The van then left the station, and officers followed
it to a house located at 1623 East 14 th Street and then to a nearby Family Dollar store.
As the van left the store, the DEA requested that a marked police car stop it. The
officer who stopped the van advised the driver that his gas tank lid was open. The
van was being driven by Jose Adolfo Meza-Gonzalez, who produced a valid driver
license from Oregon and said that he resided at the house on East 14 th Street. The
officer arrested Meza-Gonzalez because he was unable to provide proof of insurance.
After the arrest, officers went to Meza-Gonzalez's residence without a search
warrant. ICE Agent Neil Marley knocked on the door, and Maribel Salgado-Alamilla

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answered. She is the common law wife of Meza-Gonzalez and the mother of his two
children. Agent Marley is fluent in Spanish and spoke with Salgado-Alamilla in that
language since it appeared she did not speak English. Marley identified himself as
a federal officer and asked her if anyone else was present in the residence. She
responded that only she and her two children, aged 2 and 3, were at home. According
to Salgado-Alamilla, Marley asked her if the officers could verify that no one else
was in the house; she agreed and allowed them to enter the residence.
Marley informed Salgado-Alamilla that they were conducting an investigation
regarding narcotics, read her Miranda rights, and asked for consent to search the
residence. Salgado-Alamilla said that she did not want the officers to search the
home because her husband was not present, and Marley told her that Meza-Gonzalez
had been arrested and was in custody. Marley testified that she then consented to a
search of the residence, but Salgado-Alamilla claims that she never gave consent.
Five or six officers searched the house while Salgado-Alamilla sat on a couch.
She testified that the officers separated her from her two young children and
threatened to take them from her permanently and deport her if she did not give them
the names of other people involved in drugs. She also testified that Marley told her
that Miranda rights would be of little value to her because she was an illegal alien.
Marley testified that the officers never separated the children from their mother, but
he admitted that toward the end of the search he told her she could be deported. He
also said that he was not going to detain her that evening because she had two small
children and was pregnant.
During the search officers seized narcotics packaging material in one of the
bedrooms, in the oven in the kitchen, and on the basement floor. The materials in the
basement tested positive for methamphetamine. They also seized a digital scale and
$5300 in cash from Salgado-Alamilla's purse. She told the officers that she knew

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nothing about the money, but she later testified at the suppression hearing that the
money was from the sale of her husband's truck.
A grand jury indicted Meza-Gonzalez on charges of conspiracy to distribute
500 grams or more of a mixture or substance containing methamphetamine and of
attempt to possess with intent to distribute 500 grams or more of a mixture or
substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. Meza-Gonzalez moved to suppress evidence obtained from
the search of his residence on the ground that his wife had not consented to it.
The district court denied the motion, and the jury convicted Meza-Gonzalez on
both counts. The court imposed concurrent sentences of 188 months. In determining
the amount of methamphetamine attributable to Meza-Gonzalez, the district court
relied on the trial testimony of Ramirez, who said that he had made two deliveries to
Meza-Gonzalez totaling about twelve pounds prior to his interception in Omaha with
a large amount in October 2003.
Meza-Gonzalez appeals his conviction and sentence and seeks a new trial or
resentencing. He claims that the district court erred in denying his motion to suppress
because Salgado-Alamilla had not consented to the search, that the district court erred
in allowing the government to exercise a peremptory strike of the only minority juror
on the jury panel, and that the district court violated his Fifth and Sixth Amendment
rights by enhancing his sentence based on drug quantities that were not found by the
jury, admitted by him, or charged in the indictment.
We review the district court's factual finding of consent for clear error and
review de novo the denial of the motion to suppress. United States v. Morreno, 373
F.3d 905, 910 (8th Cir. 2004).

