United States v. Mancillas, Noe

In the

United States Court of Appeals

For the Seventh Circuit

No. 98-1001

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NOE MANCILLAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 97 CR 64--Sarah Evans Barker, Chief Judge.

ARGUED October 1, 1998--DECIDED JULY 7, 1999

Before COFFEY, KANNE and DIANE P. WOOD, Circuit

Judges.

COFFEY, Circuit Judge. Noe Mancillas was

convicted before a jury of being a felon in

possession of a firearm, one count of possession

of marijuana with intent to distribute, and one

count of knowingly carrying a firearm during, and

in relation to, a drug trafficking offense. On

appeal, Mancillas challenges the district court’s

denials of written and oral motions to suppress,

the admission of expert testimony by a law

enforcement officer, the court’s jury

instructions, as well as the sentencing judge’s

refusal to grant a reduction for acceptance of

responsibility under USSG sec. 3E1.1 and the

court’s enhancement for obstruction of justice

pursuant to USSG sec. 3C1.1. We AFFIRM.

BACKGROUND

A. The December 17, 1996, Stop and Arrest of

Defendant-Appellant Noe Mancillas.

On December 17, 1996, at about 1:35 a.m.,

Indianapolis Police Department ("IPD") Officer

Douglas Cook was patrolling the south side of

Indianapolis in his marked police cruiser when he

received a radio dispatch reporting that the IPD

had just received an anonymous telephone tip from

an unidentified citizen who observed a Hispanic

male with a gun in his hand seated in a blue

Mercedes-Benz parked in the Hot’s Show Club ("the

Club"), located at 255 West Morris Street,

Indianapolis, Indiana. Officer Cook was within

one mile of the Club when he initially heard the

radio dispatch and immediately responded to the

call despite the fact that it was snowing heavily

at that time.

The Club’s parking lot was illuminated with two

large security lights, and upon entering the lot,

Cook immediately spotted the blue Mercedes. Cook

pulled his cruiser to within approximately

fifteen to twenty feet of the car, with his

vehicle facing the front of the Mercedes at an

angle. At this time, Cook activated the high-

intensity spotlight on his squad car. After the

officer illuminated the Defendant’s vehicle, a

Hispanic male (who later proved to be Appellant

Noe Mancillas) exited the front driver’s side

door, and two white males (Chuckie Will Hardman

and James Marshall) also exited the car.

Patrolman Cook testified that after the

individuals left the vehicle, each of them began

to walk in a different direction, and only

Hardman walked toward the entrance of the Club

even though it was the only business enterprise

open after 1:30 a.m.

Officer Cook exited his squad car, drew his

revolver, and directed the suspects to stop and

return to their car. The suspects complied, and

Cook, who stood near his driver’s door about ten

or twelve feet from the Mercedes, instructed the

three men to bend from the waist and individually

place their hands on the car’s hood. Cook

testified that at that time, "for officer safety,

being by myself [with] three gentlemen in front

of me with [a] suspected handgun involved, I was

going to wait for my backup." After each of the

suspects placed their hands on the car’s hood,

Cook walked toward them and observed what he

believed to be a "chrome handgun lying on top of

the dash[board] directly over the steering wheel

of the [Mercedes] vehicle." Cook stated that

despite the snowy and wintery conditions, he was

able to see the gun on the dashboard because an

area at the base of the windshield was clear,

possibly because the engine had been running and

the defroster had been operating.

Approximately one minute after Cook directed the

suspects to return to their car, backup IPD

Officer James Lopossa arrived, parked, and

assisted Cook in conducting a "patdown" of the

suspects to ensure that they were unarmed. He

did not find any weapons on the suspects. During

this period of time, Patrolman Cook remained near

his vehicle but continued to have his gun drawn

in order that he might "cover" his partner

Lopossa during the patdown safety search. At

trial, in response to questioning by Mancillas’

attorney, Cook testified that the suspects were

no longer free to leave at the time of the

patdown search and stated that the individuals

were "detained" but were not "in custody."

After Lopossa finished with the patdown weapon

search of the suspects, Cook re-holstered his

revolver and walked toward the Mercedes and the

suspects, and as he neared the vehicle he again

observed the gun in plain view on the dashboard.

Officer Cook asked the three subjects, "who’s got

the gun in the car?" The only response came from

Appellant Mancillas, who stated simply, "no."

Cook then asked, "is there a gun in the car?"

Mancillas again responded "no," while the others

remained silent. Cook asked the subjects another

time if there was a gun in the car, and again,

Mancillas replied "no." Finally, Cook informed

the men that he had received a radio report that

someone seated in a blue Mercedes parked at the

Club was holding a gun, and Cook faced Mancillas

directly and asked him, "[i]s there a gun in the

car?", at which time Mancillas, who had been

seated in the driver’s seat prior to exiting his

vehicle, admitted that there was a gun inside the

vehicle but when asked, failed to state who owned

the gun.

Cook attempted to open the driver’s door, found

it locked and asked Mancillas whether he had the

keys and Mancillas gave them to him. Cook

unlocked and opened the driver’s door, pointed

out that there was a gun on the dashboard above

the steering wheel, and asked Mancillas "what

[is] this?" According to Cook, Mancillas

responded, "[t]hat’s my gun." An inspection

revealed that the handgun was a loaded Taurus .40

caliber weapon containing eleven rounds of

ammunition in the magazine and one live round in

the chamber.

Officer Lopossa next opened the passenger’s

front door and discovered a second gun lying on

the console between the bucket seats. The second

gun was a loaded Raven Arms .25 caliber semi-

automatic weapon with four rounds in the magazine

and one live round in the chamber. Lopossa

unloaded the second handgun. Cook also had an

opportunity to observe drug paraphernalia lying

on the console in plain view consisting of

several glass crack pipes, a mini butane torch,

a set of portable digital scales, a pager, and a

white rock that Cook recognized (due to his

training) as crack cocaine wrapped inside a clear

baggie. Cook testified that based upon his

training and experience, he was aware that butane

torches were often used to light crack pipes, and

that scales were used to measure the weight of

controlled substances. Cook further testified

that at this juncture, "everyone [was]

effectively under arrest" for possession of

controlled substances and drug paraphernalia.

Patrolman Cook walked to the front of the car

and asked each of the men whether any of them had

permits to possess the guns found in the Mercedes

and each of them replied "no." Cook then asked

if any of them were the owner of the Raven Arms

handgun that Lopossa had discovered, and each

suspect denied ownership. (Hardman later admitted

that the weapon was his.)

Prior to impounding the vehicle, Officer Cook

conducted an inventory search of the Mercedes and

explicitly listed in detail the drugs and drug

paraphernalia described previously as well as BIC

lighters and several small screens commonly used

to smoke cocaine. In performing the search, Cook

also opened the trunk of the Mercedes and

discovered a large, clear plastic sealable bag

containing what he believed to be "one-half

brick" of marijuana. Inside the bag, facing out,

was a piece of paper bearing the notation "420

G"; Cook later became aware that this notation

referred to the quantity of the marijuana

contained in the bag: 420 grams.

Shortly thereafter, a police conveyance vehicle

arrived and transported the suspects to police

headquarters. The officers conducted a more

thorough search of the arrestees before placing

them in the police vehicle. Mancillas was found

to be carrying two pagers, a cellular phone, and

$2440 in cash. The search of Marshall resulted in

the discovery of a disposable syringe and three

rocks of crack cocaine. As a result of these

events, on May 28, 1997, a grand jury sitting in

the Southern District of Indiana returned a five-

count Indictment against Defendant Mancillas.

The Indictment charged as follows:

Count One: felon in possession of a firearm

(the Taurus .40 caliber pistol) (18 U.S.C. sec.

922(g)(1));

Count Two: possession of cocaine with intent to

distribute (21 U.S.C. sec. 841(a)(1));

Count Three: possession of marijuana with

intent to distribute (21 U.S.C. sec. 841(a)(1));

Count Four: knowingly carrying a firearm during

and in relation to a drug trafficking offense

(cocaine) (18 U.S.C. sec. 924(c)(1)); and

Count Five: knowingly carrying a firearm during

and in relation to a drug trafficking offense

(marijuana) (18 U.S.C. sec. 924(c)(1)).

On June 4, 1997, Mancillas made his initial

appearance, entered a plea of not guilty to each

of the five charges alleged in the Indictment,

and requested a jury trial.

B. Mancillas’ Written Motion to Suppress Physical

Evidence Obtained from the Interior and the Trunk

of the Mercedes.

On June 20, 1997, Mancillas filed a written

motion to suppress the physical evidence seized

at the time of his arrest (12/17/96) arguing that

the searches of the interior and the trunk of his

Mercedes violated his Fourth Amendment rights. On

September 12, 1997, the trial court conducted a

hearing on Mancillas’ motion to suppress and

Officer Cook testified (as described before) to

the events on the date of Mancillas’ arrest.

After the hearing, the district judge entered a

written order denying Mancillas’ motion to

suppress the physical evidence.

Initially, the judge ruled that Patrolman Cook

had reasonable suspicion to investigate Mancillas

and the other suspects. She noted that the radio

dispatch

stated that a Hispanic man in a blue (or dark)

Mercedes had a gun in the Hot[’]s Show Club

parking lot. This report was confirmed . . . when

the officer, arriving at the club, saw the

Defendant, a Hispanic man, and his passenger

inside a blue Mercedes parked in the parking lot.

The three men exited the car in a suspicious

manner immediately after the officer flashed his

spotlight on the front of the vehicle, walking

off in different directions. None of them spoke

to the officer. As he approached, the officer

called to them, directing them to return to their

car. As the officer approached Defendant and his

passengers, he spotted a handgun on the

dashboard, which confirmed the remainder of

details from the radio dispatch. When he asked

the three men about the gun, all denied

possession and ownership. The officer detained

Defendant and his passengers for further

questioning and continued to inquire about

ownership of the gun and whether anyone had a

permit for it. After four separate inquiries to

this effect, Defendant finally admitted generally

that there were firearms in the car, but still no

one claimed ownership at the time. To this point,

no specific violation of law had occurred,

although the officer had reasonable suspicion to

continue his questioning.

Based on the totality of the facts and

circumstances presented, the trial judge found

that Officer Cook had a reasonable suspicion to

believe that criminal activity may have been

occurring, or about to occur, and ruled that the

officer’s actions in stopping and detaining the

suspects were legal. See United States v.

Sokolow, 490 U.S. 1, 7-8 (1989); Terry v. Ohio,

392 U.S. 1, 29-30 (1968).

In addition, the district judge found that the

search and seizure of physical evidence fell

within the parameters of the Fourth Amendment for

two stated reasons. Initially, the trial judge

found that Patrolman Cook observed the gun in

plain view on the dashboard and drug

paraphernalia in the front seat area, and thus he

had probable cause to search the interior of the

automobile and other areas of the vehicle for

other contraband or evidence of a crime. See

California v. Acevedo, 500 U.S. 565, 569 (1991);

United States v. Patterson, 65 F.3d 68, 70 (7th

Cir. 1995). The trial court also determined

that Mancillas gave his car keys to Officer Cook

upon request and thus consented to the search of

his vehicle.

