Petition for Writ of Certiorari — Mendez v. United States (No. 07-629)

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( | ) Supreme Court, U.S.

N FILED

oO. iene

07-629 NOV 5 - MO

OFFICE OF THE CLERK

Sn The

Supreme Court of the Gnited States

FELIPE MENDEZ, JR.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

° CS ge

ts £49

J.E. T Ill a <7

.E. TOBEY ame

601 Brady St. a 4

Suite 211 Pr

Davenport, lowa 52803

(563) 323-5700

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 242-2831

QUESTIONS PRESENTED

1. WHETHER THE TRIAL COURT JUDGE

AND THE EIGHTH CIRCUIT COURT OF APPEALS

FAILED TO FOLLOW THIS COURT’S HOLDINGS

IN HOLLOWAY V. ARKANSAS AND CUYLER V.

SULLIVAN WHEN FACED WITH AN ACTUAL

CONFLICT OF COUNSEL ISSUE WHICH WAS

RAISED AND BECAME A SUBSTANTIAL FACTOR

IN CONVICTION OF FELIPE MENDEZ, JR. IN

VIOLATION OF MENDEZ’S SIXTH AMENDMENT

STRUCTURAL AND FIFTH AMENDMENT DUE

PROCESS RIGHTS?

2. WHETHER TRIAL COURT ERROR AND

INEFFECTIVE ASSISTANCE OF COUNSEL COM-

BINED TO DENY EXCLUSION OF TERRY STOP

EVIDENCE USED AGAINST MENDEZ AT TRIAL

THAT DERIVED FROM A “PROFILE” STOP AND

SEIZURE, IN VIOLATION OF THE FOURTH

AMENDMENT TO THE UNITED STATES CON-

STITUTION?

TABLE OF CONTENT:

Page

QUESTIONS PRESENTED ..................cc:ccsesessesesees i

TABLE OF AUTHORITIESG.............c<ccecccsecveosesceseese iii

ee HIEUN catia cdnienciidicnsctieedictbhtvaninegsintinenees 1

ITI issietsdinsisershersindersdeciiancienstitaiiniaanalinsasaiemntins 1

CONSTITUTIONAL PROVISIONS AND STAT-

FE IE serceseccivresentnnneniineseoertmabnee 1

STATEMENT OF THE CASE .............cccessssssseesseees 2

ISSUES IN SUPPORT OF GRANTING WRIT ..... ll

|. BRERI cee se reren Se NIE 24

APPENDIX

I ciibiinciaciieiliciddkaiiaden Sctniihoicaaabcaaphenpsieniieenianabiiiae App. 1

I scitacaiccinicnpsteidaetiiisinsticimilaiatodeiliiptili App. 34

RULING ON SUPPRESSION .............ccecsssseseesesees App. 35

ORDER DENYING REHEARING/EN BANC.... App. 51

iil

TABLE OF AUTHORITIES

Page

CASES

Atley v. Ault, 191 F.3d 865 (8th Cir. 1999)................ 14

Bumper v. State of North Carolina, 391 U.S.

Be Cass siete ecincstesiinia pieunnibiaiantcinsinandndiaeubaeniininiordion 19

California v. Acevedo, 500 U.S. 565 (1991)............... 17

Carroll v. U.S., 267 U.S. 132 (1925)..............-cecccserees 17

Chimel v. California, 395 U.S. 752 (1969)...............+. 17

Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999

CRD isinciitcsnsecsinvetasionitivesineitiananiopaicnicnntivnecinitinnlanianitidainiconts 15

Coolidge v. New Hampshire, 403 U.S. 443

CRIT ED excovinccesrsctshtsnarstesnnniecnanmaninnnneiianamntn 17

Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct.

I Ee iccecirsewsecsicencesecsccesecpretvenesemes 11, 12, 14, 15

Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct.

FE Ci eveivcceetevctcneneciveserenriivercetetpeneintniementns 12

Glasser v. United States, 315 U.S. 60, 62 S. Ct.

IF Ce resevecticksvnneentiniseevesremintiormnennennnntnns 14

Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct.

FTE Ce iw ineeniciiqrevinticesadsinannnbiaeintainnecaieiin passim

Illinois v. McArthur, 531 U.S. 326 (2001)...........0006 19

Powell v. Alabama, 287 U.S. 45, 69 S. Ct. 55

CIE... caivecsdiennimncenciteanmmnenanetinnesaitenannne 12,15

State v. Powell, 684 N.W.2d 235 (Iowa 2006)............ 14

State v. Watson, 620 N.W.2d 233 (lowa 2001)........... 14

TABLE OF AUTHORITIES - Continued

Page

Strickland v. Washington, 466 U.S. 668, 104

a ic Se GEE coviisaprcsccacsntocmsmianedisanesniniiinihin 12, 13

Terry v. Ohio, 392 U.S. 1, 85S. Ct. 1868 (1968)....7, 17

U.S. v. Gonzales-Lopez, 126 S. Ct. 2557 (2006) ........ 15

U.S. v. Hill, 386 F.3d 855 (8th Cir. 2004)... 19

U.S. v. Marshall, 986 F.2d 1171 (8th Cir. 1993)........ 19

U.S. v. Leon, 468 U.S. 897 (1984) ............cccccccsssceesores 17

U.S. v. Ross, 456 U.S. TOG CIGD) osccecevcccsecensssesvervess 17

USS. v. Ash, 413 U.S. 300, 93 S. Ct. 2568 (1973)....... 12

U.S. v. Matlock, 415 U.S. 164 (1974)... eee 18

U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926

SEE Aisiadscanihecicicinedintciosninmbisthesslasatissanniilanedicertatinied 15

Vale v. State of Louisiana, 399 U.S. 30 (1970).......... 18

Wheat v. United States, 486 U.S. 153, 108

i aks. SOE GED viitecitenencnntidecpedosstandiecsnetone 11, 12, 13

CONSTITUTION

Ses at II, BY siscrncncsetctenesttscnsetonsenvs 1. 7, 38, 37

Re ee, I oa cssadecnbmsemeiniiabine 2,11

OPINION BELOW

Lower Court Decisions and Orders

The decision in the Eighth Circuit Court of

Appeals may be found at 492 F.3d 930, C.A. 8 (Iowa).

The trial court’s order regarding Motion to Sup-

press may be found at 351 F. Supp.2d 896, S.D. Iowa

No. 4.04-cr-199.

JURISDICTION

This is a timely filed Petition for Writ of Certio-

rari from Denial of Hearing En Banc and/or Rehear-

ing filed August 7, 2007. Defendant was charged in

Federal Court with violations of 21 U.S.C. § 841 and

21 U.S.C. § 846. Defendant was tried in the Southern

District of Iowa and appealed to the Eighth Circuit

Court of Appeals.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

AMENDMENT FOUR

“The right of the people to be secure in their

persons, houses, paper and effects, against unreason-

able searches and seizures, sivall not be violated and

no warrants shall issue, but upon probable cause

supported by oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.”

AMENDMENT FIVE

“No person shall be held :o answer for a capital

or otherwise infamous crime ... Nor be deprived of

life, liberty or property without due process of law.”

AMENDMENT SIX

“In all prosecutions the accused shall enjoy...

and ... Have the Assistance of Counsel for his de-

fence.”

STATEMENT OF THE CASE

Felipe Mendez, Jr. and others were indicted in

the United States District Court for the Southern

District of lowa. The charge was Conspiracy to Dis-

tribute a Controlled Substance, methamphetamine in

Violation of 28 U.S.C. §§ 841, 846.

For a period of some significant time, law en-

forcement was investigating distribution of metham-

phetamine in the Des Moines, lowa locale. (Des

Moines is in the Southern District of Iowa). An early

event that helped start the investigation was a Ne-

vada stop and search of an automobile driven by one

Mr. Cruz also occupied by a passenger. The vehicle

was seized and about 20 pounds of methamphetamine

were found in a secret compartment of the white

BMW. (Trial Tr. pp. 37-39)

Meanwhile, in Des Moines, Agent DeJoode, a

member of a multi agency drug task force developed a

confidential informant who led him to Katherine

Boatwright. Over a period of time, DeJoode’s infor-

mant was able to make controlled meth buys from

Ms. Boatwright. During that same interval, the

informant became familiar with Boatwright’s travels

and observed or was told about multiple cars used to

mule the drug from California to Des Moines. A red

Volkswagen Jetta was not among those cars. They

did, per informant, include a white BMW, a Chevy

Blazer, and a Lexus.

Near in time to July 8, 2004, the date of arrest of

Mendez and others, the informant also told law

enforcement of a belief that Boatwright’s meth came

from a Hispanic man from California. (Supp. Hrg. Tr.

pp. 14-15)

The drugs were muled from Southern Central

California to Des Moines by auto. The quantities were

quite large, often reaching 20 or more pounds of

methamphetamine per load. Other Des Moines area

conspirators were identified as Phillip Gatewood,

Jody Cannon, and Isabel Rodriguez. The informant

had heard the name “Alex” in connection with the

main man in California. Another conspirator was

charged with a serious violent crime in Des Moines.

Boatwright became the agent for “Alex” in trying to

arrange bail for that man. That attempted transac-

tion took place by phone.