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In considering the motion to suppress, the district court weighed the conflicting
testimony of Agent Marley and Salgado-Alamilla and determined that Marley's
testimony was more credible. The court noted that there was no evidence in the
record to suggest that Marley would testify falsely but that Salgado-Alamilla had a
motive to do so. The court also found that Salgado-Alamilla's testimony about what
the officers said to her was greatly embellished and undermined her credibility. The
court found that Salgado-Alamilla voluntarily consented to the search and that she
had not attempted to withdraw or limit that consent at any time.
Meza-Gonzalez argues on appeal that the court erred in finding that Salgado-
Alamilla gave voluntary, unrestricted consent to search the residence. He contends
that the court clearly erred in crediting Marley rather than Salgado-Alamilla and that
Marley's claim of voluntary consent is implausible because of Salgado-Alamilla's
immigration status, her inability to speak English, her need to attend to her young
children while the six officers were in her home, and her unrefuted initial refusal to
allow a search when her husband was not at home. Meza-Gonzalez also contends that
the absence of written consent is strong evidence against a finding of consent because
the officers had time and opportunity to present a written consent form to Salgado-
Alamilla, and it was DEA policy to do so.
A consensual search does not violate the Fourth Amendment if the consent was
given voluntarily and without coercion. United States v. Martinez, 168 F.3d 1043,
1046 (8th Cir. 1999). The government bears the burden of proving voluntary consent
by a preponderance of the evidence. Morreno, 373 F.3d at 910; see Bumper v. North
Carolina, 391 U.S. 543, 548 (1968). The scope of consent is measured under a
standard of objective reasonableness, and we look at what the typical reasonable
person would have understood from the exchange with the officer. Florida v. Jimeno,
500 U.S. 248, 251 (1991); United States v. Adams, 346 F.3d 1165, 1171 (8th Cir.
2003). Determination of consent necessarily involves judging the credibility of
witnesses, a task generally left to the district court. United States v. Welerford, 356

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F.3d 932, 935 (8th Cir. 2004). As the Supreme Court has stated, "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 by extrinsic evidence, that finding, if not internally inconsistent, can
virtually never be clear error." Anderson v. Bessemer City, 470 U.S. 564, 575 (1985);
see Welerford, 356 F.3d at 935-36.
Given the strong weight accorded the district court's credibility determinations
and the absence of extrinsic evidence contradicting Marley's testimony, it was not
clearly erroneous for the district court to find that Salgado-Alamilla consented to the
search of the residence. In addition to his testimony about her consent, Marley
testified that Salgado-Alamilla was able to see much of the progress of the search
from her place on the couch and that she did not object to the search at any time. See
United States v. Alcantar, 271 F.3d 731, 738 (8th Cir. 2001) (failing to object to the
continuation of a consent search makes the continued search objectively reasonable).
We examine the totality of the circumstances in determining whether consent
was given voluntarily, including the nature of the encounter and the characteristics
of the consenting party. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973);
United States v. Chaidez, 906 F.2d 377, 380-81 (8th Cir. 1990). Relevant facts
include (1) the individual's age; (2) her general intelligence and education; (3)
whether she was under the influence of drugs or alcohol; (4) whether she was
informed of her Miranda rights prior to any consent; and (5) whether she had
experienced prior arrests and was thus aware of the protections the legal system
affords suspects. United States v. Hathcock, 103 F.3d 715, 719-20 (8th Cir. 1997).
A review of the record shows that the district court's consent finding was not
clearly erroneous. Salgado-Alamilla was twenty eight years old, Marley informed her
of her Miranda rights, and nothing in the record suggests that she was under the
influence of drugs or alcohol. Although Salgado-Alamilla did not speak English,