At trial, in the absence of the jury,

Mancillas’ counsel again raised the Fourth

Amendment issues originally debated in his motion

to suppress the physical evidence seized from his

vehicle, claiming that Mancillas’ original stop

and detention, as well as the search of his

vehicle, were unconstitutional. The district

judge at this time elaborated on her written

decision denying the motion, stating that Officer

Cook had reasonable suspicion to stop the

suspects because the details contained in the

radio dispatch were confirmed when he reached the

parking lot, and the suspects exited the car and

walked away in a suspicious fashion. These

factors, combined with the report of a gun and

the officer’s observation of the gun on the

dashboard, "planted in Cook a reasonable

suspicion that there was more to investigate

here." The judge continued, finding that:

Officer Cook’s [decision to] pull his firearm in

order to secure the compliance of the three

suspects . . . did not amount to a custodial

stop. It was a brief restriction of their

liberty. It was for a valid investigative

purpose. The officer had reasonable suspicion to

investigate, and he has testified that he did not

place any of the Defendants under arrest until

after he had established that there was no

firearm permit. . . . The conduct of Officer Cook

was neither coercive nor intimidating under those

circumstances. And, . . . the scope of the

detention did not exceed Terry standards so as to

become a custodial interrogation. And the

restriction of the [Defendant’s] liberty, was

brief both in terms of the time it required and

the extent of the intrusion.

C. Mancillas’ Oral Motion to Suppress Statements

he Made at the Time of his Detention and Arrest.

Also on September 12, 1997, during the

hearing on Mancillas’ motion to suppress,

Mancillas made an oral motion to suppress the

statements he had made at the time of his arrest,

including his admissions as to the ownership of

the Taurus handgun on the dashboard and that he

lacked a permit for the same. Mancillas alleged

that the statements were inadmissible on the

ground that the officers on the scene failed to

advise him either before or after his arrest of

his Miranda rights, and that this omission

violated his Fifth Amendment right against self-

incrimination. See Miranda v. Arizona, 384 U.S.

436 (1966).

The trial judge issued a written order denying

the Defendant’s motion to suppress his statements

concerning ownership of the Taurus gun and that

he lacked a permit for possession of the weapon.

Initially, the judge found that Mancillas waived

the Fifth Amendment argument because he had "not

previously asserted any Fifth Amendment claims

whereby he might have sought to suppress certain

statements [he] allegedly made to the police

officers at the time of or incident to his arrest

for which Miranda warnings had not been

provided." The judge concluded that "any such

Fifth Amendment claims [have] been waived by

Defendant’s failure to assert them in a timely

and complete fashion prior to the conclusion of

the evidentiary hearing." As an alternative to

the finding that Mancillas waived his Miranda

arguments, the court found that Mancillas’

statements admitting ownership of the gun and his

failure to obtain a permit were made prior to

Mancillas’ arrest and prior to any "custodial

interrogation."

At trial, during the government’s examination of

Officer Cook, the Assistant United States

Attorney ("AUSA") posed a series of inquiries to

Cook regarding the questions he had asked the

suspects while in the parking lot. Mancillas’

counsel objected on Fifth Amendment grounds to

Cook advising the jury of Mancillas’ response to

Cook’s inquiry "who’s got the gun" and the trial

judge overruled the objection. Mancillas’ counsel

asked to note a continuing objection on Fifth

Amendment grounds, and the court agreed to note

a continuing objection. In the absence of the

jury, the judge enumerated further reasons for

her decision to admit the testimony regarding the

Defendant’s statements. She reiterated that

Mancillas had "untimely advance[d]" his Fifth

Amendment argument and thus she deemed it

waived.

The judge alternatively ruled that even absent

waiver, she would have denied the motion to

suppress the Defendant’s statements because: (1)

the details of the dispatch were corroborated

when Cook arrived on the scene; (2) the suspects

exited the Mercedes in a suspicious fashion; (3)

Cook observed a firearm on the dashboard above

the steering wheel; (4) the detention of the

suspects lasted no longer than was necessary to

verify Cook’s suspicions and thus was limited in

its intrusiveness; and (5) Cook had returned his

revolver to its holster at the time Mancillas

made the challenged statements. According to the

court,

even though Officer Cook did pull his firearm in

order to secure the compliance of the three

suspects when he ordered them to return to their

vehicle and place their hands on the hood of the

vehicle[, this] did not amount to a custodial

stop. It was a brief restriction of their

liberty. It was for a valid investigative

purpose. The officer had reasonable suspicion to

investigate, and he has testified that he did not

place any of the Defendants under arrest until

after he had established that there was no

firearm permit. . . . The conduct of Officer Cook

was neither coercive nor intimidating under those

circumstances. And . . . the scope of the

detention did not exceed Terry standards so as to

become a custodial interrogation. And the

restriction on [Mancillas’] liberty . . . was

brief both in terms of the time it required and

the extent of the intrusion.

For all of these reasons, the court found that a

Miranda warning was not required and thus

Mancillas’ statements were admissible.

D. The Jury Trial, the Verdict Finding Mancillas

Guilty of Counts One, Three and Five as Charged

in the Indictment, and the Sentence Imposed by

the District Court.

Mancillas’ jury trial commenced on September 15,

1997, with Patrolmen Cook and Lopossa summarizing

the testimony they had given at the suppression

hearing, detailing the events and circumstances

leading to Mancillas’ arrest. Chuckie Hardman and

James Marshall, the men arrested with Mancillas

in the early morning hours of December 17, 1996,

also testified on behalf of the government, as

did Jack Kirk (an acquaintance of Mancillas), as

well as DEA Special Agent Thomas Casey.

Hardman testified that he met Mancillas for the

first time on December 16, 1996, the day before

Mancillas was arrested by Officer Cook. On the

evening of December 16, Hardman was at the Club

when Mancillas arrived, and while the two men

enjoyed a beer together, Hardman told Mancillas

that he was attempting to sell a Raven Arms .25

caliber handgun. The two men, along with James

Marshall, walked outside the Club and entered

Mancillas’ Mercedes. Hardman displayed the Raven

Arms handgun to Mancillas but, according to

Hardman’s testimony, Mancillas did not seem

particularly interested in buying it. While the

men were discussing whether there was potential

for a sale of the Raven Arms handgun, three

unknown individuals approached the passenger side

of the vehicle and at this time, Hardman

testified, Mancillas reached underneath his car

seat, grabbed the chrome Taurus handgun, and

placed it on his lap. According to Hardman, at

that time Mancillas rolled down the passenger

window, exposing the Taurus handgun to the three

men outside his vehicle, and asked if they "had

a problem." The men answered "no problem" and

walked away, and according to Hardman, Mancillas

then placed the Taurus handgun on the dashboard.

Two or three minutes later Officer Cook arrived.

Hardman further testified that while he was in

the vehicle, he never observed any drugs or drug

paraphernalia, nor did anyone attempt to sell him

any drugs, but he did recall seeing Marshall and

Mancillas exchange a plastic baggie while they

sat in the Mercedes, though he was not sure who

handed the baggie to whom. Hardman also

contradicted Officer Cook’s testimony that

Mancillas simply handed his car keys to the

officer when asked to do so. Hardman explained

that after Cook arrived and directed the men to

place their hands on their vehicle, Mancillas was

required to empty his pockets and lay the

contents on the car, at which time Officer Cook

acquired the keys to the Defendant’s car.

James Marshall’s recollection of events on the

night of the arrests was somewhat different.

Marshall testified that when he first observed

Mancillas, Hardman, and Hardman’s girlfriend,

they were sitting in Mancillas’ Mercedes, smoking

something. Everyone went inside the Club, but

later that evening Marshall, Hardman, and

Mancillas walked outside to the Mercedes.

Marshall stated that while the three of them were

sitting in the vehicle, Mancillas gave Marshall

an undisclosed amount of cocaine wrapped in a

baggie and told him to deliver it to a woman

inside the Club, and subsequently this cocaine

was found on Marshall at the time of his arrest.

Marshall also stated that earlier in December

1996, Mancillas had directed him to fly to

Brownsville, Texas, to pick up two suitcases of

marijuana (approximately forty-eight pounds), and

transport it to Indianapolis on a commercial

airline. Mancillas paid for Marshall’s plane

ticket, and after he returned, Mancillas ordered

him to transport one of the marijuana-filled

suitcases to an unidentified person’s home and to

deliver the other marijuana suitcase to

Mancillas’ garage. When Marshall arrived at

Mancillas’ home with the marijuana, Marshall

witnessed Mancillas and his cohort "Lefty"

repackage the drugs into ziplock bags presumably

for sale in smaller quantities. Marshall

testified that he believed a portion of the

marijuana ended up in the trunk of Mancillas’

car, and was discovered when the men were

arrested at the Club on December 17, 1996.

Finally, Marshall testified that following the

arrests, Mancillas made contact with him by

telephone and by letter while he was in prison.

In each of the communications, Mancillas

requested Marshall to give false testimony to the

IPD and to claim that he (Marshall) possessed the

Taurus .40 caliber handgun on the night of the

arrests.

Jack Kirk, an acquaintance of Mancillas, was

another trial witness. Kirk testified that he was

the owner of the Taurus handgun, and that

Mancillas had asked to borrow the gun on the

night of his arrest. Kirk further stated that

Mancillas told him he wanted to borrow the gun

because "[h]e was going to a neighborhood where

Hispanics [were not] especially liked[,]" and

Kirk admitted that he loaned the gun to

Mancillas. Kirk further testified that following

Mancillas’ arrest, Mancillas asked him to falsely

inform the IPD that Kirk had borrowed Mancillas’

Mercedes and that he (Kirk) had accidentally left

the Taurus handgun inside the vehicle.

The government’s final trial witness was Special

Agent Thomas J. Casey of the Drug Enforcement

Administration ("DEA"). On direct examination,

Casey began by recounting his career as a drug

enforcement officer and recited his

qualifications as an expert witness in the drug

trafficking business. He described the "tools of

the drug trade," and explained that plastic

baggies, scales, pagers, guns, and money are the

primary instruments of a drug enterprise.

Specifically, he stated that drug traffickers

often carry weapons for protection against other

individuals who may seek to separate the

trafficker from his stash, and also "for

protection against the police when [they] come in

to arrest you or serve a search warrant"-- in

other words, guns are used to resist officers

attempting to serve warrants or make an arrest.

Casey also testified about the definition of a

"source city" in the drug trade, and explained it

as a city where illegal drugs originate before

being transported to other American cities.

Following this general background testimony

regarding the drug trade, the AUSA asked Casey to

respond to a hypothetical question and he asked

Casey to presume that officers found in a vehicle

over 400 grams of marijuana and various drug-

related paraphernalia including scales, plastic

baggies, guns, two pagers, a cellular telephone,

and $2440 in currency. The AUSA then asked

"[k]nowing these factors, could you give us an

opinion as to whether that marijuana was being

held for distribution or for personal

consumption?" Mancillas’ counsel objected,

arguing that the anticipated questioning should

not be directed at the issue of Mancillas’ guilt

or innocence with respect to his intent to

distribute the illegal drugs. The judge overruled

Mancillas’ objection. Agent Casey proceeded to

testify that based on the facts presented by the

AUSA, "[m]y opinion is it’s for distribution." On

cross-examination, Casey further testified that

based on his experience, any amount of marijuana

exceeding one-quarter of a pound would be held

for distribution rather than personal

consumption.