The Iowa authorities monitored the metham-

phetamine activities of this group, continuing to

gather intelligence over a term of months. From time

to time they ran surveillance on Boatwright’s house

in Des Moines. According to the informant, he had not

seen Hispanic persons going in and out of Boat-

wright’s home, her base of operations. Surveillance

did not produce any particular pattern of who came

and went to and from Boatwright’s. Per the infor-

mant, from time to time, Boatwright left town, osten-

sibly to California. (Supp. Hrg. Tr. pp. 37-40)

The record does not establish with any certainty

the destination for Boatwright’s trips until follow-up

developed the last trip before arrests. That was a trip

to California. It was short in duration and Boatwright

had returned in the one or two days preceding ar-

rests. (Supp. Hrg. Tr. p. 39)

Based upon all of this, DeJoode obtained a search

warrant for Boatwright’s home. With warrant in hand,

DeJoode sat on surveillance there during the one or

two days after her trip return. During th pre-arrest

period, DeJoode did not witness the arrival of any of

the described mule vehicles nor any identifiable males

or females. At about 3 o'clock p.m. on the 8th day of

July, an agent saw two Hispanic males leave Boat-

wright’s house. (Supp. Hrg. Tr. pp. 16-17, 35-37) No

one had informed him of their arrival nor anything

else about these two men. They got into a red Volks-

wagen Jetta automobile with a Des Moines area license

plate. (Supp. Hrg. Tr. pp. 16-17, 41) It had never

been identified or suggested to be a mule or other

automobile connected to the conspiracy. The Jetta

committed absolutely no law violation as it left. Id.

DeJoode radioed another surveillance car to follow and

then he ordered the stop of the Jetta. The other agent

tailing did not observe, nor report any law violation by

the Jetta or its occupants. Jd. The Jetta was stopped a

short distance from Boatwright’s house and at about

the same time as the search warrant was executed,

DeJoode drove to the place where the Jetta was .

stopped and held by the other agent(s). (Supp. Hrg. Tr.

pp. 17-19) DeJoode approached the car, occupied by

the two Hispanic males. He asked the driver (who

turned out to be Mendez) for ID/drivers license. The

other occupant was determined to be Santamaria.

Mendez produced a California Drivers License. (Supp.

Hrg. Tr. p. 20) Upon further questioning, DeJoode

requested more information from Mendez. Mendez

produced another license from California in the name

of Felipe Mendez, Jr., his true name. Mendez said

something about having been told he should have

more than one ID, because of the nature of the times

we live in. DeJoode was quite suspicious of this and of

course at that point he had discovered evidence of

some kind of crime, possession of a false drivers li-

cense. Another agent had been dealing with the pas-

senger. (Supp. Hrg. Tr. pp. 22-23, 42-44) A quick on-

scene search of Mendez, his passenger and the Jetta

was done. DeJoode suggested going to a law enforce-

ment office to sort things out, so to speak. However,

even at that point, DeJoode had discovered no illegal

matters about the Jetta. It was properly licensed and

registered. (Supp. Hrg. Tr. pp. 22-23)

An impound search of the Jetta revealed two

“duffel bags”, one with over $4,000.00 in cash. Also in

the vehicle was found little piece of cardboard, consis-

tent with drug packaging. A “zip-loc” box (Supp. Hrg.

Tr. pp. 22-24) However, no contraband per se was

discovered during the search. The transcribed record

does not mention any discovery of “secret” compart-

ments, in the seized Jetta. While in the local office,

DeJoode made his determination that Mendez was

not in the U.S. legally. During the life of the prosecu-

tion, neither duffel was ever proved to belong to

Mendez. However, the U.S. currency seized included

several bills that had been serialized and used in an

undercover, controlled recent drug purchase from

Boatwright. (Trial Tr. p. 554) During the execution of

the search warrant at Boatwright’s home, agents found

baggies with corners gone, and a box for baggies sup-

posedly like the cardboard in the Jetta. Boatwright and

others ultimately charged were found in Boatwright’s

house. One charged alleged conspirator was found in

the bathroom of the house and a small amount of

methamphetamine was also found in the bathroom.

Ultimately, Mendez, Isabel Rodriguez, Gascon

Guerrero, Gatewood and Santamaria went to trial on

the conspiracy chargefs). The other co-conspirators

became witnesses for the Government.

During the post-indictment phase of the case,

Mendez had several different lawyers before settling

upon Mr. McCarthy for trial counsel. One of the first

of the series of counsel filed a motion to suppress

evidence discovered from the warrantless seizure and

search of the Jetta and Mendez. Another successor

counsel, Mr. Brown, did a very detailed supplement to

that Motion adding factual information and case

citations for the motion. (Clerk’s Docket No. 70) The

motion remained an assertion of a warrantless sei-

zure and search.

The motion continued to attack a Terry v. Ohio,

392 U.S. 1, 85 S. Ct. 1868 (1968) exception, as well as

the generalized automobile exception to warrant. The

Government filed a resistance with authorities; all of

its contents were directed toward defending a Terry

stop or other warrantless exception to the Fourth

Amendment prohibition against unreasonable war-

rantless search and seizure. As time progressed to the

date for the suppression hearing, there was never any

attempt by the Government to invoke authority to

stop the Jetta because of the Boatwright warrant. At

no time was the defense attacking a search pursuant

to warrant. By the time for hearing, Mendez was

represented by yet another lawyer, Mr. Parrish of Des

Moines, Iowa. The case had been assigned to the

Honorable Robert W. Pratt, District Judge for the

Southern District of lowa. Proceedings were held in

Des Moines, Iowa U.S. Courthouse, the main court-

house for that District Court. Assistant U.S. Attorney

General, John Courter, handled the case and sup-

pression hearing for the Government. Mr. Parrish

and his client, Mendez, were present at hearing. The

only witness was DeJoode. Before the hearing.on the

merits of the motion, Mendez himself asked for

continuance, wanting to hire another new attorney.

After an exchange with Mendez, Judge Pratt then

turned to Mr. Parrish and stated “It is your motion

counsel, you have the burden of proof.” Mr. Parrish

followed the Court’s demand and called DeJoode and

questioned him. At no time did the AUSA offer to

accept the burden of proof which was his by law. At no

time during the hearing did Judge Pratt correct the

erroneous burden of proof assignment. AUSA Courter

cross-examined his own agent witness. DeJoode’s

testimony at that hearing has been summarized

earlier in this statement. On the 23rd day of Decem-

ber, 2004, Judge Pratt filed his ruling, denying the

exclusion of potential evidence gained by the stop,

seizure and search of Mendez, his passenger and the

Jetta automobile. However, for Petitioner, the most

significant part of his ruling is the substantial

amount of space he devoted to advising and warning

law enforcement against the apparent “profiling” in

Mendez’s case. In spite of those cautions Judge Pratt

never reversed that ruling against exclusion. (Clerk’s

Docket No. 90)

At trial, the evidence against Mendez was pro-

vided by numerous co-conspirators, DeJoode, and the

Nevada trooper whose stop out west of the BMW was

ized money (photographs) came into evidence. The

multiple identification documents found on Mendez

came in; the baggie box items came in as typical

dealer packaging. Obviously, his presence at the

Boatwright home came before this jury; presence on

the day of the execution of the search warrant and his

presence in Des Moines the day after Boatwright flew

back from California. The mortgage amount related

to Felipe’s California home came in. His tax returns

were in evidence. (Trial Tr., pp. 632)

Evidence was offered that the Nevada White

BMW was at one point titled in Mendez’s wife’s name.

Phone records of Boatwright, allegedly included calls

to “Alex” (Mendez and Alex were claimed to be one

and the same.)

However, there was something special about one

of the Government’s witnesses offered to convict

Mendez. Carlos Gil was called to the stand. Before he

actually said anything, counsel for Mendez asked for

a conference at the bench. The lawyer informed that

Gil was at that time counseled by Mr. Brown; this is

the same Mr. Brown who had done the detailed and

law supported supplement to Mendez’s Motion to

Suppress. The Government did not deny Attorney

Brown and Gil representation which was in existence

while Gil testified against Mendez. Judge Pratt

decided to allow Gil to testify and then would make a

record. This is what appeared to have happened since

there is no record of who said what at the bench;

there was, however, a record of sorts made during

that first recess atter Gili testified. (Trial Tr. p. 205)

Gil identified himself as a confederate of Mendez,

described a car of Mendez’s that Mendez used in Des

Moines for their meetings. He said he knew Mendez

as “Alex.” At the least, he testified to around eight or

more pounds of methamphetamine purchased from

Mendez. This was put atop the pile of co-conspirator

testimony. The record on the conflict was left open.

The next day Mendez’s lawyer abandoned making a

record. (Trial Tr. p. 325) The reason is not shown in

the record.

The jury returned guilty verdicts on July 1, 2005.

New counsel timely filed a motion for new. trial,

raising the issues identified in this petition. New trial

was denied and judgment was pronounced January

19, 2007. (Clerk’s Docket No. 329) Notice of Appeal to

the Eighth Circuit Court of Appeals was filed. The

case was argued March 14, 2007, and decision was

filed on the 5th day of July, 2007. Petition for Rehear-

ing and Hearing En Banc was denied on August 7,

2007. This petition is filed with the Court within 90

days of that denial.

ISSUES IN SUPPORT OF

GRANTING THE WRIT

I. WHETHER THE TRIAL COURT JUDGE

AND THE EIGHTH CIRCUIT COURT OF

APPEALS FAILED TO FOLLOW THIS

COURTS HOLDINGS IN HOLLOWAY V.