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Marley was fluent in Spanish and testified that they had no problems communicating
with each other. The district court credited Marley's testimony that the officers did
not take Salgado-Alamilla's children away from her, limit her Miranda rights, or
threaten to deport her if she did not cooperate. We conclude that the district court did
not err in denying Meza-Gonzalez's motion to suppress.
Meza-Gonzalez also contends that his constitutional rights were violated by the
government's use of a peremptory strike to remove the only racial minority from the
jury panel. See Batson v. Kentucky, 476 U.S. 79 (1986). Under the Batson
framework, the opponent of a peremptory challenge by the government must make
a prima facie case of discrimination. The burden then shifts to the government to
produce a race neutral explanation for the strike. If it expresses a race neutral reason,
the court must then decide whether its real reason was based on race. Batson, 476
U.S. at 97-98. The question may be framed in terms of pretext, that is whether the
neutral reason advanced is only pretextual, but "[u]nless a discriminatory intent is
inherent in the prosecutor's explanation, the reason offered will be deemed race
neutral." Purkett v. Elem, 514 U.S. 765, 767-68 (1995). We review a district court's
Batson findings for clear error. Miller v. United States, 135 F.3d 1254, 1256-57 (8th
Cir. 1998).
During jury selection, the government struck Jana Bragg, a black woman and
the only racial minority on the jury panel. The court asked Bragg general questions
during voir dire, including what she did for a living. She responded that she was a
tech at a group home that served mentally challenged and physically disabled clients,
even though she had stated on her jury questionnaire that she was a teacher. After the
government executed its peremptory strikes and struck Bragg, defense counsel
challenged that strike, arguing that it had been based on Bragg's race. The court
asked the government its reason for the strike, and the prosecutor responded that the
reason was because Bragg worked in the "social worker realm" and pointed out that
she had also stricken the only other person on the panel who worked in the social

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work field. In addition the prosecutor stated that Bragg's jury questionnaire appeared
to have been filled out hurriedly without time or attention and that she had "extremely
long fingernails, probably over an inch in length, with multiple colors on them, which
would also tend to make her more liberal rather than conservative and for that reason
not a good juror for the prosecution."
Defense counsel noted that the prosecutor had not stricken other teachers from
the panel and asserted that African American women are more likely to have long,
brightly colored fingernails. The prosecutor responded that in her personal
experience, colored fingernails are not an indication of race but rather of a liberal
nature. The district court denied the challenge, stating that the government only had
to come forward with a nondiscriminatory reason for the strike, that the prosecutor
had done so, and that the reason given was not pretextual.
Meza-Gonzales now argues that the district court erred because it did not
analyze all three reasons given by the prosecution, but simply rejected the Batson
challenge on the basis of one of the reasons. He contends that the government
violates Batson any time race is improperly considered when striking a juror even if
other nondiscriminatory reasons are offered for the strike. Meza-Gonzalez argues
that long, brightly colored fingernails are stereotypically associated with black
women and that striking the juror on this basis was the same as striking her based on
race.
Meza-Gonzalez has presented no evidence to show that black women are more
likely to have long, multicolored fingernails, and there is no evidence in the record
to suggest that such fingernails are a racial indicator. There is also nothing to suggest
that the prosecutor's observation about Bragg's jury questionnaire was based on race,
and the prosecutor struck the other juror who worked in a social work setting. Having
reviewed the record, we find that the district court did not clearly err in finding no
purposeful racial discrimination or in rejecting Meza-Gonzalez's Batson challenge.

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2Meza-Gonzalez also argues that the district court committed plain error by
enhancing his sentence using drug quantities not found by the jury, admitted by the
defendant, or charged in the indictment, citing Blakely v. Washington, 124 S. Ct.
2531 (2004). The government argues that Blakely does not apply to the federal
sentencing guidelines but even if it did, Meza-Gonzalez has not demonstrated plain
error because he has not shown that the error seriously affected the "fairness,
integrity, or public reputation of [the] judicial proceedings." See United States v.
Cotton, 535 U.S. 625, 632-33 (2002). Since any ruling on these points would be
premature before the Supreme Court decides its pending cases with Blakely issues,
we decline to consider them at this time. See Administrative Order Regarding Blakely
Cases, United States Court of Appeals for the Eighth Circuit, Sept. 27, 2004.
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For these reasons, we affirm the judgment of the district court.2
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