On September 18, 1997, following the three-day

trial, the jury convicted Mancillas of three of

the five counts charged in the Indictment: Count

One (felon in possession of a firearm); Count

Three (possession of marijuana with intent to

distribute); and Count Five (knowingly carrying

a firearm while in possession of marijuana with

intent to distribute). The jury was unable to

reach a verdict on Counts Two and Four (cocaine

possession charges), and those counts were

dismissed by the court upon motion of the

government.

On December 17, 1997, Mancillas was sentenced

to a 180-month term of imprisonment and a three-

year term of supervised release, and ordered to

pay an assessment of $300. The trial judge made

clear that she believed Kirk’s testimony that

Mancillas asked Kirk to testify falsely and tell

the IPD that Kirk had borrowed Mancillas’

Mercedes and accidentally left the Taurus handgun

in the vehicle. The judge further found that

Mancillas’ attempts to persuade Kirk to fabricate

a story to avoid punishment for carrying the gun

constituted obstruction of justice, and gave

Mancillas a two-level enhancement on each of

Counts One and Three.

Mancillas asked the court to grant him a two-

level downward departure for acceptance of

responsibility, contending that because he had

admitted to Officer Cook that the Taurus handgun

belonged to him, and prior to trial had also

admitted to owning the 420 grams of marijuana

found in his trunk, he was entitled to the

reduction. The judge denied the Defendant’s

request, finding that Mancillas admitted

ownership of the marijuana in a proffer he made

to the government under a letter of immunity, and

because the admission was made in this protected

setting, it did not reduce the government’s

obligation to prove up each and every element of

the case against Mancillas at trial. Moreover,

the court also found that "these concessions . .

. were not enough . . . to constitute an

acceptance of responsibility."

After factoring in the enhancement for

obstruction of justice, Mancillas’ adjusted

offense level on Count Three was 28, and the

total offense level upon which the judge based

the sentence was 28. Mancillas’ criminal history

category was IV. Based on these factors, the

guidelines recommend a term of imprisonment

ranging from 110-137 months on Counts One and

Three, plus 60 months mandatory for Count Five

(knowingly carrying a firearm while in possession

of marijuana with intent to distribute), as well

as 2-3 years of supervised release. Based on

these factors, the judge sentenced Mancillas as

follows: Count One, 120 months in prison; Count

Three, 60 months in prison to be served

concurrent to the sentence imposed on Count One;

and Count Five, 60 months in prison to be served

consecutive to the sentences imposed on Counts

One and Three. In addition to the total 180-month

term of imprisonment, the court sentenced the

Defendant to a term of three years supervised

release, and ordered that he pay an assessment of

$300. Mancillas appeals.

ISSUES

Whether the district court:

(1) improperly denied Mancillas’ written motion

to suppress physical evidence seized from his

Mercedes on the night of the arrest after finding

that the original stop and detention of the

Defendant, as well as the subsequent search of

his vehicle, were constitutionally permissible;

(2) incorrectly denied the Defendant’s oral

motion to suppress statements he made to Officer

Cook on the night of his arrest;

(3) abused its discretion when it permitted

DEA Agent Casey to offer an expert opinion on

whether, under the circumstances of the AUSA’s

hypothetical, Casey believed that marijuana was

being used for distribution rather than personal

consumption;

(4) gave an erroneous jury instruction on

Count Five, the charge of "knowingly carrying a

firearm during and in relation to a drug

trafficking offense"; or

(5) erred in enhancing Mancillas’ sentence for

obstruction of justice under USSG sec. 3C1.1 and

denying a downward departure for acceptance of

responsibility under USSG sec. 3E1.1.

DISCUSSION

I. Did the court improperly deny Mancillas’

written motion to suppress physical evidence

seized on the night of the arrest?

The Defendant argues that Patrolman Cook’s stop

of Mancillas and subsequent search of his vehicle

infringed upon his Fourth Amendment rights

against unreasonable searches and seizures, in

that Cook lacked a "reasonable suspicion" to

perform an investigatory stop upon Mancillas,

Hardman, and Marshall after they exited the

Mercedes. Despite all the facts and circumstances

therein present, the Defendant further argues

that the officers’ subsequent search of the

interior and trunk of the Mercedes, and attendant

seizure of drug paraphernalia and firearms,

constituted an impermissible search and seizure.

The Defendant’s argument continues and concludes

that the district court’s denial of his written

motion to suppress the physical evidence found in

his vehicle--the guns, the crack pipes, the

cocaine, the marijuana, the screens, etc.--was

improper.

The determinations of reasonable suspicion and

probable cause to search or seize are reviewed de

novo. See Ornelas v. United States, 517 U.S. 690,

697 (1996); United States v. Walden, 146 F.3d

487, 490 (7th Cir. 1998). Factual findings are

reviewed for clear error, see Walden, 146 F.3d at

490, and this Court will not substitute its

judgment for that of the district court if there

is support in the record for the trial court’s

findings of fact. See United States v. Marshall,

79 F.3d 68, 69 (7th Cir. 1996).

A. The Investigatory Stop of Mancillas.

Initially, we address whether Officer Cook’s

initial stop and temporary detention of

Mancillas, which occurred after the Defendant and

his companions exited their car and were walking

away, falls within the permissible parameters of

the Fourth Amendment. After Cook arrived on the

scene and the suspects exited the car each

walking in different directions, Patrolman Cook

commanded the Defendant-Appellant to stop and

return to his vehicle. Initially, we note that

the officer’s order to stop constitutes a

"seizure" for Fourth Amendment purposes, for

"whenever a police officer accosts an individual

and restrains his freedom to walk away, he has

’seized’ that person." Terry, 392 U.S. at 16. But

"what the Constitution forbids is not all

searches and seizures, but unreasonable searches

and seizures." Elkins v. United States, 364 U.S.

206, 222 (1960).

Two categories of seizure implicate the Fourth

Amendment: an investigative stop and an arrest.

See United States v. Adebayo, 985 F.2d 1333, 1337

(7th Cir. 1993); United States v. Withers, 972

F.2d 837, 841 (7th Cir. 1992). Investigative

stops (referred to as Terry stops) are by their

very nature brief, and allow "police officers the

chance to verify suspicions that the person has

been, is, or is about to engage in criminal

activity." United States v. Griffin, 150 F.3d

778, 783 (7th Cir. 1998) (citing United States v.

Rivers, 121 F.3d 1043, 1045 (7th Cir. 1997)). In

Terry, the Supreme Court explained that officers

have authority

[to conduct] a reasonable search for weapons for

the protection of the police officer, where he

has reason to believe that he is dealing with an

armed and dangerous individual, regardless of

whether he has probable cause to arrest the

individual for a crime. The officer need not be

absolutely certain that the individual is armed;

the issue is whether a reasonably prudent man in

the circumstances would be warranted in the

belief that his safety or that of others was in

danger. And in determining whether the officer

acted reasonably in such circumstances, due

weight must be given, not to his inchoate and

unparticularized suspicion or "hunch," but to the

specific reasonable inferences which he is

entitled to draw from the facts in light of his

experience.

Terry, 392 U.S. at 27 (citations omitted).

Thus, a law enforcement officer may stop an

individual if "specific and articulable facts

which, taken together with rational inferences

from those facts, reasonably warrant that

intrusion," id. at 21, and support a reasonable

suspicion that "criminal activity may be afoot."

Id. at 30. Reasonable suspicion requires less

than the quantum of proof constituting probable

cause. See id. at 21-22; Sokolow, 490 U.S. at 7

(citation omitted); Terry, 392 U.S. at 21-22.

In making this assessment, "it is imperative

that the facts be judged against an objective

standard: would the facts available to the

officer at the moment of the seizure or the

search ’warrant a man of reasonable caution in

the belief’ that the action taken was

appropriate?" Terry, 392 U.S. at 21-22; see also

Griffin, 150 F.3d at 783. In order to determine

whether reasonable suspicion existed, we examine

"the totality of the circumstances--the whole

picture[.]" United States v. Cortez, 449 U.S.

411, 417 (1981) (emphasis added). We bear in mind

that "[t]he process does not deal with hard

certainties, but with probabilities." Id. at 418.

The real issue "is whether the police conduct--

given their suspicions and the surrounding

circumstances--was reasonable." United States v.

Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994)

(citing Terry, 392 U.S. at 19-20).

Thus, applying the totality of circumstances

test, we must determine whether Officer Cook had

reasonable suspicion to stop and momentarily

detain Mancillas in the early morning hours of

December 17, 1996. Mancillas argues that it is

"critical" that "the [radio] dispatch did not

describe, and Cook did not observe, any definite

wrongdoing in progress." He contends that a radio

call which fails to describe wrongdoing in

progress does not rise to the level of providing

police officers with reasonable suspicion that

criminal conduct has occurred, was occurring or

was about to occur, and consequently, Cook lacked

reasonable suspicion to believe that criminal

activity was afoot. Mancillas relies on two

cases, United States v. Packer, 15 F.3d 654 (7th

Cir. 1994), and United States v. DeBerry, 76 F.3d

884 (7th Cir. 1996), in support of his position

that the radio dispatch did not provide Cook the

requisite degree of reasonable suspicion to make

the stop.

In Packer, police responded to a citizen’s

telephone call reporting a "suspicious vehicle,"

described by the citizen as a yellow Cadillac

with four black male occupants, parked alongside

a residential street at one o’clock in the

morning. Packer, 15 F.3d at 655. Three police, in

two police vehicles, arrived on the residential

street just moments later, and found what they

described as a "greenish" Cadillac with fogged

over windows. See id. Two officers in a police

van parked their vehicle behind the yellow-green

Cadillac and activated their "take down lights,"

while the third officer pulled his police cruiser

in front of the Cadillac to prevent it from

leaving. The three officers approached the

Cadillac, and as one of the occupants exited

through a rear door of the car, an officer saw a

dark, pipe-shaped object protruding approximately

two inches from the suspect’s knee-length coat.

See id. at 655-56. The officers believed the

object was a gun, and one officer reached into

the man’s coat and grabbed the object. See id. at

656. Thereafter, the individual previously in

possession of the gun--Packer--was charged with

being a felon in possession of a firearm in

violation of 18 U.S.C. sec. 922(g)(1).

Defendant Packer moved to suppress evidence of

the firearm arguing that the investigatory stop

violated his Fourth Amendment rights because the

officers lacked a "reasonable and articulable

suspicion" that criminal activity was afoot as

required by Terry, 392 U.S. 1. The district court

denied the motion to suppress, finding that the

citizen’s report, the lateness of the hour, and

the fogged car windows provided the officers with

sufficient justification to make the initial

stop. See Packer, 15 F.3d at 656. We reversed,

holding that even though the citizen’s report

described the Cadillac and its location, the mere

fact that "four men [were] sitting together in a

parked car at the wee hours of the morning" did

not constitute sufficient grounds for a

"reasonable and articulable suspicion" to believe

that criminal activity was afoot. Id. at 658-59.