ARKANSAS AND CUYLER V. SULLIVAN

WHEN FACED WITH AN ACTUAL CON-

FLICT OF COUNSEL ISSUE WHICH WAS

RAISED AND BECAME A SUBSTANTIAL

FACTOR IN CONVICTION OF FELIPE

MENDEZ, JR. IN VIOLATION OF

MENDEZ’S SIXTH AMENDMENT STRUC-

TURAL AND FIFTH AMENDMENT DUE

PROCESS RIGHTS.

“Federal Courts have an independent interest in

ensuring that criminal trials are conducted within

the ethical standards of the profession and that legal

proceedings appear fair to all who perceive them.”

Wheat v. United States, 486 U.S 153, 160, 108 S. Ct.

1692, 1698 (1988). In Wheat, a group of defendants in

the same drug conspiracy wished to share the ser-

vices of one counsel. Wheat, at 155 and 1692. The

Government resisted this arrangement, arguing that

pending cooperation agreements would inevitably

create an in-trial conflict of interest, and the court

would be enmeshed in a genuine conflict of counsel

situation. Wheat, at 156 and 1695. With a cooperating

witness waiting in the wings, sure to be cross-

examined by his own counsel, the District Court

disallowed the multiple representation. Wheat, at 157

and 1696.

The right to counsel is secured to a defendant by

the Sixth Amendment of the United States Constitu-

tion “ . in all criminal prosecutions, the accused

shall enjoy the right ... to have the Assistance of

Counsel for his defence.”

This Court worked its way through difficult cases

inuring this Sixth Amendment right within Powell v.

Alabama, 287 U.S. 45, 69 S. Ct. 55 (1932) through

U.S. v. Ash, 413 U.S. 300, 93 S. Ct. 2568 (1973). In

between, the foundational case, Gideon v. Wain-

wright, 372 U.S. 335, 83 S. Ct. 792 (1963) held that

for any serious offense, the right to counsel must be

secured. Key to the right to counsel is the right to

effective counsel. Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052 (1984). “Thus, while the right to

select and be represented by one’s preferred attorney,

is comprehended by the Sixth Amendment, the essen-

tial aim is to guarantee an effective advocate... .”

Wheat, at 159 and 1697.

The holding in Wheat is basically founded upon

ihe two most often considered decisions on a trial

court’s duties when an actual conflict arises or the

possibility of counsel conflict exists. Holloway v.

Arkansas, 435 U.S. 475, 98 S. Ct. 1173 (1978); Cuyler

v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708 (1980). In

Wheat, discussing the ABA Model Code of Profes-

sional Responsibility and other such ethical guides,

this Court stated, “Not only the interest of a criminal

defendant but the constitutional interest in the

rendition of just verdicts in criminal cases may be

jeopardized by unregulated multiple representation.”

Wheat, at 160 and 1698. For Mr. Mendez, the testi-

monial co-conspirator appearance of Carlos Gil, a

defendant now represented by Mr. Brown, one of

Mendez’s counsel in the case on trial, has been given

short shrift. Although the existence of attorney client

conflict is acknowledged by the Eighth Circuit Court

of Appeals, it is passed over as insignificant (Opinion,

pp. 20-21) Further, the Circuit Court found that the

issue had been abandoned by Mendez. (Opinion, pp.

21-22) The words of trial counsel, while suggesting

waiver of Mendez’s complaint, is not the effective

assistance of counsel (Opinion, pp. 21-22) to which

Mendez was entitled. In Strickland, at 690 and 104

S. Ct. 2052, this Court held that “the reasonableness

of counsel’s challenged conduct must be judged on the

facts of the particular case, viewed as of the time of

counsel’s conduct.” In this trial, however, neither the

trial judge nor defense counsel undertook their essen-

tial duties to Mendez and the questioned integrity of

the criminal justice system, including the appearance

of impropriety. [emphasis applied} In Holloway,

supra, when the irial judge is informed of a conflict

(not just a possible conflict) regarding trial counsel,

the court, itself, must investigate the nature of the

conflict and its potential for injury to the propriety of

the trial process. Holloway, at 484 and 1178-9. Also,

within the context of trial counsel conflict, if such

conflict is shown, but not properly acted upon by the

trial court, prejudice is presumed. Holloway, at 489

and 1181. The Eighth Circuit knew this body of law.

Holloway is an Eighth Circuit case. And, the Eighth

Circuit and Mendez’s trial judge had applied Hollo-

way to soundly criticize and reverse a State of lowa

trial court. See, Atley v. Ault, 191 F.3d 865 (8th Cir.

1999), Atley v. Ault certainly opened the eyes of Iowa

trial judges and Iowa’s Appellate Courts. See State v.

Powell, 684 N.W.2d 235 (lowa 2006), State v. Watson,

620 N.W.2d 233 (Iowa 2001). Holloway is a clearly

framed rule for counsel conflict. It clarified Glasser v.

United States, 315 U.S. 60, 62 S. Ct. 457 (1942). If a

conflict exists, the judge must act.

In its Mendez opinion, the Eighth Circuit per-

sists, as did the trial judge, in treating the identified

conflict as a mere possibility. (Opinion pp. 21-22) The

Eighth Circuit characterizes Mendez’s situation in

the context of Cuyler v. Sullivan, 446 U.S. 335, 100

S. Ct. 1708 (1980) at pages 21-23 of its opinion.

Cuyler stands for the proposition that even in the

trial attorney context, there must be a showing of a

actual conflict and not just possibility. Cuyler, at 350

and 1719. “In order to establish a violation of the

Sixth Amendment, a defendant who raised no objec-

tion at trial must demonstrate that an actual conflict

uf interest adversely affected his lawyer’s perform-

ance.” Cuyler at 348 and 1718.

At the very least, trial counsel for Mendez should

have moved to strike Gil’s testimony and should have

requested an admonition. The failure to do so

breaches an essential attorney duty under these

unique circumstances.

The fact that Attorney Brown prepared a Sup-

plement to Motion to Suppress, and was in Mendez’s

case for a short period before he became Gil’s negoti-

ating Attorney does not render this incident meaning-

less and non-prejudicial. This is because a defendant

in a criminal case is entitled to effective assistance of

counsel in all critical stages of prosecution proceed-

ings. Powell v. Alabama 287 U.S. 45, 53 S.Ct. 55

(1932). A matter that includes post-arrest line up is a

critical stage. Coleman v. Alabama, 399 U.S. 1, 90

S. Ct. 1999 (1970), U.S. v. Wade, 388 U.S. 218, 87

S. Ct. 1926 (1967). In Powell v. Alabama, supra, this

Court recognized that from arraignment to trial is

“ _. perhaps the most critical period of the proceed-

ings. .. .” Powell, at 57 and 59.

The matter of fact is that either the Circuit

Court’s or the trial court’s acknowledgment would

require reversal and analysis of harmless error under

Cuyler and this Court’s most recent opinion in U.S. v.

Gonzales-Lopez, 126 S. Ct. 2557 (2006). There was

structural error here not susceptible to that easy

remedy.

Il. WHETHER TRIAL C*\}JURT ERROR AND

INEFFECTIVE ASSISTANCE OF COUN-

SEL COMBINED TO DENY EXCLUSION

OF TERRY STOP EVIDENCE USED

AGAINST MENDEZ AT TRIAL DERIVED

FROM A “PROFILE” STOP AND SEIZURE,

IN VIOLATION OF THE FOURTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION?

On December 14, 2004, Mendez’s Motion to

Suppress, Clerk’s Docket Nos. 35, 76, 78 came on for

hearing. Attorney Parrish was Mendez’s attorney at

the time. (Supp. Hrg. Tr. pp. 2-6) In spite of the fact

that all attorneys had raised and briefed the motion

as an attack on a warrantless Terry stop, the trial

court placed the burden of proof upon Mendez.

Mr. Mendez at this point in time the lawyer

has filed a motion, and at least two briefs,

and this morning I think a third alleging

that the search that was done is illegal. You

have the burden of proof on that issue. |em-

phasis applied] (Supp. Hrg. Tr. p. 6)

The right of the people to be secure in their

persons, houses, papers and effects, against

unreasonable scarches and seizures, shall

not be violated, and no warrants shall issue,

but upon probable cause, supported by oath

or affirmation and particularly describing

the place to be searched, and the persons or

things to be seized.

Fourth Amendment, United States Constitution.

Warrantless searches are presumed to be unreason-

able unless they are searches subject to a few specifi-

cally established exceptions. U.S. v. Ross, 456 U.S.

798 (1982); Coolidge v. New Hampshire, 403 U.S. 443

(1971); U.S. v. Leon, 468 U.S. 897 (1984); California v.

Acevedo, 500 U.S. 565 (1991). Those exceptions may

include a search incident to arrest, Chimel v. Califor-

nia, 395 U.S. 752 (1969); Search of an automobile

Coolidge v. New Hampshire, supra; Carroll v. U.S.,

267 U.S. 132 (1925) and, as is relevant, a reasonable

stop of an individual, including an individual in a

vehicle when law enforcement can provide a reason-

able and articulable suspicion of criminal conduct or

observes the commission of a criminal act. Terry v.

Ohio, 392 U.S. 1, 30, 855 S. Ct. 1868 (1968). On

September 3, 2004, Mendez’s lawyer filed a motion to

suppress. Clerk’s Docket No. 35. Although the motion

to suppress acknowledged the existence of a warrant

in specific relationship to the Boatwright residence,

as well as certain named persons therein, the motion

centered on the issue of the warrantless stop of the red

Jetta Volkswagen and the lack of reasonable suspicion

to justify the stop in the absence of observation of a

criminal violation. On September 15, 2004, the gov-

ernment filed its response to that initial motion to

suppress, and nowhere therein did it seek to justify

the stop of the red Jetta and the resulting search on

the basis of the “Boatwright warrant.” Clerk’s Docket

No. 43. On October 20, 2004, Clerk’s Docket No. 76, a

lengthy and detailed supplement to the motion to

suppress was filed by another trial counsel for

Mendez. The clear thrust of that supplemental mo-

tion was the attack upon a warrantless search. On

the 25th of October, 2004, in Clerk’s Docket No. 78

the government again filed a brief and memorandum

in opposition to the motion as supplemented and

again did not seek to bring the stop of the Jetta and

resulting seizure and search within the scope of the

warrant. Finally, on December 14, 2004, by another

trial counsel, an amended and supplemented motion

to suppress was filed, again, referencing the existence

of the “Boatwright warrant” but solely attacking the

stop, seizure and search on the basis that it was

warrantless and lacked the necessary reasonable

articulable suspicion to justify it. (Supp. Hrg. Tr. p. 6)

Following further discussions between the court

and Mr. Mendez on his claim of lack of preparation

and desire for other counsel, the court directed its

attention to his lawyer, and stated “You may proceed

with your case, counsel.” (Supp. Hrg. Tr. 7) It is

noteworthy that the government’s lawyer did not take

that opportunity to alert the court that the sole issue

before it was a warrantless stop, seizure and search.

Had the government done so, the court would have

been alerted to its error in the placement of burden

of proof and the government then could have gone

forward to meet its lawfully placed burden; to prove

by a preponderance of the evidence that the war-

rantless stop, seizure and search met a constitution-

ally approved exception to the warrant requirement.

Carroll v. United States, supra; U.S. v. Matlock, 415

U.S. 164 (1974); Bumper v. State of North Carolina,

391 U.S. 543 (1968); Vale v. State of Louisiana, 399

U.S. 30 (1970). Recently, in a concurring opinion

within Illinois v. McArthur, 531 U.S. 326, 338 (2001).

The Honorable Justice David Suiter affirmed, “ ...

most states follow the rule which is utilized in the

Federal Court; if the search or seizure was pursuant

to a warrant, the defendant has the burden of proof;

but if the police acted without a warrant, the burden

of proof is on the prosecution.” This position has been

repeatedly adhered to in the Eighth Circuit. U.S. v.

Marshall, 986 F.2d 1171 (8th Cir. 1993); U.S. v. Hill,

386 F.3d 855 (8th Cir. 2004). As the Eighth Circuit

has noted, “Searches conducted without a warrant

are per se unreasonable, subject to a few well-

established exceptions.” Hill at 858.

Here, the government claims that the stop,

seizure and search of the Jetta vehicle was a “Terry

Stop.” Terry v. Ohio, 392 U.S. 1, 85 S. Ct. 1868 (1968).

The primary testifying agent at the suppression

hearing acknowledged that the search warrant did

not contain the information upon which he based his

order for other agents to make the Jetta stop. Supp.

Hearing pp. 12-30. At page 30 of the Suppression

Hearing Transcript, Agent DeJoode says, “In my

aftidavit — and this was a search for a residence, that

it was not a search warrant for Felipe Mendez or the

vehicle.” Felipe Mendez, Jr. was denied the effective

assistance of counsel at his motion to suppress hear-

ing. A defendant at a criminal trial and all meaning-

ful stages of that trial is entitled to the effective

assistance of counsel under the Sixth Amendment to

the United States Constitution. Strickland v. Wash-

ington, 466 U.S. 668 (1984). In order to show that

counsel was ineffective, a defendant must establish

that counsel failed to perform an essential duty and

prejudice resulted. Strickland at 689. As to prejudice,

the defendant must show “that there is a reasonable

probability that, but for counsel’s unprofessional

errors, the results of the proceeding would have been

different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”

Strickland at 694. There can be no logical explanation

for a competent lawyer taking on a burden of proof on

such a significant constitutional issue, when The

Constitution and the laws derived therefrom do not

place it upon the defendant. The notions of strategy

or reasonable trial and trial preparation tactics

cannot even come into play as a reason for counsel’s

substantial error. Unfortunately, the court com-

pounded the significant error by placing the burden

upon defendant. This was done in spite of the fact

that none of the pre-hearing suppression memoranda

briefs or motions attempted to bring this stop, seizure

and search within the scope of the “Boatwright war-

rant.”

Nowhere in the thirteen-page memorandum and

order on defendant’s motion to suppress evidence filed

December 23, 2004, (Clerk’s Docket No. 90) does the

court acknowledge its erroneous placement of the

burden. The trial court’s analysis which starts on

page 7 of the ruling does not place the burden on the

government to show that this stop, seizure and search

fits within a recognized exception to the warrant

requirement. Although the court quotes numerous

cases which discuss that burden of proof, the court

never takes it into account. The court states “the

government concedes that no probable cause existed

based upon a traffic violation, and that no probable

cause existed under the search warrant, to stop the

defendant. Instead, the government contends reason-

able suspicion existed to believe the persons in the

Jetta were involved in criminal activity.” (Order

Denying Suppression, p. 8) In its ruling, the court

does face head-on the “specter of racial profiling.”

(Order Denying Suppression, p. 8) On page 9, the

court says “the existence of the search warrant con-

firmed that on-going criminal activity likely existed

at the residence. The key issue for this analysis, is

whether the defendant could reasonably be linked to

that activity given Agent DeJoode’s information at

the time.” The court then goes on to rationalize that

essentially since no other Hispanic people were

known to frequent the residence, then Hispanics who

might be present on July 8, 2004 must be criminally

involved. Jd. at 9. The court then turns to the warrant

which was particular in its place or persons to be

searched for a justification of DeJoode’s national

origin-based decision. (Order Denying Suppression, p.

10) Finally, having upheld Agent DeJoode’s suspi-

cions, the cuurt says “that said, the court is troubled

that up until his actual identification was secured,

the defendant was only identified as being part of a

racial minority and stopped largely because of that

generalized identification.” (Order Denying Suppres-

sion, p. 11) The court then ves on farther to say “it is

this court’s hope, howev: , that the government

continues to sensitize its agents to the perception of

the minority communities it serves, and bear in mind

identifications based on generalized racial groupings

in support of search’s and seizure’s risk undermining

the support that is so crucial to good police work.” Id.

at ll.

Addressing this issue raised by motion for new

trial, the court in its ruling on the suppression issue

rationalizes the placement of the burden of proof by

directing attention to defense counsel who himself

offered the warrant into evidence. (Supp. Order p. 16)

The fact that defense counsel would take such an

erroneous step indicates that he had no concept of the

assignment of burden of proof in this hearing. The

court acknowledges on page 16 of the Ruling on New

Trial Motion (Clerk’s Docket No. 327), that the gov-

ernment never made an argument at hearing or in

submissions that claimed the warrant covered the

stop, seizure and search. To complete the rationaliza-

tion process, the court then indicates that there was a

brief period of time when defendant assumed a bur-

den and then it somehow shifted to the government.

The court even rationalizes that the transcript re-

flects that everybody understood where the burden

lay. (Clerk’s Docket No. 327) The court indicates “this

understanding is also reflected in the court’s memo-

randum and order (Clerk’s Docket No. 90).” The fact

is as previously noted, the ruling never places the

burden where it belonged. Finally, Mendez is required

to demonstrate prejudice as previously noted. The

prejudice to defendant can be clearly seen in the

closing salvos of the government cross-examination of

Felipe Mendez, Jr. The pre-serialized “buy money”

was the only physical evidence of criminal conduct

that could be attributed to Mendez because of his

presence at the Boatwright residence and his pres-

ence in the Volkswagen Jetta where the money was

found. All of the other evidence came from snitches

and co-conspirators who had made deals in return for

their assistance to the government. It is sometimes

said that errors by a trial court sitting alone finding

facts and applying the law are more easily cured and

prejudice avoided. The problem with that position in

Mr. Mendez’s case, is that a burden of proof creates

an expectation. A burden of proof on the evidence

beyond a reasonable doubt at trial, not only entitles,

but compels jurors to expect the government to meet

its burden of proof. The mental status of a judge who

perceives a burden of proof at the commencement of a

hearing to the court is no different. Felipe Mendez, Jr.

should not have been required to prove that the stop,

seizure and search of his person and the Jetta auto-

mobile were unreasonable by preponderance of the

evidence. Unfortunately, because of the ineffective

assistance he received from counsel as well as the

trial court’s error, he was prejudiced.

rr}

CONCLUSION

Petitioner requests that this Court enter an

order, granting review and merits briefing, especially

in light of attorney ethics considerations. This Court’s

guidance is sorely needed by bench and bar on that

matter.

The present tense circumstances of the United

States, requires the Court to examine this “profiling”

issue.