As a result, we reversed the Defendant’s

conviction because the evidence seized during the

encounter should have been suppressed. See id. at

659. Mancillas argues that his case is similar to

Packer, and thus Officer Cook lacked a reasonable

suspicion to stop him. We disagree.

While Packer is marginally instructive, the

facts in that case are distinguishable from the

case sub judice, and thus Packer falls short of

governing our determination. In Mancillas’ case,

Patrolman Cook received a 1:35 a.m. radio

dispatch reporting that a Hispanic male had just

been observed holding a gun while sitting inside

a blue Mercedes in the parking lot of the "Hot’s

Show Club" at 1:30 a.m. Cook pulled into the Club

parking lot and a number of the details which had

been relayed in the radio dispatch were

immediately corroborated. That is, Cook observed

a dark blue Mercedes in the Club’s parking lot,

and three men--including one of Hispanic origin--

exited the car. In addition, two suspicious facts

emerged: first, it was certainly unusual to

observe three men sitting in a vehicle in a

nightclub parking lot in the middle of a wintry,

snowy, blustery night at 1:30 a.m.; second, the

three occupants of the car exited as soon as

Officer Cook arrived in his squad car and focused

his spotlight on the Defendant’s vehicle, and at

this time each of them proceeded to walk in

different directions probably in an attempt to

avoid contact with the police and to make it more

difficult for one officer to apprehend the three

of them, with only one of the men (Hardman)

walking toward the Club.

Unlike the radio dispatch in Mancillas’ case,

the citizen’s call in Packer simply reported four

men sitting in a car parked in a residential area

late at night, and made no mention whatsoever of

weapons. In Mancillas’ case, the dispatcher

reported a Hispanic male with a firearm in his

hand, sitting in his Mercedes parked in a

nightclub parking lot at 1:30 a.m. on a cold,

snowy night. In addition, the four occupants of

the Cadillac in Packer did not engage in any sort

of elusive or unusual behavior upon arrival of

the police--they simply sat in their car. In the

instant case, however, as soon as Officer Cook

arrived on the scene, and prior to any

questioning by the police, Mancillas and his

cohorts quickly exited the vehicle and each

walked in different directions.

The fact that the citizen’s report noted that

an individual (later identified as Mancillas)

possessed a firearm, as well as the suspicious

behavior (walking in different directions)

exhibited by the suspects when Patrolman Cook

arrived at the Club, added to the officer’s

reasonable suspicion. See United States v.

Duguay, 93 F.3d 346, 351 (7th Cir. 1996)

(reasonableness of police officer’s suspicions is

buttressed by suspect’s elusive behavior in

turning off road in order to avoid police

roadblock); United States v. Lyles, 946 F.2d 78,

80 (8th Cir. 1991) (investigatory stop lawful in

part because vehicle occupants acted suspiciously

while attempting to drive away). We are persuaded

that the presence of a weapon, combined with the

suspicious actions of the three suspects in

response to Officer Cook’s arrival on the scene,

and the time of night and weather conditions,

distinguish this case from Packer, and Mancillas’

argument that Packer governs our result here is

unavailing.

Mancillas also relies upon DeBerry, 76 F.3d at

884, which he claims supports his position that

"a report of an unnamed individual with a gun

does not provide law enforcement officials with

the requisite reasonable and articulable

suspicion of criminal conduct to conduct a Terry

stop." We do not agree that DeBerry helps

Mancillas; in fact, we are convinced that DeBerry

actually undermines Mancillas’ position.

In DeBerry, an officer on afternoon patrol duty

received a message from his dispatcher conveying

an anonymous tip that a black man in tan shorts

and a tan shirt had a gun in his waistband and

was standing on a city street corner. See id. at

885. The officer drove to the location and found

a man matching the tipster’s description, but no

gun was visible. See id. According to the

officer, the man--DeBerry--took several steps

backward, turned slightly to the side, and moved

his hands as if he might be about to draw a gun.

See id. The officer drew his revolver and ordered

DeBerry to place his hands on the hood of the

police car. DeBerry complied, and the officer

returned his gun to its holster. A backup officer

arrived within two minutes, patted down the

suspect, found the gun, and arrested him. See id.

DeBerry was charged with being a felon in

possession of a firearm in violation of 18 U.S.C.

sec. 922(g)(1) and filed a motion to suppress the

gun, claiming that the officer lacked probable

cause to arrest him until he found the gun, and

therefore the seizure of the gun violated the

Fourth Amendment. See id. The district court

denied the motion to suppress evidence of the

gun.

We affirmed, holding that when officers receive

an anonymous tip accurately describing an

individual and alleging that the individual is

armed, even "weak[ ] corroborat[ion]" entitles

police to stop the person and search the

individual for a gun. Id. at 886. In Mancillas’

case, the dispatch received by Officer Cook was

corroborated (as explained above), and the other

suspicious circumstances, including the time of

night, the prevailing weather conditions, and the

suspects’ decision to exit the vehicle and walk

off in different directions, all provided Officer

Cook with even more reasonable suspicion to stop

Mancillas. As we stated in DeBerry, "[a]rmed

people are so dangerous to the peace of the

community that the police should not be forbidden

to follow up a tip that a person is armed, and as

a realistic matter this will require a stop in

all cases." Id.

In this case, Officer Cook received a police

dispatch stating that a Hispanic male seated in

a blue Mercedes had a gun at the Hot’s Show Club

parking lot. Upon Cook’s arrival at the parking

lot, he observed three males quickly exit their

car and the details contained in the radio

dispatch (a Hispanic male in a blue Mercedes in

Club’s lot with a gun) were confirmed. Then, the

three companions behaved suspiciously by each

walking off in a different direction at 1:30 a.m.

on a cold, wintry night. We are convinced that

the combination of all of these factors gave Cook

a "reasonable and articulable suspicion" to

believe that "criminal activity may [have been]

afoot[,]" Terry, 392 U.S. at 30, and that

Mancillas’ actions warranted further

investigation. Thus, we hold that Officer Cook’s

actions in stopping Mancillas and his companions

from leaving the scene were constitutionally

permissible.

B. The Officers’ Search of the Interior and

Trunk of the Mercedes.

After determining that Officer Cook’s Terry stop

was justified, the district court found that

Officers Cook’s and Lopossa’s subsequent search

of the interior and trunk of the vehicle

satisfied Fourth Amendment standards since Cook

observed the handgun in plain view on the

dashboard of the vehicle and thus had probable

cause to search the interior and trunk of the

Mercedes, and the court further found that

Mancillas consented to the search when he

relinquished his car keys. We agree with the

district court’s conclusion that the search fell

within the parameters of the Fourth Amendment.

In Michigan v. Long, 463 U.S. 1032 (1983), the

United States Supreme Court faced a similar

question regarding the constitutionality of a

search of the passenger compartment of an

automobile after officers viewed a weapon in the

front seat. In Long, two deputies were on patrol

in a rural area at midnight when they observed a

car traveling erratically and at an excessive

speed. See id. at 1035. The vehicle swerved into

a ditch, and the deputies stopped to investigate.

The driver and sole occupant of the car, Mr.

Long, met the deputies at the rear of the car,

leaving the driver’s door open. See id. at 1035-

36. After a deputy asked on three occasions to

see Long’s operator’s license, Long turned from

the officers and began walking toward the open

door of the vehicle. See id. at 1036. The

officers followed Long and both observed a large

hunting knife on the floorboard of the driver’s

side of the car. Upon noticing the weapon, the

officers stopped Long’s progress and conducted a

protective patdown which revealed no weapons on

his person. See id.

One of the deputies shined his flashlight into

the interior of the vehicle to search for other

weapons, but he did not actually enter the car.

The officer noticed that something was protruding

from under the armrest on the front seat, so he

knelt in the vehicle and lifted the armrest. See

id. Underneath the armrest, the deputy noticed an

open pouch sitting on the front seat, and upon

flashing his light on the pouch, determined that

it contained marijuana. At that time, Long was

arrested for possession of marijuana. See id. The

officers searched the trunk and discovered

approximately seventy-five pounds of marijuana

inside. Long filed a motion to suppress the

marijuana taken from the car and the trunk. See

id. The trial judge denied his motion, and he was

convicted of possession of marijuana.

On review, the Supreme Court considered "the

authority of a police officer to protect himself

by conducting a Terry-type search of the

passenger compartment of a motor vehicle during

the lawful investigatory stop of the occupant of

the vehicle." See id. at 1037. In upholding the

constitutionality of the search, the Court

recognized that:

protection of police and others can justify

protective searches when police have a reasonable

belief that the suspect poses a danger . . . and

that danger may arise from the possible presence

of weapons in the area surrounding a suspect.

These principles compel our conclusion that the

search of a passenger compartment of an

automobile, limited to those areas in which a

weapon may be placed or hidden, is permissible .

. . if "specific and articulable facts which,

taken together with the rational inferences from

those facts, reasonably warrant" the officers in

believing that the suspect is dangerous and the

suspect may gain immediate control of weapons.

Id. at 1049 (quoting Terry, 392 U.S. at 21).

In reaching this result, the Court relied on New

York v. Belton, 453 U.S. 454, 460 (1981), wherein

the Court held that "articles inside the

relatively narrow compass of the passenger

compartment of an automobile are in fact

generally, even if not inevitably, within ’the

area into which an arrestee might reach in order

to grab a weapon’ . . . ." Id. (quoting Chimel v.

California, 395 U.S. 752, 763 (1969)).

Considering the totality of circumstances facing

Patrolmen Cook and Lopossa at the time of and

immediately prior to Mancillas’ arrest, we hold

that the officers certainly had reason to have a

reasonable fear for their safety and were within

their authority to conduct a search of the

parties and the vehicle. The police officers had

information that a Hispanic male seated in a car

parked in a nightclub parking lot was observed

with a revolver in his hand; when Officer Cook

arrived, there was a gun sitting in plain view on

the dashboard of the Mercedes from which a

Hispanic male had just exited; the suspects

exited the vehicle and proceeded in different

directions obviously attempting to evade contact

with police; and Mancillas and the other

occupants initially denied that they had a gun in

spite of the fact that a gun could be seen on the

dashboard of the vehicle in plain view

immediately in front of the steering wheel on the

driver’s side which Mancillas had just exited.

Under Michigan v. Long and its progeny, the

dashboard of Mancillas’ Mercedes fell within "the

area into which an arrestee might reach in order

to grab a weapon . . .," Chimel, 395 U.S. at 763,

and thus the search was constitutional.

This Circuit’s decisions also support the

constitutionality of the search performed in this

case. In United States v. Holifield, 956 F.2d 665

(7th Cir. 1992), an individual who was stopped by

police for speeding exited his vehicle and

approached the police officers’ unmarked car in

a boisterous and aggressive manner. He agreed to

cooperate in a search of his person and

voluntarily produced his driver’s license. See

id. at 666. After a patdown search revealed no

weapons, the officers looked through the car’s

tinted windows, observed two passengers seated in

the vehicle, and asked them to exit the car; the

passengers were frisked but were found not to be

carrying weapons. See id. Because it was normal

procedure to allow persons to wait in their car

while writing a citation, one officer proceeded

to search the car interior, removed the keys from

the car’s ignition, unlocked the glove

compartment, and discovered a pistol. See id. at

667. The Defendant admitted ownership of the gun

and was arrested and indicted on three federal

offenses relating to the illegal possession of a

firearm. See id. at 667-68. The Defendant filed

a motion to suppress evidence of the gun, arguing

that the officers’ search was unlawful. See id.

at 666.