Respectfully submitted,

J.E. ToBey III

601 Brady St.

Suite 211

Davenport, Iowa 52803

(563) 323-5700

App. 1

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 05-4071

United States of America,

Plaintiff-Appellee,

Isabel Ramon-Rodriguez,

also known as

Ramon Herrera-Cisneros,

Defendant-Appellant.

No. 06-1339

United States of America,

Plaintiff-Appellee,

Felipe Mendez, Jr.,

Defendant-Appellant.

Appeals from the

United States District

Court for the Southern

District of lowa.

* *£ & & He He He &

* &£ & & & KH F

App. 2

No. 06-1572

United States of America,

Plaintiff-Appellee,

Cesar Daniel

Gascon-Guerrero,

+ eteeteeste & & &

Defendant-Appellant.

No. 06-2579

United States of America,

Plaintiff-Appellee,

Vv.

Sergio Santamaria,

* #8 &@ & & &

Defendant-Appellant.

Submitted: March 14, 2007

Filed: July 5, 2007

Before MELLOY, SMITH, and BENTON, Circuit Judges.

MELLOY, Circuit Judge.

Four defendants in a drug distribution conspir-

acy appeal their convictions and sentences resulting

App. 3

from a joint trial. Arguments on appeal include

claims that: there was insufficient evidence to sup-

port the convictions; an attorney labored under a

conflict-of-interest; a Terry stop was constitutionally

unreasonable and evidence found as a result of the

stop should have been suppressed; drug quantity

calculations at sentencing were clearly erroneous;

prior convictions were improperly used to enhance

sentences; and a “willful blindness” instruction was

improperly submitted to the jury while a “single vs.

multiple conspiracy” instruction was not. We affirm

the judgment of the district court.’

I. Background

We present the facts in a light most favorable to

the verdicts, drawing all reasonable inferences from

the evidence that support the jury’s verdicts. United

States v. Cannon, 475 F.3d 1013, 1016 (8th Cir. 2007).

Details surrounding the investigation and events

leading to the defendants’ arrests were introduced at

the joint trial of the four defendants largely through

the testimony of officers engaged in investigation of

the conspiracy. Co-conspirators who pleaded guilty

and agreed to cooperate with the government testified

as te their respective roles and provided details about

the workings of the conspiracy and the roles of the

present four defendants within the conspiracy. In

'The Honorable Robert W. Pratt, Chief Judge, United

States District Court for the Southern District of Iowa.

App. 4

addition, defendant Felipe Mendez, Jr. (“Mendez”),

testified, and a number of inmates housed with the

defendants relayed statements the defendants had

made while incarcerated.

Officers began investigating a suspected drug

distribution conspiracy in December 2001. On Janu-

ary 2, 2003, officers stopped a white BMW containing

twenty-two pounds of methamphetamine wrapped in

eighteen packages. Walter Cruz DeJesus (“DeJesus”)

was driving the BMW, and his girlfriend, Jessica

Johnson (“Johnson”) was the passenger. DeJesus and

Johnson were traveling from California to Iowa, and

the BMW was registered in the name of DeJesus’s

mother-in-law. It was discovered that the registration

for the BMW had only recently been transferred to

DeJesus’s mother-in-law and that it previously had

been registered in another woman’s name. The other

woman was the wife of Mendez. DeJesus and Johnson

stated that Mendez had enlisted the two of them to

drive methamphetamine from California to Iowa and

that they had made three to five prior deliveries with

loads weighing between fifteen and twenty-five

pounds each.

Later, in summer 2004, officers learned from

confidential informants that a woman in Des

Moines, Kathleen Boatwright (“Boatwright”), was a

supplier of methamphetamine. Officers used the

confidential informants to make a series of con-

trolled purchases of methamphetamine from Boat-

wright and her boyfriend, Cody Cannon (“Cannon”),

using money with recorded serial numbers. After the

App. 5

controlled purchases, officers obtained a search

warrant for Boatwright’s home. Before officers exe-

cuted the search warrant, one of the confidential

informants encountered Boatwright at a store where

she was seen purchasing a suitcase and where she

told the confidential informant she would be traveling

to California. The confidential informant believed the

trip to California was for the purpose of obtaining

methamphetamine. Officers decided to wait to exe-

cute the warrant.

On July 8, 2004, still within the permissible

window of time for executing the warrant, the confi-

dential informant told officers that Boatwright had

returned from California with a Hispanic male the

informant believed to be Boatwright’s source. Officers

then conducted surveillance of Boatwright’s home in

preparation for execution of the warrant. Officers

observed a Hispanic male on the front porch of

Boatwright’s home and saw this man and a second

Hispanic male leave Boatwright’s home in a red

Volkswagen Jetta. Officers then stopped the red Jetta

and questioned and eventually arrested the two

occupants of the car. While officers were processing

the men from the Jetta, other officers executed the

aL 4?

search warrant at Buaiwright’s home.

Mendez was. the driver of the red Jetta, and

defendant Sergio Santamaria (“Santamaria”) was the

passenger. Mendez told the officers he had a valid

driver’s license, but proceeded to hand the officers a

California identification card bearing the name

Anthony Gonzales. Officers saw a California driver’s

App. 6

license in Mendez’s wallet. The driver’s license, like

the identification card, had a picture of Mendez. The

driver’s license listed the name Felipe Mendez. San-

tamaria gave the officers an Iowa driver’s license that

bore his correct name. At the time of the traffic stop,

officers were not certain of Mendez’s and San-

tamaria’s true identities, so they placed a call to

Immigration and Customs Enforcement (“ICE”) and

obtained consent from Mendez and Santamaria to

move them and the Jetta to a nearby police station. A

subsequent criminal history check showed prior

arrests and deportations for Santamaria in the name

of Jaime Cabrera. The car was not registered to

either of the men, and both men appeared to be in the

United States illegally. Eventually, it was determined

that Mendez and Santamaria were present illegally,

and ICE entered detainers against them. The officers

impounded the Jetta, conducted an inventory search

of the Jetta, and searched the two men. The search of

the Jetta revealed $4,800 in cash, $740 of which bore

serial numbers used in the controlled purchases from

Boatwright. It was also discovered that Mendez had

three cell phones and Santamaria had two cell

phones. Mendez also had the box top from a box of

plastic baggies in his pants.

When officers executed the warrant at Boat-

wright’s home, Boatwright, Cannon, and defendant

Cesar Daniel Gascon-Guerrero (“Gascon-Guerrero”)

were present. Gascon-Guerrero was in a bathroom

where officers found a small quantity of metham-

phetamine hidden in a dollar bill behind the toilet

App. 7

and a cell phone hidden atop a cabinet. A search of

the rest of home revealed five ounces of metham-

phetamine, four grams of marijuana, two digital

scales, drug notes, surveillance cameras, two loaded

handguns, and ammunition. Officers also found, in

the living room of Boatwright’s home, a cardboard box

of plastic sandwich bags missing a box top that

matched the box top found in Mendez’s pants.

After agreeing to cooperate, Boatwright testified

that she met defendant Isabel Ramon Rodriguez

(“Rodriguez”) in late 2002 and soon began selling

methamphetamine that he supplied. Boatwright

believed Rodriguez obtained his methamphetamine

from California because she observed on at least one

occasion that he traveled to California when he ran

out of drugs, and when he returned, he was again

able to supply methamphetamine.

In February 2003, Rodriguez was arrested in Des

Moines on manslaughter charges. At that time,

Boatwright owed Rodriguez money for drugs she had

received from him on credit. After Rodriguez’s arrest,

Boatwright received phone numbers for Mendez and

Santamaria through Rodriguez. The number for

Santamaria did not work, but the number for Mendez

was accurate. Boatwright called Mendez to tell him of

the arrest, and Boatwright was present when a man

that Rodriguez had brought to Iowa from California

used her phone to speak with Mendez. Boatwright

then maintained contact with Mendez.

App. 8

Eventually, Mendez sent Santamaria to Iowa,

Santamaria provided methamphetamine to Boat-

wright, and Boatwright sold the methamphetamine.

This continued until Boatwright gambled with the

proceeds of her sales and was unable to pay San-

tamaria and Mendez. The two men cut off Boat-

wright’s supply for awhile, but they eventually

resumed their relationship with her. On at least two

occasions, Boatwright traveled to California at

Mendez’s request and returned from California in a

black Blazer provided by Mendez. Both times, the

Blazer carried methamphetamine, and Mendez sent

Gascon-Guerrero with Boatwright to ensure that the

methamphetamine reached Des Moines. Both times,

Mendez and Santamaria were with Boatwright in

California and traveled to Iowa separately from

Boatwright and the black Blazer. One of the trips to

Iowa was the trip immediately preceding execution of

the search warrant at Boatwright’s home.

Ultimately, the government brought conspiracy

charges against Rodriguez, Mendez, Gascon-

Guerrero, Santamaria, and others. These four defen-

dants pleaded not guilty and proceeded to a joint

trial. Additional co-conspirators who testified at trial

included DeJesus, Johnson, Carlos Gil (“Gil”), Au-

gustin Sandoval Rodriguez, Jeffrey Robert Behle, and

Philip Gatewood. These testifying co-conspirators

explained their relative roles and contacts within the

conspiracy, the frequency and quantity of drugs they

had personally handled, the vehicles and locations

used by the conspirators, and their observations of

App. 9

the relationships between the conspirators. We de-

scribe testimony from each below as relevant to the

various defendants’ arguments concerning the suffi-

ciency of the evidence. In general, the witnesses all

described the conspiracy in a consistent manner: they

placed Mendez at the center with Santamaria also

holding a key position. Rodriguez was a lower-level

conspirator whose activities were interrupted when

he was arrested on manslaughter charges. Finally,

Gascon-Guerrero’s role, as described by Boatwright,

was as that of a trusted shepherd sent by Mendez to

ensure that shipments of drugs from California

reached Iowa safely.

Mendez has been represented by several different

attorneys in relation to this matter. One of his attor-

neys was F. Montgomery Brown (“Attorney Brown”),

who entered an appearance on October 12, 2004.

Another attorney entered an appearance to represent

Mendez on October 20, 2004. Attorney Brown moved

to withdraw from the case, and the court granted his

motion on November 2, 2004. At the time of the joint

trial of the four present defendants, Attorney Brown

was representing Gil, and Gil testified against

Mendez over the objection of Mendez’s trial counsel.

Mendez argues on appeal that the alleged conflict of

interest surrounding Attorney Brown’s representation

of Gil and Mendez in the same matter should have

precluded Gil from testifying. In particular, Mendez

attacks his own trial counsel’s performance alleging

trial counsel should have pursued the issue of the

possible conflict involving Gil and Attorney Brown

App. 10

more vigorously. We discuss this issue in more detail

below.

Finally, the jury instructions actually given to the

jury included a willful blindness instruction that did

not reference any one of the four defendants in par-

ticular. There were no objections to the use of this

instruction. Also, the court did not give the jury a

“single vs. multiple” conspiracy instruction, and no

party objected at trial to the absence of such an

instruction. On appeal, Santamaria challenges the

willful blindness instruction and Gascon-Guerrero

challenges the absence of a single vs. multiple con-

spiracy instruction. We address each defendant’s

various arguments in turn, with additional facts

presented as relevant to the arguments.

Il. Discussion

A. Santamaria

1. Santamaria: Sufficiency of the Evidence

Santamaria argues the evidence is insufficient to

support his conviction. To the contrary, the evidence

against him is very substantial. At least four wit-

nesses testified consistently as to Santamaria’s

actions and role in the conspiracy. This testimony

established the elements necessary to prove the

conspiracy charges, and the jury accepted this testi-

mony as credible. See Cannon, 475 F.3d at 1020 (“To

convict ... of conspiracy, the government had to prove

that there was an agreement... that [the defendant).

knew of this agreement, and that [he] intentionally

App. 11

joined this agreement.”) (citation and internal quota-

tion marks omitted). Further, officers stopped San-

tamaria leaving Boatwright’s home in the red Jetta

with the money from the controlled purchases and a

multitude of cell phones. To the extent Santamaria

bases his sufficiency-of-the-evidence challenge on the

jury’s assessment of the witnesses’ credibility, such

determinations are “virtually unreviewable” on

appeal, and we will not disturb the jury’s assessment

in this case. United States v. Davis, 471 F.3d 938, 948

(8th Cir. 2006) (quotation marks and internal citation

omitted).

The testimony regarding Santamaria was as

follows. First, Boatwright testified extensively as to

her dealings with Santamaria. She identified San-

tamaria in court and stated that she knew him as

“Rudy.” She stated that, after Rodriguez was arrested

for manslaughter and after she contacted Mendez,

Mendez arranged for her to meet Santamaria at a

restaurant in Des Moines. There, she met San-

tamaria for the first time and gave him money that

she had owed to Rodriguez. She also testified that

Rodriguez asked Mendez to supply her with metham-

phetamine to sell. When she talked to Mendez about

obtaining drugs for sale, Mendez sent Santamaria to

her home with two pounds of methamphetamine.

Boatwright also testified that, after she finished

selling the methamphetamine that Mendez fronted

her through Santamaria, she paid to Santamaria the

price quoted by Mendez. Boatwright described this

scenario as a repeated event and explained that she

App. 12

eventually became indebted to Mendez and San-

tamaria because she gambled away the proceeds of

her sales and failed to pay for the fronted metham-

phetamine. Mendez then summoned her to California

where Santamaria met her at the airport, drove her

to a hotel, and stayed with her until she met with

Mendez. On two separate California trips, she re-

turned to Iowa in a black Blazer accompanied by

Gascon-Guerrero. Santamaria, whom she had been

with in California prior to driving to Iowa, then

arrived in Des Moines. Upon her return to lowa after

one trip, Boatwright met Santamaria at a Des Moines

hotel. After the other trip, Santamaria and Mendez

came to her home.

Boatwright’s testimony places Santamaria in a

pivotal role within the conspiracy, helping to coordi-

nate the trafficking and distribution of metham-

phetamine between California and lowa, traveling

between the two states, and meeting with Boatwright

in both states. Cruz, Johnson, and Gatewood also

testified against Santamaria, describing a role for

Santamaria in the conspiracy that was consistent

with Boatwright’s testimony. This testimony, com-

bined with the evidence collected from Santamaria

and the red Jetta, more than suffices to support the

tree wads nt

JMAy OS YCsuser,

2. Santamaria: Willful Blindness Instruction

The court submitted a willful blindness instruc-

tion to the jury without specific reference to any one

App. 13

of the four defendants, and no defendant objected

generally or asked that the instruction be limited.

Because there was no objection or request to limit the

instruction, we review only for plain error. United

States v. Bamberg, 478 F.3d 934, 939 (8th Cir. 2007).

“Plain error only exists if (1) there was an error, (2)

the error was plain, (3) the error affected [the defen-

dant’s] substantial rights, and (4) a failure to grant

relief would seriously affect the fairness, integrity, or

public reputation of judicial proceedings.” United

States v. Falcon, 477 F.3d 573, 577 (8th Cir. 2007)

(citation and internal quotation marks omitted).

The willful blindness instruction in this case was

appropriate because one of Santamaria’s co-

defendants, Gascon-Guerrero, claimed ignorance of

the conspiracy. As explained below, however, the

evidence strongly demonstrated that Gascon-

Guerrero would have to have been deliberately igno-

rant not to appreciate the existence and activities of

the conspiracy. See United States v. Florez, 368 F.3d

1042, 1044 (8th Cir. 2004) (“A willful blindness in-

struction is appropriate when the defendant asserts a

lack of guilty knowledge, but the evidence supports

an inference of deliberate ignorance.”) (citation and

internal quotation marks omitted). Further, the

government did not argue at closing that wiliful

blindness was applicable to Santamaria. Where a

willful blindness instruction is appropriate as to at

least one of multiple co-defendants, we do not believe

that a trial court’s failure to sua sponte limit the

willful-blindness instruction to a particular defendant

App. 14

generally rises to the level of plain error. Further,

even if we found error on the present facts, we would

not find that any such error affected Santamaria’s

substantial rights given the overwhelming evidence

of his guilt. See United States v. Noske, 117 F.3d 1053,

1059 (8th Cir. 1997) (finding no prejudice to a defen-

dant in the giving of a willful blindness instruction

where the instruction was appropriate as to another

defendant, there was no request to limit the instruc-

tion, and the evidence against the defendant was

“overwhelming”.

3. Santamaria: Sentence Enhancement/

Predicate Felonies

The district court found that Santamaria had two

prior felony drug convictions and sentenced San-

tamaria to life imprisonment in accordance with 21

U.S.C. §§ 841(b1XA) and 851. The two prior felony

drug convictions were a 1991 conviction in San Jose,

California, for felony possession of marijuana with

intent to sell, and a 1999 conviction in Los Angeles for

possession of cocaine base with intent to sell. San-

tamaria argues that certified records used to prove

these prior convictions fail to show (1) that he was

represented by. or waived his right to, counsel in

relation to the 1991 conviction, or (2) that the 1999

conviction which resulted in probation rather than

imprisonment was, in fact, a “final” conviction as

required under 21 U.S.C. § 841(b)(1)(A).

App. 15

As to the first argument, 21 U.S.C. § 851(e)

places a five-year limitation on a defendant’s ’ability

to collaterally challenge a prior conviction that the

government seeks to use for a federal sentencing

enhancement. Jd. (“No person who stands convicted of

an offense under this part may challenge the validity

of any prior conviction alleged under this section

which occurred more than five years before the date

of the information alleging such prior conviction.”).

This five-year limitation, however, does not apply to

claims that a defendant’s predicate conviction oc-

curred in violation of the defendant’s right to counsel.

Custis v. United States, 511 U.S. 485, 494-96 (1994).

Accordingly, even though the 1991 conviction was

more than five years old, Santamaria is not time-

barred from proving it infirm for use as predicate

felony.’

Santamaria’s challenge fails, instead, because he

did not meet his burden of proof. Congress clearly

provided that a defendant may challenge a prior

conviction as “obtained in violation of the Constitu-

tion of the United States,” but Congress chose to

place on the defendant rather than the government

“the burden of proof by a preponderance of the evi-

dence on any issue of fact raised [in the challenge].”

21 U.S.C. § 851(cX2). Santamaria was careful below,

? As to the 1999 conviction, Santamaria does not present a

collateral challenge. Rather, he contests the very existence of a

qualifying final conviction. Accordingly, the five year limitation

does not apply.