The district court denied the motion to

suppress, and we affirmed, reasoning that "the

absence of weapons on the [defendant], and the

fact that there was no further aggressive

behavior did not, as a matter of law, make

continuing apprehension of danger unreasonable."

Id. at 668. We disagreed with the Defendant’s

argument that it was unreasonable to search the

locked glove compartment, noting that once the

occupants returned to the car, "it would have

taken only a few seconds for Holifield or one of

his passengers to remove the keys from the

ignition and unlock the glove compartment, thus

giving them immediate access to the pistol." Id.

at 668-69. Finally, we observed that "the Supreme

Court has rejected the reasoning that because the

occupants have exited the vehicle and are under

the control of officers, the officers could not

reasonably believe that they could gain immediate

control of a weapon located inside the vehicle."

Id. at 669 (citing Long, 463 U.S. at 1051).

This Court applied similar reasoning to uphold

a protective search in United States v. Brown,

133 F.3d 993 (7th Cir. 1998), cert. denied, 118

S. Ct. 1824 (1998). In Brown, police officers

stopped two persons suspected of prowling late at

night in a high-crime neighborhood. See id. at

995. After the suspects were removed from their

car, an officer scanned the interior of the

vehicle with his flashlight and observed a "shiny

chrome object" protruding from a black bag and

believed it might be a weapon. Id. The officer

opened the bag, and found the chrome object to be

a .44 Magnum with a scope attached to the top.

The Defendant was indicted and moved to exclude

from evidence his possession of the .44 Magnum.

See id. at 994-95. The district court admitted

the evidence and the Defendant was convicted of

three federal offenses relating to his possession

of firearms. The Defendant appealed alleging that

the search of the bag and seizure of the gun were

unconstitutional. See id.

We affirmed, holding that the defendant "was

not so far from the car that he could not lunge

for a gun inside it, or in the words of the

Supreme Court in Michigan v. Long, not so far

that he could not have gained ’immediate control

of weapons.’ 463 U.S. at 1049." Id. at 998. We

further held that when the officer observed the

shiny chrome object, "the danger posed by the

encounter multiplied exponentially," and the

officer "had no reasonable choice other than to

open the bag." Id. at 999. We further concluded

that "[t]he fear generated from the ’risk of re-

entry’ is a reasonable one . . . ." Id. at 998

(citing Holifield, 956 F.2d at 668-69).

In the instant case, the following facts bear

upon our determination dealing with the question

of whether Cook had reasonable suspicion to make

the Terry stop and protective search in light of

his concerns for his safety. Initially, we note

that after Officer Cook had directed the suspects

to place their hands on the hood of the Mercedes,

Cook looked into the car and confirmed that a

revolver was on the dashboard of the automobile.

In addition, the police radio dispatch reported

that a Hispanic male was holding a gun while

seated in a blue Mercedes in the Hot’s Show Club

parking lot, and when Cook arrived, the details

relayed in the dispatch were confirmed because

Mancillas, a Hispanic male, was found exiting the

blue Mercedes and Cook reasonably could have

believed that Mancillas was carrying the gun

mentioned in the dispatch. Further, when Cook

first detained the three individuals, he was the

only officer on the scene and feared that when

they walked in different directions they would

surround him "in some type of triangulation."

Under the totality of the circumstances, and in

light of Supreme Court and Seventh Circuit

precedent, we are convinced that the officers

were entitled to search the interior of the car

to ensure their own safety, and the search was

within the confines of the Fourth Amendment.

Because both the investigatory stop and the

subsequent search of the Mercedes were

constitutionally permissible within the

parameters of the Fourth Amendment, we hold that

the district court’s denial of Mancillas’ motion

to suppress the physical evidence seized on the

night of his arrest was proper.

II. Whether the trial judge abused her discretion

when she denied Mancillas’ oral motion to

suppress statements Mancillas made to Officer

Cook on the night of his arrest.

Mancillas next contends that statements he made

to Officer Cook should have been suppressed at

trial because Cook failed to advise Mancillas of

his Miranda rights prior to the time Mancillas

made the statements. We review de novo the

district court’s determination that the

statements were admissible. See United States v.

James, 113 F.3d 721, 727 (7th Cir. 1997); United

States v. Yusuff, 96 F.3d 982, 988 (7th Cir.

1996). Any "historical" facts and credibility

determinations are reviewed deferentially under

the clear error standard. Yusuff, 96 F.3d at 988

(citing Thompson v. Keohane, 516 U.S. 99, 111

(1995), and Ornelas, 517 U.S. at 699).

The statements admitted at trial of which

Mancillas complains are: three responses of "no"

to Officer Cook’s question (asked three times)

"who had a gun"; his admission that there was a

gun in the car; and his later admission that he

lacked a permit for the gun. Officer Cook

posed the questions regarding (1) "who had a gun"

and (2) whether there was a gun in the car after

stopping the three men and directing them to

return to the vehicle with their hands on the

hood of the car. At the time these questions were

asked, Cook had arrived on the scene and waited

approximately one minute for Lopossa to arrive

and also had spotted the Taurus handgun on the

dashboard. In addition, Officer Lopossa had

finished the patdown search of the suspects,

which took approximately another minute or so,

and Patrolman Cook had returned his service

revolver to its holster and walked ten feet to

the Mercedes. Mancillas responded to the

questions as stated previously.

Cook attempted to open the car door, requested

Mancillas’ keys, received the keys, and opened

the door. Cook inspected the Taurus handgun and

observed drug paraphernalia lying in plain view

on the console. Also at this time, Lopossa

entered the car and discovered a second gun as

well as the drug paraphernalia. Cook testified

that at this time, "everyone [was] effectively

under arrest" for possession of paraphernalia and

controlled substances. Cook proceeded to ask

whether any of the companions possessed a permit

for the handgun, and Mancillas responded, "No."

It is undisputed that neither Officer Cook nor

any other officer present at the Club’s parking

lot advised Mancillas of his Miranda rights at

any time.

The court ruled that all of Mancillas’

statements dealing with the ownership of the gun

and his lack of a permit were admissible at trial

because the Defendant had waived his Miranda

objection by failing to give notice to the court

and the government that he would object to their

admission, and by failing to actually make any

objection in a timely and complete fashion prior

to the suppression hearing (as noted, Mancillas

failed to object until the Friday before Monday,

in effect the day before trial, even though a

court order required him to file motions to

suppress months earlier). Alternatively, the

court found that the statements "were made prior

to [the Defendant’s] being placed under arrest."

Mancillas argues that he preserved his Miranda

objection and that he was the subject of a

"custodial interrogation" when he made the

statements, thus the officers’ failure to give

Miranda warnings made his statements

inadmissible.

Initially, we address whether Mancillas waived

his Fifth Amendment objection. On May 29, 1997,

the district court issued an order setting forth

the case schedule, setting the trial for July 21,

1997, and advising the parties that "all MOTIONS

of the parties contemplated by the Federal Rules

of Criminal Procedure shall be filed within 15

days after [the] appearance by the attorney for

the Defendant." On June 4, 1997, the Defendant,

represented by appointed counsel, made his

initial appearance. On June 20, 1997, Mancillas

filed a written motion to suppress the physical

evidence seized (guns, drugs, etc.) on the

grounds that the search and seizure of his car

violated his Fourth Amendment rights. In this

motion, the Defendant failed to seek exclusion,

under Miranda or any other theory, of the

statements he made at the time of his arrest.

Thereafter, on two other occasions, Mancillas

moved for a continuance of the suppression

hearing and trial dates, and the court granted

both motions and reset the dates two separate

times. The suppression hearing was rescheduled

for Friday, September 12, 1997; the trial was set

to begin three days later, on Monday, September

15, 1997. On the day of the suppression hearing,

the Defendant filed a "Supplemental Memorandum"

in support of his motion to suppress, which set

forth his Fourth Amendment arguments to suppress

physical evidence. Like the Defendant’s original

motion, the supplemental memorandum failed to

refer to any Fifth Amendment issues or to any

objections regarding the admission at trial of

Mancillas’ statements.

Nevertheless, approximately two-thirds of the

way through the suppression hearing, defense

counsel for the first time objected, pursuant to

the Fifth Amendment and Miranda, to the admission

of any of Mancillas’ statements made in violation

of Miranda. The transcript reads as follows:

COURT: [A]re you seeking to suppress statements?

COUNSEL: I have not decided yet, Your Honor. I

will know by early afternoon.

COURT: The Court is going to rule promptly, so you

may have waived your right to that by not giving

the Court sufficient notice.

COUNSEL: We would like to suppress any statements

made by Mr. Mancillas that were not in accordance

with his Miranda.

COURT: That’s just what I’m saying, you may have

waived that.

COUNSEL: I understand.

Later during the hearing, the trial judge ruled

that Mancillas had indeed waived his Fifth

Amendment objections because he failed "to

provide notice of any intention to suppress

evidence under the Fifth Amendment, and so that

claim, if it ever was intended to be asserted,

has been waived . . . ."

Federal Rule of Criminal Procedure 12(b)

requires that motions to suppress evidence be

raised prior to trial. See United States v.

Krankel, 164 F.3d 1046, 1051 (7th Cir. 1998). The

court may, however, set a time for the making of

pretrial motions. See Fed. R. Crim. P. 12(c).

"Failure by a party to raise defenses or

objections . . . which must be made prior to

trial [or] at the time set by the court pursuant

to subdivision (c) . . . shall constitute waiver

. . . ." Fed. R. Crim. P. 12(f). Moreover, a

defendant who fails to file a motion to suppress

evidence in the trial court waives his right to

appellate review of the issue. See Krankel, 164

F.3d at 1051 (citing United States v. Smith, 80

F.3d 215, 218 (7th Cir. 1996)).

The Defendant argues that there was no waiver,

and thus we should review his Fifth Amendment and

Miranda arguments on the merits. We disagree. The

case sub judice is similar to United States v.

Hamm, 786 F.2d 804, 806 (7th Cir. 1986), wherein

the court issued an "Order for Pretrial Discovery

and Inspection direct[ing] that motions be filed

within fifteen (15) days of the arraignment." Id.

The Defendant failed to file the motion within

the allowable fifteen day period, and thereafter

moved to suppress a co-defendant’s statements

under Miranda pursuant to the Fifth Amendment.

See id. The court denied the motion ruling that

it was untimely filed, and we affirmed. See id.

Similarly, in United States v. Knezek, 964 F.2d

394, 397-99 (5th Cir. 1992), the Defendant moved

to suppress evidence after expiration of the

deadline for pretrial motions set by the court.

The trial judge ruled that the Defendant waived

his right to challenge the evidence, and the

Fifth Circuit agreed, holding that

[a] district court does not abuse its discretion

under Rule 12(f) in denying a suppression motion

solely on the grounds that the defendant failed

to comply with pretrial procedures. [The

Defendant] unquestionably failed to comply with

Rule 12 and the local rules [which permitted the

judge to set the cut-off date for pretrial

motions, including motions to suppress evidence].