App. 16

in his appellate brief, and in oral argument to this

panel, to avoid actually claiming that he was de-

prived of counsel in 1991. Rather, he argues only that

the certified record of his conviction fails to show that

he was represented by counsel or that he waived his

right to counsel. In fact, his argument on this issue in

his brief concludes, “Jf Santamaria was not repre-

sented by counsel for the subject offense, the offense

cannot be used to trigger the mandatory life sen-

tence.” (Emphasis added). Santamaria’s reluctance to

actually claim there was an absence of counsel in

1991 strongly suggests that this argument amounts

to form over substance. In any event, a complete

failure to allege the absence of counsel falls far short

of meeting the factual burden of proof imposed on

Santamaria by § 851(c)(2).

As to the 1999 conviction, Santamaria argues

there was no final judgment under state law because

he received probation and a suspended sentence. As a

result, he argues, there was no “prior conviction[{] for

a felony drug offense.” 21 U.S.C. § 841(bX1\A). The

facts surrounding the California proceedings were as

follows. Santamaria pleaded guilty to the California

cocaine charge on June 14, 1999, and was sentenced

to thirty-six months of probation and ninety days of

imprisonment. On October 10, 2001, his. probation

was modified and he was ordered to complete 80

hours of community service. On July 10, 2002, his

probation was revoked, and on July 14, 2002, he was

arrested on a bench warrant and ordered to attend an

anger management meeting. On August 26, 2002, the

App. 17

court reinstated his probation. Based on these facts,

we believe that Santamaria’s 1999 guilty plea and

subsequent proceedings in California qualify as a

final conviction under § 841(bX1\A). See United

States v. Slicer, 361 F.3d 1085, 1086-87 (8th Cir. 2004)

(applying federal law to find that probation and a

state’s suspended imposition of sentence qualified as

a final conviction under § 841(b)(1)(A)); United States

v. Maxon, 339 F.3d 656, 658-59 (8th Cir. 2003) (apply-

ing federal law to determine whether there was a

qualifying predicate); United States v. Franklin, 250

F.3d 653, 665 (8th Cir. 2001) (same); United States v.

Ortega, 150 F.3d 937, 948 (8th Cir. 1998) (stating that

federal rather than state law determines whether a

prior proceeding resulted in a qualifying predicate

under § 841(b)1)(A)).

In a separate challenge also related to sentenc-

ing, Santamaria argues that the district court

impermissibly looked beyond the statutory elements

of his prior convictions to determine that the underly-

ing crimes were “felony drug offense[s].” 21 U.S.C.

§ 841(b1\(A). This argument is without merit. Here,

the information necessary to determine the nature of

the predicate offenses was contained in the certified

records of the convictions. Under Shepard v. United

States, 544 U.S. 13 (2005), a sentencing court is not

constrained to look only at the statutory elements of

the offense, but may look to the “terms of the charg-

ing document, the terms of a plea agreement or

transcript of colloquy between the judge and defen-

dant ... or to some comparable judicial record of this

App. 18

information.” Jd. at 26. The district court in this case

simply undertook no impermissible inquiries in the

course of determining that Santamaria’s prior convic-

tions for possessing marijuana with the intent to sell

and possessing cocaine base with the intent to sell

were qualifying prior “felony drug offense[s}.” 21

U.S.C. § 841(b)(1)(A).

B. Gascon-Guerrero

1. Gascon-Guerrero: Sufficiency of the Evi-

dence

Gascon-Guerrero challenges the sufficiency of the

evidence to support his conviction. In particular, he

argues that the evidence proved merely that he was

present, not that he had knowledge of, or participated

in, a conspiracy. His arguments are without merit.

Gascon-Guerrero was arrested when found in the

bathroom of Boatwright’s residence during the offi-

cers’ execution of the search warrant. Hidden with

him in the bathroom were a cell phone and small

quantity of methamphetamine wrapped in a dollar

bill. Boatwright testified that Mendez sent Gascon-

Guerrero along to accompany her on two separate

trips from California to lowa to make sure she and

the drugs that were hidden in the Blazer arrived

safely. Upon arriving in Iowa on the first trip, Gas-

con-Guerrero waited with Boatwright until instructed

to meet with Santamaria at a Des Moines-area motel.

He then took the Blazer and Boatwright to the motel

to meet with Santamaria. Later, he drove the Blazer

BEST AVAILABLE COPY

———————————

App. 19

and Boatwright back to Boatwright’s residence, left

again with the Blazer, and returned a short time later

with two pounds of methamphetamine for Boatwright

to sell. Following the second California-to-lowa trip

that Gascon-Guerrero took with Boatwright, Mendez

and Santamaria took the Blazer from Boatwright’s

home while Boatwright and Gascon-Guerrero waited.

Mendez and Santamaria returned shortly thereafter

with '4 pound of high purity “ice” methamphetamine

and '/ pound of lower purity Mexican methampheta-

mine.

The nature of Gascon-Guerrero’s actions, as

described by Boatwright and as corroborated by

Gascon-Guerrero’s presence at the residence with the

hidden phone and methamphetamine when officers

executed sexecuted the search warrant, provide

sufficient support for the jury's determination.

2. Gascon-Guerrero: Multiple Conspiracy/

Single Conspiracy Instruction

Gascon-Guerrero challenges the district court’s

failure to offer a “single conspiracy vs. multiple

conspiracy” jury instruction. Gascon-Guerrero neither

requested such an instruction nor objected to its

absence, so our review is for plain error. Bamberg,

478 F3d at 939. Here, there was no error in the

absence of such an instruction.

We have said that:

A single conspiracy is composed of individu-

als sharing common purposes or objectives

App. 20

under one general agreement. A single con-

spiracy may exist even if the participants

and their activities change over time, and

even if many participants are unaware of, or

uninvolved in, some of the transactions. Fur-

ther, the agreement need not be explicit, but

may be tacit, based upon the actions of the

defendant.

United States v. Smith, 450 F.3d 856, 860 (8th Cir.

2006) (internal citations and quotation marks omit-

ted). The government’s theory of the case was that

Mendez and Santamaria were at the center of a

single, “wheel and spoke” conspiracy to distribute

methamphetamine with the other co-conspirators

involved to varying degrees in different aspects of the

transportation, delivery, and sale of the drugs. The

evidence presented against Gascon-Guerrero consis-

tently described a conspiracy to deliver and distribute

methamphetamine from California to the Des Moines

area. In United States v. Cubillos, 474 F.3d 1114, 1118

(8th Cir. 2007), we stated that to determine whether

there is one or more conspiracies, “we consider factors

such as ‘the nature of the activities, the location

where the alleged events of the conspiracy occurred,

the identity of the co-conspirators, and the time

frame.” /d. (quoting United States v. Burns, 432 F.3d

856, 863 (8th Cir. 2005)). Here, there were no allega-

tions of a separate conspiracy with a separate pur-

pose, separate activities, or separate locations, and

the evidence supported the government’s single

conspiracy theory. It is not necessary that ail co-

conspirators know one another or collavorate with

App. 21

every other member of a conspiracy for there to be a

single conspiracy. See United States v. Oseby, 148 F.3d

1016, 1024 (8th Cir. 1998) (“‘{I]t is not necessary to

show that all the conspirators were involved in each

transaction or that all the conspirators even knew

each other.”) (quoting United States v. Rosnow, 977

F.2d 399, 405 (8th Cir. 1992)).

3. Gascon-Guerrero: Ineffective Assistance

of Counsel

Gascon-Guerrero’s trial counsel decided not to

cross-examine Boatwright, and Gascon-Guerrero

alleges ineffective assistance of counsel based on this

decision. We note initially that defense counsel for the

other defendants cross-examined Boatwright and

brought issues relevant to her credibility to light for

the jury. Gascon-Guerrero does not suggest that

cross-examination by the other attorneys was flawed

or ineffective or that there were additional areas of

inquiry his own counsel could have or should have

pursued. Gascon-Guerrero also does not explain how

he was differently situated from the other defendants

for the purpose of attacking Boatwright’s credibility

in a manner that would have been unique to Gascon-

Guerrero’s case. That having been said, a claim of

ineffective assistance is not generally cognizable on

direct appeal unless the record relevant to the claim

of ineffectiveness is fully developed “or where the

result would otherwise be a plain miscarriage of

justice.” United States v. Lewis, 483 F.3d 871, 873 n.2

(8th Cir. 2007) (internal quotation marks and citation

App. 22

omitted). No record has been developed in this case to

explain how the alleged ineffectiveness might have

caused prejudice to Gascon-Guerrero, we find no risk

of a miscarriage of justice, and Gascon-Guerrero

largely appears to have raised this issue to ensure its

preservation for a collateral attack. As such, we will

not address this issue further. ’

4. Gascon-Guerrero: Drug Quantity Deter-

mination

The district court found Gascon-Guerrero respon-

sible for at least fifteen kilograms (slightly over

thirty-three pounds) of methamphetamine and sen-

tenced him to 200 months’ imprisonment to be fol-

lowed by 60 months of supervised release. As a

conspirator, Gascon-Guerrero is responsible for the

quantity of drugs involved in the conspiracy that was

reasonably foreseeable in light of his agreement to

participate in the conspiracy:

In order to attribute a quantity of drugs to a

defendant, the sentencing court is required

to find by a preponderance of the evidence

that the activity involving those drugs was in

furtherance of the conspiracy and either

known to that defendant or reasonably fore-

seeable to him. In a drug conspiracy-case, the

district court may consider amounts from

drug transactions in which the defendant

was not directly involved if those dealings

were part of the same course of conduct or

scheme.