Id. at 397. See also United States v. Bullock,

590 F.2d 117, 120 (5th Cir. 1979) (noting "the

district court would not have abused its

discretion under Rule 12(f) if it had denied

defendant’s various suppression motions relying

solely on defendant’s failure to comply with

pretrial procedures.")

Mancillas failed to file a motion to suppress

his statements within the mandatory fifteen day

period set by the court in its order governing

the case proceedings. Moreover, the Defendant

waited until the Friday before Monday’s trial to

raise the issue for the first time. Under these

circumstances, we agree with the court’s decision

that Mancillas waived his right to argue that his

statements were inadmissible under Miranda. As

such, the court properly admitted them.

III. Whether the district judge abused her

discretion when she permitted DEA Agent Casey to

offer an expert opinion that under the

hypothetical circumstances presented by the AUSA,

the 420 grams of marijuana was intended for

distribution rather than personal consumption.

Count Three of the Indictment, charging

Mancillas with possession with intent to

distribute marijuana, is a specific intent crime

which required the jury to find that the

Defendant possessed the marijuana and that he

intended to distribute the marijuana. See United

States v. Lewis, 110 F.3d 417, 420 (7th Cir.

1997); U.S. v. Cea, 914 F.2d 881, 887 (7th Cir.

1990). In order to establish that Mancillas

intended to distribute the 420 grams of marijuana

found in the trunk of his Mercedes, the

government called DEA Special Agent Casey as an

expert witness at trial. Casey commenced his

testimony with a recitation of his qualifications

and testified that early in his law enforcement

career he spent nine and one-half years with the

Indianapolis Police Department, including five

years in the narcotics and dangerous drugs

division. Over the course of his employment with

the IPD and the DEA, Casey was involved in excess

of 2000 controlled substance investigations.

Following his work as an officer with the IPD,

Casey accepted a position with the DEA, and just

before joining the DEA, he received specialized

training and education regarding the enforcement

of federal laws regulating controlled substances.

Casey testified that he has spent the past

nineteen years as a special agent with the DEA

and was recently promoted to a supervisory

position within that Agency.

After stating his qualifications, Casey

proceeded to describe the items that, based upon

his experience, constitute the "tools of the

trade" in the world of drug trafficking. Finally,

Casey explained what the term "source city" means

in common drug parlance, namely a city from which

drugs originate for distribution to satellite

cities.

The AUSA proceeded to question Casey as

follows: "Special Agent Casey, let me ask you

this hypothetical question concerning evidence

that’s been developed in this case outside of

your presence." Mancillas objected to the

hypothetical on the grounds that it was

impermissible for Casey to testify to the

Defendant’s guilt or innocence, and that the

prosecution should not be permitted to show Casey

the actual exhibits in the Defendant’s trial (for

instance, the photograph of marijuana with a note

bearing the notation "420 g") and then ask, "do

you think they were drug dealing[,]" because

according to the Defendant, "that invades the

province of the jury." After permitting the AUSA

to explain the hypothetical outside the presence

of the jury, the judge overruled the Defendant’s

objection finding that the hypothetical, as

framed, did not amount to the prosecutor asking

Agent Casey to state whether these particular

defendants were dealing drugs. The AUSA continued

her questioning, asking "[i]f I told you the

following facts, could you please tell me if you

have an opinion as to what may or may not have

been occurring in terms of distribution or

nondistribution on a given evening [?]" The AUSA

then proceeded to offer a "hypothetical" which

required Casey to assume the following facts:

that 400 grams of marijuana were found in a clear

plastic baggie which also contained a slip of

paper bearing the notation "420g"; that within

the vicinity of the marijuana was also found a

handgun, a scale, two pagers, a cellular phone,

and $2440 in currency, primarily in $100 bills.

The AUSA then showed Casey an exhibit picturing

the bag containing the marijuana and the note

stating "420G" found in Mancillas’ trunk, and the

following colloquy occurred:

AUSA: Knowing those factors, could you give us

an opinion as to whether that marijuana was being

held for distribution or for personal

consumption?

Casey: Yes, ma’am. I could.

AUSA: Okay. Could you tell the jury what your

opinion is?

Casey: My opinion is that it’s for

distribution.

Agent Casey further testified that based on his

extensive experience, one-half to three-quarters

of a pound of marijuana would be for distribution

because a person using this amount of marijuana

for personal consumption would have to smoke

thirty to thirty-five joints per day.

On appeal, Mancillas contends that the district

court’s decision to admit Casey’s response to the

hypothetical violated Federal Rule of Evidence

704(b), because the opinion constitutes "ultimate

issue" testimony (it is an opinion on the

"ultimate issue" of the Defendant’s intent to

distribute, an element of the crime charged). On

review, we give great deference to the district

court’s evidentiary rulings, and will reverse the

admission of Casey’s testimony "only upon a

showing that the district court committed a clear

abuse of discretion." United States v. Brown, 7

F.3d 648, 651 (7th Cir. 1993) (internal quotation

marks omitted).

Rule 704(b) states as follows:

No expert witness testifying with respect to the

mental state . . . of a defendant in a criminal

case may state an opinion or inference as to

whether the defendant did or did not have the

mental state or condition constituting an element

of the crime charged. . . . Such ultimate issues

are matters for the trier of fact alone.

Fed. R. Evid. 704(b). The parties agree, and we

have held, that Rule 704(b) applies to the expert

testimony of law enforcement officers. See, e.g.,

United States v. Willis, 61 F.3d 526 (7th Cir.

1995); United States v. Lipscomb, 14 F.3d 1236

(7th Cir. 1994); United States v. Brown, 7 F.3d

648 (7th Cir. 1993). In Lipscomb, 14 F.3d at

1242, we explained that:

[W]hen a law enforcement official states an

opinion about the criminal nature of a

defendant’s activities, such testimony should not

be excluded under Rule 704(b) as long as it is

made clear, either by the court expressly or in

the nature of the examination, that the opinion

is based on the expert’s knowledge of common

criminal practices, and not on some special

knowledge of the defendant’s mental processes.

In making this determination, a relevant factor

is the degree to which the expert witness states,

and/or specifically refers to, the intent of the

defendant, because this might conceivably suggest

that the expert’s opinion "is based on some

special knowledge of the defendant’s mental

processes." Id. at 1243.

Mancillas contends that neither the AUSA’s

direct examination or the district court judge

made it clear to the jury that Casey was not

attempting to infer that he had special knowledge

of the Defendant’s mental processes. The

government, on the other hand, responds that the

nature of the AUSA’s examination "apprise[d] the

jury that Agent Casey’s opinion was based solely

on his knowledge of common criminal practices,

rather than on any personal knowledge of

Mancillas or the circumstances of his case."

We agree with the government that the AUSA’s

examination, taken as a whole, apprised the jury

that Agent Casey’s opinion was based on his

knowledge of criminal practices generally, and

not on some special knowledge of Mancillas’

mental processes. See Fed. R. Evid. 704(b). To

begin with, prior to the hypothetical, every one

of the AUSA’s questions dealt with Casey’s

experience, training and knowledge of drug

trafficking enterprises. He testified about his

personal knowledge and experiences, about common

"tools of the trade" in the drug trafficking

business, and he distinguished between source

cities and satellite cities. Throughout the

AUSA’s direct examination, there was absolutely

no discussion of the facts involved in Mancillas’

case. In addition, as the government makes clear

in its brief, Mancillas’ name was not even

mentioned during the direct examination,

including during the hypothetical posed by the

government. And, our review of the trial

transcript reveals that Agent Casey neither

testified nor purported to have knowledge of

Mancillas’ mental processes. Furthermore, it is

interesting to note that Agent Casey never

referred to the terms "intent" or "intended," the

words directly triggering application of Rule

704(b). See Brown, 7 F.3d at 653 n.2 ("It is only

the expert’s use of the word ’intended’ that

implicates the rule.").

We conclude that Agent Casey based his opinion

on his knowledge of the drug trade rather than on

any alleged or conceived familiarity with the

working of Mancillas’ mind. See Lipscomb, 14 F.3d

at 1243. The district judge acted within her

discretion when she admitted Casey’s opinion over

Mancillas’ objection.

IV. Whether the district court’s jury instruction

on Count Five, the charge of "knowingly carrying

a firearm during and in relation to a drug

trafficking offense," was erroneous.

Mancillas next complains about the jury

instructions detailing the elements of the crime

charged in Count Five of the Indictment, which

charged that on or about December 17, 1996,

Mancillas "did knowingly carry a firearm during

and in relation to a drug trafficking crime . .

. in violation of Title 18, United States Code,

Section 924(c)(1)." We review a trial court’s

instructions to the jury with great deference.

See United States v. Kelly, 167 F.3d 1176, 1178

(7th Cir. 1999) (citation omitted). When

conducting this deferential review, we note that

more frequently than not litigants rephrase and

reframe the testimony to their benefit and take

jury instructions out of context when making

their appellate arguments. Thus, we analyze the

instructions as a whole and not piecemeal to

determine if they are accurate statements of the

law. See id.; United States v. Liporace, 133 F.3d

541, 545 (7th Cir.), cert. denied, 118 S. Ct.

1823 (1998). The instructions given by the court

must be accurate statements of the law that are

supported by the facts in the case. See United

States v. Perez, 43 F.3d 1131, 1137 (7th Cir.

1994). We consider whether the court’s jury

instructions misled the jury and whether the jury

had an understanding of the issues. See id.

(citations omitted). "As we have stated before,

instructions ’which are accurate statements of

the law and which are supported by the record

will not be disturbed on appeal.’" United States

v. Vang, 128 F.3d 1065, 1069 (7th Cir. 1997)

(citation omitted). Moreover, even an erroneous

instruction will be reversed "only if the jury’s

comprehension of the issues is so misguided that

it prejudiced the complaining party." Id.

(quoting United States v. Smith, 103 F.3d 600,

606 (7th Cir. 1996) (other quotation omitted)).

Mancillas acknowledges that Count Five of the

Indictment charged him with "knowingly carrying

a firearm during and in relation to a drug

trafficking crime" in violation of 18 U.S.C. sec.

924(c)(1), and he argues that the court’s

instructions on that count were erroneous.

Mancillas alleges that the trial court (1) gave

an erroneous definition of the phrase "during and

in relation to"; (2) erroneously defined the term

"carry"; and (3) failed to expressly instruct

that the gun must "knowingly" be carried to

warrant a conviction.

Initially, Mancillas alleges that the court’s

instructions on the meaning of the phrase "during

and in relation to" misstated the law. The

instructions stated that the phrase should be

"interpreted in accordance with its plain

meaning, which could include that the firearm

facilitated or had the potential of facilitating

the drug trafficking offense." We are of the

opinion that the instruction correctly summarizes

the state of the law as applied to the facts of

this case, thus we can summarily dispose of

Mancillas’ argument. In Wilson v. United States,

125 F.3d 1087, 1093 (7th Cir. 1997), this Circuit

held that "[i]n order for a firearm to satisfy

the ’in relation to’ prong of the offense it must

at least ’facilitat[e], or ha[ve] the potential

of facilitating’ the drug trafficking offense."

(quoting Smith v. United States, 508 U.S. 223,

238 (1993)) (other quotation omitted). Contrary

to Mancillas’ claims, and as illustrated by

Wilson, the district court’s instruction defining

"during and in relation to" was precisely in line

with the precedent of this Circuit.

Second, Mancillas contends that the court erred

when it defined "carrying" as "ha[ving] its

ordinary meaning which includes, among other

things, to ’transport’ a firearm." Mancillas’

argument rests on his notion that Bailey v.

United States, 516 U.S. 137 (1995) provides the

controlling definition of "carrying" for purposes

of sec. 924(c)(1). He claims that the Supreme

Court in Bailey "require[d] that a firearm be

actively employed in a way directly connected

with a drug trafficking offense," and that "the

inert transportation of a firearm while a drug

trafficking offense is occurring is not enough to

meet this test." We disagree. In Bailey, the

Court "granted certiorari to clarify the meaning

of ’use’ under 924(c)(1)." Id. at 142. The Court

clearly distinguished between the "use" and

"carry" prongs of Section 924(c)(1), and noted

that "Congress used two terms because it intended

each term to have a particular, nonsuperfluous

meaning." Id. at 146. The Court proceeded to hold

that "a conviction under the ’use’ prong" of

924(c)(1) requires proof "that the defendant

actively employed the firearm . . . ." Id. at

150. Here, Mancillas was not charged with "using"

a firearm, only with "carrying" a firearm. Thus,

Bailey is not the touchstone for the district

court’s instructions on the elements of

"carrying" a firearm.

A better guide is Muscarello v. United States,

524 U.S. 125, 118 S. Ct. 1911 (1998), which

unlike Bailey, addresses the "carry" prong of

924(c)(1). In Muscarello, the United States

Supreme Court stated as follows:

The question before us is whether the phrase

"carries a firearm" is limited to the carrying of

firearms on the person. We hold that it is not so

limited. Rather, it also applies to a person who

knowingly possesses and conveys firearms in a

vehicle . . . which the person accompanies.

118 S. Ct. at 1913-14. The Court proceeded to

hold that guns locked in a glove compartment or

kept in the trunk of a vehicle satisfy the

"carry" prong of sec.924(c)(1), id. at 1914,

further demonstrating that Mancillas’ argument,

that "carrying" a firearm requires "active

employment" of the weapon, is misguided.

We have considered the meaning of "carry" as

used in sec. 924(c)(1) in United States v.

Molina, 102 F.3d 928 (7th Cir. 1996). There, we

stated that

[t]he relation between the firearm and the drugs-

- which is, after all, the core of the offense--

is best established by their relation to each

other, and not by the distance between owner and

gun at the moment of arrest . . . . a gun does

not have to be within a defendant’s immediate

reach.

Id. at 932. Moreover, in United States v. Baker,

78 F.3d 1241, 1247 (7th Cir. 1996), we explicitly

defined the term "carry" to mean "to move while

supporting: Transport." (citing Merriam-Webster’s

Collegiate Dictionary 175 (10th ed. 1993)). "[I]t

is the possession of the firearm coupled with the

affirmative act of transporting it during and in

relation to a drug trafficking crime that

precipitates liability under sec. 924(c)(1)." Id.

We are convinced that the trial court did not

mislead the jury in any way by defining

"carrying" as "having its ordinary meaning which

includes, among other things, to ’transport’ a

firearm," and by not requiring the jury to find

that Mancillas "actively employed" the firearm.

Finally, Mancillas believes that the trial court

erred by failing to expressly instruct the jury

that the gun must be carried "knowingly" before

a conviction is warranted under sec. 924(c)(1).

Mancillas failed to object, either at trial or at

the instructions conference, to the district

court’s alleged failure to include a separate

"knowledge" instruction. As such, his argument is

waived absent plain error. See United States v.

Douglas, 818 F.2d 1317, 1320 (7th Cir. 1987). We

have previously held that sec. 924(c)’s "during

and in relation to" element, discussed above,

encompasses a knowledge requirement. In United

States v. Gutierrez, 978 F.2d 1463 (7th Cir.

1992), this Court held that an indictment was not

defective for failing to explicitly state the

knowledge requirement. We agreed with the

district court’s conclusion that "[c]learly, a

person cannot have possession or control of a

firearm and allow the firearm to play a role in

the crime unless the person [had knowledge] of

the firearm’s existence." Id. at 1467. Moreover,

even if we were convinced that a separate

knowledge instruction was required, there is no

plain error because we do not believe that a

separate instruction defining "knowledge" would

have influenced the verdict. See Douglas, 818

F.2d at 1320 ("Plain error must be of such a

great magnitude that it probably changed the

outcome of the trial."). The following facts are

relevant to our determination. Initially, we note

that during Mancillas’ trial, Hardman testified

that minutes before Officer Cook arrived,

Mancillas displayed the Taurus weapon to the

three individuals who approached them that cold,

snowy and wintery December 17, 1996 night. In

addition, Kirk testified that Mancillas borrowed

the gun from Kirk the night before Mancillas was

arrested (and the court specifically credited

Kirk’s testimony). Finally, Cook stated that

before Mancillas was arrested and after Cook had

observed the handgun on the dashboard in front of

the very seat where Mancillas was sitting, the

Defendant (when questioned a third time) admitted

that the handgun in question belonged to him.

After examining all of these factors, we are

convinced that Mancillas well knew he was

carrying the firearm, and any rational jury would

have found this to be true. Thus, the trial

judge’s decision to not include a separate

knowledge instruction did not constitute clear

error.

Considered in their entirety, the jury

instructions on the elements of the crime of

"knowingly carrying a firearm during and in

relation to a drug trafficking crime" accurately

stated the law. We are not persuaded that the

jury was misled by the jury instructions in any

way, and we are convinced that the jurors had an

understanding of the issues presented and the law

applicable thereto. See Perez, 43 F.3d at 1137.

V. Whether the trial court erred when enhancing

Mancillas’ sentence for obstruction of justice

under USSG sec. 3C1.1 and denying a downward

departure for acceptance of responsibility under

USSG sec. 3E1.1.

A. Enhancement for Obstruction of Justice.

Mancillas next contends that the sentencing

judge committed error when she enhanced his

sentence for obstruction of justice pursuant to

USSG. sec. 3C1.1, which states in relevant part:

Obstruction or Impeding the Administration of

Justice. If the defendant willfully obstructed

or impeded, or attempted to obstruct or impede,

the administration of justice during the

investigation . . . of the instant offense,

increase the offense level by 2 levels.

The sentencing judge enhanced Mancillas’ base

offense levels for Count One (felon in possession

of a firearm) and Count Three (possession of

marijuana with intent to distribute) by two

levels each. We review de novo the district

court’s application of the guidelines and we

review factual findings in the sentencing phase

for clear error. See Yusuff, 96 F.3d at 989

(citation omitted).

The sentencing judge found that Mancillas had

attempted to obstruct justice by asking James

Kirk to falsely claim responsibility for the

Taurus weapon found in the Mercedes. The court

found that, prior to trial, the Defendant asked

Kirk to testify falsely that he had accidentally

left the Taurus weapon in the Mercedes when he

had borrowed the vehicle from Mancillas. Although

Kirk had misstated the facts to an officer early

in the investigation, once the trial began and

Kirk was placed under oath, he refused to accede

to Mancillas’ request that he testify falsely and

decided to tell the truth, stating that Mancillas

had borrowed the gun from Kirk on the evening of

December 16, 1997, and that Kirk had never before

been in Mancillas’ Mercedes.

Mancillas also argues that Kirk is not a

credible witness because Kirk changed his

statement to law enforcement officers

investigating the incident (as described below),

and the district judge erred by relying on his

testimony as grounds for the obstruction of

justice enhancement. Mancillas points out that

during the trial, Kirk testified that after

Mancillas was arrested, Kirk was approached by

law enforcement officers questioning him about

the handgun. At trial, Kirk testified that when

officers first asked him about his Taurus

handgun, he originally stated that the weapon was

stolen from his home. It was only after an agent

made a follow-up telephone call to Kirk that he

told the law enforcement official that he had

loaned the gun to the Defendant Mancillas.

It is clear that the trial judge relied on

Kirk’s testimony that Mancillas borrowed the

Taurus gun from Kirk, and we are unable to

discover any reason that would lead us to a

conclusion that the court committed clear error

when relying upon that testimony. "[W]e do not

second-guess the . . . judge’s credibility

determinations because he or she has had the best

opportunity to observe . . . the subject’s . . .

facial expressions, attitudes, tone of voice, eye

contact, posture and body movements . . . ."

Garcia, 66 F.3d at 856. A district court’s

credibility determination will not be disturbed

unless it is completely without foundation. See

United States v. Ferguson, 35 F.3d 327, 333 (7th

Cir. 1994) (citation omitted). "[T]he trial

judge’s . . . choice of whom to believe is

conclusive on the appellate court unless the

judge credits exceedingly improbable testimony."

United States v. Cardona-Rivera, 904 F.2d 1149,

1152 (7th Cir. 1990). In other words, "[w]e must

accept the [testimony] unless it is contrary to

the laws of nature, or is so inconsistent or

improbable on its face that no reasonable fact-

finder could accept it." Yusuff, 96 F.3d at 986

(citing United States v. Saunders, 973 F.2d 1354,

1359 (7th Cir. 1992)). The court made the

credibility determination as to whether or not to

believe Kirk’s testimony and the sentencing

hearing transcript reveals that the judge

carefully considered and fully explained her

reasoning in her decision to enhance the

sentence. The court noted that during the trial

Kirk had inculpated himself in numerous criminal

narcotics activities; that Kirk had no apparent

motive to fabricate testimony about this issue

because he and Mancillas were friends; that

Kirk’s story was corroborated by Marshall’s

testimony that Mancillas had asked Marshall to

testify that he (Marshall) possessed the gun; and

that Mancillas "had every reason in the world" to

try and avoid the gun charges, because he

understood the potential penalties he was facing

for being a felon in possession of a firearm. We

refuse to second guess the trial judge’s

credibility determination, particularly in light

of such overwhelming corroborative evidence, and

we are confident the court’s credibility judgment

was not clearly erroneous.

Mancillas, still not running out of challenges

to the complete and well-reasoned trial record,

next argues that the court engaged in

impermissible "double counting" by adding the

two-level increase to both Count One and Count

Three for obstruction of justice. The trial

court’s finding on the issue of obstruction "is

a factual one to be reviewed for clear error."

United States v. Friend, 104 F.3d 127, 130 (7th

Cir. 1997) (citing United States v. Hickok, 77

F.3d 992, 1007 (7th Cir. 1996)). Double counting

occurs when the court assesses more than one

enhancement to the offense level for a single

offense based on the same underlying conduct. See

United States v. Haines, 32 F.3d 290, 293 (7th

Cir. 1994) ("double counting occurs when

identical conduct is described in two different

ways so that two different adjustments apply").

However, we have expressly held that "there are

cases where a defendant’s obstructive conduct may

be such that it obstructs or impedes two separate

offenses." United States v. Perez, 50 F.3d 396,

399 (7th Cir. 1995) (citation omitted). Double

counting refers to the impermissible practice of

assessing more than one enhancement to the

offense level for a single offense based on the

same underlying conduct. See Haines, 32 F.3d at

293 (emphasis added). In the instant case, the

court enhanced Mancillas’ sentence on Count One

(felon in possession of a firearm), and on Count

Three (possession of marijuana with intent to

distribute). Our decision in Haines makes clear

that the trial court did not engage in "double

counting" because Mancillas’ obstructionist

conduct was examined to enhance his sentence on

two separate counts; his conduct was not cited as

grounds for two separate enhancements on the same

count. Thus, we hold that the sentencing court

did not err.

B. The Downward Adjustment for Acceptance of

Responsibility.

Finally, Mancillas contends that he was entitled

to a two-level downward departure for acceptance

of responsibility pursuant to USSG sec. 3E1.1

because he admitted, prior to trial, that the

firearm and the marijuana belonged to him.

Section 3E1.1 provides: "If the defendant clearly

demonstrates acceptance of responsibility for his

offense, decrease the offense level by 2 levels."

In order to qualify for a downward adjustment for

acceptance of responsibility, a defendant must:

(1) demonstrate that he clearly recognizes and

affirmatively accepts responsibility for his

conduct; (2) timely notify authorities of his

intentions to enter a plea of guilty; and (3)

truthfully admit the conduct comprising the

offense of conviction and admit, or not falsely

deny or frivolously contest, the relevant conduct

as it relates to the offense of conviction. USSG

sec.3E1.1. If a defendant denies certain criminal

conduct and the court determines it to have

occurred as testified to, "the defendant cannot

then claim that he has accepted responsibility

for his actions." United States v. Akindele, 84

F.3d 948, 957 (7th Cir. 1996). We review the

district court’s factual findings regarding

acceptance of responsibility under the clear

error standard. See United States v. Wilson, 134

F.3d 855, 871 (7th Cir. 1998); United States v.

Wettwattana, 94 F.3d 280, 285 (7th Cir. 1996). We

give great deference to the sentencing judge’s

application of the Sentencing Guidelines. See

USSG sec.3E1.1, cmt. n.5; United States v.

Kirkland, 28 F.3d 49, 50 (7th Cir. 1994).

The district court found that Mancillas engaged

in attempts to persuade two different people to

claim ownership of the Taurus handgun found in

his vehicle. Such conduct is patently

inconsistent with the notion of full and clear

acceptance of responsibility. The defendant

contends that because he admitted prior to trial

to Officer Cook that the Taurus handgun belonged

to him, and that the 420 grams of marijuana found

in the trunk was his, he was entitled to the

reduction. The sentencing judge disagreed and

denied Mancillas’ request, initially finding that

he admitted ownership of the marijuana in a

proffer he made to the government under a letter

of immunity, and because the admission was made

in this protected setting, it did not reduce the

government’s obligation at trial to prove up each

and every element of the case against Mancillas.

Moreover, the court simply found that "these

concessions . . . were not enough . . . to

constitute an acceptance of responsibility."

Mancillas put the government to the time and

expense of a trial, requiring throughout that his

guilt be proven beyond a reasonable doubt, and he

attempted to impede the government’s case all

along the way. This case does not come close to

the level of the "extraordinary" case which

warrants the application of sec. 3E1.1. See

United States v. Keeter, 130 F.3d 297, 299 (7th

Cir. 1997) (adjustments under sec. 3E1.1 apply

only in "extraordinary cases"), cert. denied, 118

S. Ct. 1331 (1998). We are convinced that the

sentencing court correctly determined that a

downward departure for acceptance of

responsibility was not warranted.

The judgment and sentence of the district court

are AFFIRMED.

FOOTNOTES

1 The facts described in this section of the

opinion are extracted from the hearing transcript

of Mancillas’ motion to suppress unless otherwise

noted.

2 At the time, Officer Cook was a nine-year

veteran of the IPD who had been assigned to

"street duty" for all but five months of his

career, during which time he was assigned to

"vice narcotics."

3 At trial, Cook testified that he drew his

weapon "because of the fact that there was a

broadcast of him [the suspect, who later was

proven to be Mancillas] having a gun . . . and

the fact that they were all walking away in

different directions, I did not want to get them

separated, having me in some type of

triangulation if they all did have weapons." In

other words, Cook attested that he drew his

weapon to protect his own safety.

4 The dispatcher actually assigned two officers

other than Cook and Lopossa to respond to the

call. However, both Cook and Lopossa were closer

to the Club than the two assigned officers and

thus volunteered to replace the officers in

responding to the Club to investigate.

5 Cook explained that he had asked the question

three times because "I wanted to know why

somebody wanted to tell me they didn’t have a gun

in a vehicle when I’m looking directly at the

handgun." Cook further testified that he found

these circumstances "very suspicious."

6 Also at this time, other backup officers began

arriving in the Club’s parking lot.

7 Cook testified that during his nine years as

an officer, and particularly his five months of

service in the "vice narcotics" division of the

IPD (which occurred in 1997), he learned to

identify various drugs including marijuana and

cocaine, and he also was taught to identify drug

paraphernalia. Cook stated that officers on the

force "come across several narcotic

investigations where you have to make

apprehension and confiscation of different types

of controlled substances . . .", and that he

himself has made "several" arrests involving the

apprehension and confiscation of marijuana.

8 Indiana law provides that "a person shall not

carry a handgun in any vehicle . . . without a

license issued under this chapter being in his

possession." Ind. Stat. Ann. sec.35-47-2-1.

9 The inventory search was performed pursuant to

IPD regulations.

10 We do not discuss in detail any charges

against Hardman or Marshall because their cases

are not before us on appeal.

11 During the hearing, Mancillas also made an

oral motion to suppress certain statements he

made to Officer Cook; the oral motion is

discussed later in this opinion.

12 The court did not specifically address the

issue of whether the search of the automobile was

justified in order to ensure the officers’

safety.

13 September 12, 1997, was a Friday; the

Defendant’s trial was scheduled to begin three

days later, on Monday, September 15, 1997.

14 The record reveals that on May 29, 1997, the

district court issued an order advising that all

motions contemplated by the Federal Rules of

Criminal Procedure (including motions to suppress

evidence) were to be filed within fifteen days

after the appearance of the Defendant’s attorney.

Mancillas’ attorney appeared on June 4, 1997;

thus Mancillas was required to file his motions

to suppress by June 19, 1997. Because he failed

to raise his Fifth Amendment Miranda arguments to

suppress his statements until three days before

trial, the court ruled that Mancillas failed to

timely notify the government that he intended to

challenge admission of his statements, and in

fact did not challenge admission of his

statements, until well after the court-mandated

deadline and just days before trial.

15 The judge did not explicitly cite any

particular rule or case authority in support of

her decision that the Fifth Amendment argument

was waived.

16 According to Marshall, Mancillas asked him to

deliver five pounds of the marijuana to someone

named "Jamie," and Mancillas also gave one pound

to "Lefty" for his assistance in repackaging the

marijuana.

17 It is quite obvious that Mancillas understood

the consequences of the crime of being a felon in

possession of a firearm as charged in Count One

of the Indictment for he had asked Marshall to

give false testimony regarding ownership of the

gun.

18 The court and parties engaged in a brief

discussion of this issue outside the presence of

the jury wherein the AUSA explained the

hypothetical she intended to propose. After

hearing the entire hypothetical, the court found

that it was permissible and overruled the

Defendant’s objection.

19 Agent Casey explained that in order to use

one-half to three-quarters of a pound of

marijuana before it loses its THC content and

turns "stale," a person would have to smoke

approximately thirty to thirty-five joints per

day. Thus, he concluded that "anything . . .

above a quarter pound personal stash . . . based

on my experience . . . would be for distribution

quantities." We note that the 420 gram package

found in the Defendant’s trunk equates to 14.7

ounces, or nearly one pound.

20 The citizen’s report stated that the car was

yellow while the officers described it as

"greenish."

21 We recognize, as did the officer in DeBerry,

that a gun in one’s waistband can be pulled out

and used in a matter of seconds.

22 We note our agreement with the trial court’s

conclusion, which Mancillas does not specifically

challenge on appeal, that the search was

justified because Mancillas did not resist

turning his car keys over to Officer Cook when

asked to do so, thereby allowing Cook to inspect

the interior of the vehicle. At the suppression

hearing, and again at trial, Officer Cook

testified that he asked Mancillas for the keys to

the locked Mercedes, and that Mancillas gave them

to him. The trial court accepted Officer Cook’s

testimony as true, and the judge’s credibility

assessment is entitled to a great deal of

deference. We do not second-guess the [trial]

judge’s credibility determinations

because he or she has had the best opportunity to

observe the verbal and nonverbal behavior of the

witnesses focusing on the subject’s reactions and

responses to the interrogatories, their facial

expressions, attitudes, tone of voice, eye

contact, posture and body movements, as well as

confused or nervous speech patterns in contrast

with merely looking at the cold pages of an

appellate record.

United States v. Garcia, 66 F.3d 851, 856 (7th

Cir. 1995) (citations and quotations omitted).

As such, we accept the district court’s reliance

on Officer Cook’s testimony and the court’s

subsequent determination that Mancillas

relinquished his car keys so that Officer Cook

could search the Mercedes for weapons and

confiscate the handgun on the dashboard. "[T]he

law is well established that if the officer asks

rather than commands, the person accosted is not

seized, and so the protections of the Fourth

Amendment do not attach." DeBerry, 76 F.3d at

885. The record supports the district court’s

finding that Cook asked rather than commanded and

that Mancillas turned over his keys and thus

consented to the search of his vehicle. Mancillas

presents "nothing to overcome the substantial

deference we afford the district judge." United

States v. Thompson, 106 F.3d 794, 798 (7th Cir.

1997) (quoting United States v. Lomeli, 76 F.3d

146, 149 (7th Cir. 1996)).

23 In Miranda, 384 U.S. at 444, the Supreme Court

held that "the prosecution may not use

statements, whether exculpatory or inculpatory,

stemming from custodial interrogation of the

defendant" unless the defendant is given warnings

designed to safeguard his Fifth Amendment rights

against self-incrimination.

24 As noted in the background section of this

opinion, Cook testified at the suppression

hearing that on the night of the arrest in the

parking lot, Mancillas admitted actually owning

the Taurus handgun. At trial, however, that

testimony was not elicited from Cook and thus the

statement was not admitted. Therefore, it is not

challenged on appeal.

25 The trial court found that formal arrest had

not yet occurred until the Defendant admitted he

lacked a permit, and thus was in violation of

Indiana law.

26 Similarly, in Mancillas’ case, approximately

five months after Mancillas was arrested the

district judge issued an order advising the

parties that "all MOTIONS contemplated by the

Federal Rules of Criminal Procedure shall be

filed within 15 days after [the] appearance by

the attorney for the Defendant." The defense

attorney initially appeared on June 5, 1997, thus

motions were due June 20, 1997. As noted,

Mancillas missed the deadline by failing to even

imply that he desired to make Fifth Amendment

objections at any time during pretrial

proceedings and waited until September 12, 1997,

literally the eve of trial, to make a motion to

suppress his oral statements pursuant to Miranda.

27 At some point in his career, Special Agent

Casey also taught a course on street

identification drugs at the Indiana Law

Enforcement Academy.