App. 23

United States v. Rodriguez, 484 F.3d 1006, 1014 (8th

Cir. 2007) (quotation marks and internal citations

omitted). Given this rule, it matters not that only a

small quantity of methamphetamine was found with

Gascon-Guerrero in the bathroom when officers

executed the search warrant.

Gascon-Guerrero was well positioned within the

conspiracy to appreciate the scope of the conspiracy

and the quantities involved. He was shown to be a

trusted shepherd who could be relied upon to ensure

other conspirators made it securely to their destina-

tions. He was neither a one-time mule nor an igno-

rant patsy. Regarding activities directly involving

Gascon-Guerrero, there were repeated trips between

California and Iowa with Boatwright. In Iowa, Gas-

con-Guerrero left Boatwright’s residence with San-

tamaria in the Blazer and returned with drugs. It is

reasonable to presume, as Boatwright presumed, that

Gascon-Guerrero and Santamaria extracted the

drugs from their hiding place in the Blazer. These

actions demonstrate a position within the conspiracy

with adequate exposure to information about the

conspiracy to make more than Gascon-Guerrero’s own

activities reasonably foreseeable to Gascon-Guerrero.

Other co-conspirators, including Cruz and John-

son, testified consistently as to the quantities in-

volved in their own cross-country trips (fifteen to

twenty-five pounds per trip for five trips). In addition,

Jeff Behle and Philip Gatewood were testifying co-

conspirators who claimed to have been involved with

the breaking-down of vehicles and extraction of drugs

App. 24

from transport vehicles. These co-conspirators testi-

fied consistently as to repeated shipments in the

same weight range. Although much of this testimony

described shipments in a time frame preceding the

evidence of Gascon-Guerrero’s involvement, the

testimony clearly demonstrates shipment size and

transportation techniques consistent with Boat-

wright’s testimony. The witnesses’ testimony, taken

together, is adequate to show that the conspiracy

involved at least fifteen kilograms and that this

quantity was reasonably foreseeable to Gascon-

Guerrero.

C. Rodriguez

Rodriguez argues only that the evidence was

insufficient to support his conviction. For the reasons

explained above, including Boatwright’s testimony

regarding Rodriguez’s role in the conspiracy and his

role in introducing her to Mendez and facilitating her

receipt of drugs from Mendez and Santamaria, his

arguments are without merit. The evidence was more

than sufficient to support the jury’s verdict as to

Rodriguez.

D. Mendez

1. Mendez: Reasonableness of the Terry Stop/

Seizure

Mendez first challenges the officers’ stop of the

red Jetta. Mendez argues the stop was based solely

on race and, as such, was unreasonable and in

App. 25

violation of his Fourth Amendment protections

against an unreasonable seizure.”

Regarding the initial stop, we find that there was

reasonable suspicion for an investigatory stop as

required under Terry v. Ohio, 392 U.S. 1, 30 (1968).

See United States v. Bell, 480 F.3d 860, 863 (8th Cir.

2007) (applying the Terry standard of reasonable

suspicion to an investigatory traffic stop where the

officer possessed information from a reliable infor-

mant’s tip and where a detective had verified portions

of the tip through surveillance prior to the stop). In

claiming that the stop was based solely on race,

Mendez mischaracterizes the scope of the informa-

tion underlying the officers’ reasonable suspicion.

Officers possessed all the information that supported

the issuance of the search warrant for Boatwright’s

residence, including the repeated controlled pur-

chases, Boatwright’s purchase of luggage and round-

trip travel to California, and the claim by the confi-

dential informant that Boatwright had returned

from California with a Hispanic male believed to be

her supplier. Armed with this information, officers

> Mendez appears to challenge only the initial, investigatory

stop, not the expansion or duration of the stop. In fact, any such

challenge would be wholly without merit because suspicion of

criminal activity grew rapidly from the initial stop and because

Mendez consented to the officer’s request to move the investiga-

tion to a police station. See United States v. Gomez Serena, 368

F3d 1037, 1041 (8th Cir. 2004) (holding that the expansion or

extension of stop may be permissible if supported by developing

or expanding level of suspicion).

App. 26

surveilled Boatwright’s home, observed a Hispanic

male on the front porch, and observed that man and

another Hispanic male leave the residence in the red

Jetta. Based on the totality of this information, it

cannot be said that officers stopped the red Jetta

merely because a Hispanic person was present, nor

can it be said that the officers lacked reasonable

suspicion. Although race was an identifying charac-

teristic actually used by the officers, it was not the

only factor officers relied upon, and the present case

is not an example of racial profiling, as suggested by

Mendez. See United States v. Thomas, 480 F.3d 878,

882 (8th Cir. 2007).

2. Conflict of Interest Regarding Attorney

Brown

When the government offered Gil as a witness and

commenced direct examination, Mendez’s actual trial

counsel, Timothy McCarthy (“Attorney McCarthy”),

objected at a sidebar. Attorney McCarthy chal!enged

the use of Gil as a witness, alleging that Attorney

Brown’s temporary, pre-trial representation of Mendez,

coupled with Attorney Brown’s representation of Gil,

creat 1 a conflict of interest. The court determined

during the sidebar that Gii couid testify, subject to

possible exclusion, and that a record would be made

after-the-fact to address the possible conflict.

In direct testimony and on cross-examination, Gil

explained that he pleaded guilty to conspiracy to

distribute methamphetamine without a written plea

App. 27

agreement. He had been sentenced to the statutory

minimum for his offenses, 120 months’ imprisonment,

and was already serving his sentence by the time of

Mendez’s trial. Gil testified that he met Mendez in a

Des Moines-area bar, began receiving one to two

pound packages of methamphetamine from Mendez,

always met with Mendez on the east side of Des

Moines, saw Mendez in a black Mercedes but in no

other vehicles, and received the methamphetamine

on credit with money due to Mendez after resale of

the drugs. Gil testified that he sold methampheta-

mine from Mendez for a three to four month period

after Christmas 2003.

When Gil was done testifying and the jury was

excused for a break, Attorney McCarthy was given

the opportunity to question Gil. Attorney McCarthy

quickly focused on the interaction between Attorney

Brown and Gil and asked Gil if he was willing to

waive his attorney-client privilege and discuss infor-

mation exchanged with Attorney Brown. Attorney

McCarthy explained to the district court that the

potential for prejudice to Mendez in this situation

was the possibility that Attorney Brown had obtained

privileged, damaging information from Mendez and

subsequently breached his duty of confidentiality

towards Mendez by sharing that information with Gil

for use in Gil’s testimony against Mendez. Attorney

McCarthy, the prosecutors, and the district court

agreed that any further questioning along these lines

and any waiver of privilege by Gil could not take

place without the presence of Attorney Brown and

App. 28

without giving Gil the opportunity to discuss the

possible waiver with Attorney Brown. As a result, the

district court decided to halt the offer of proof related

to Gil and resume at a later date when Attorney

Brown could be made to appear.

At the appointed date and time, when the court

asked Attorney McCarthy if he wished to resume

questioning Gil outside of the presence of the jury, the

following exchange took place:

THE COURT: Mr. McCarthy, my under-

standing was you didn’t need to make any

record with respect to either Mr. Brown or

Mr. Gil, is that correct?

MR. McCARTHY: That is correct, Your

Honor. I’m going to let the Carlos Gil issue go

at this time.

Later, in a motion for new trial, Mendez argued

that Attorney McCarthy provided ineffective assis-

tance by failing to make a proper record regarding

the possible conflict involving Attorney Brown’s

representation of Mendez and Gil. Mendez argued

that Attorney Brown’s dual representation presented

an actual conflict of interest and required relief

without a need to show prejudice. The district court

rejected Mendez’s arguments, finding that it was

necessary to prove prejudice under Strickland uv.

Washington, 466 U.S. 668, 692 (1984), and that the

presumed prejudice rule of Cuyler v. Sullivan, 446

U.S. 335, 349 (1980) (holding that a showing of

Strickland-type prejudice is not required where a

App. 29

defendant demonstrates an actual conflict that ad-

versely affected counsel’s performance), did not apply

because there was no actual conflict of interest. The

district court’s finding was based on the fact that

Mendez’s own trial counsel, Attorney McCarthy, was

not alleged to have labored under any sort of conflict.

Rather, the conflict related to Attorney Brown. Be-

cause the presumed prejudice standard did not apply,

relief was contingent upon a showing of prejudice. As

to the issue of prejudice, the district court ultimately

concluded, “[als shown by the. . . evidence .. . even if

the Court disallowed Gil’s testimony, there is no

reasonable probability the jury verdict would have

been different in this case.”

On appeal, Mendez renews his conflict of interest

argument, placing it in the context of an ineffective

assistance argument directed towards Attorney

McCarthy. Although, we generally do not address

such claims on direct appeal, Lewis, 483 F.3d at 873

n.2, we find no further development of the record is

necessary in this case to resolve Mendez’s claim of

ineffective assistance. Accordingly, we will address

this claim now, on direct appeal. In doing so, we

affirm for the same reasons as the district court,

namely: (1) there was no actual conflict; (2) a showing

of prejudice is therefore necessary for any grant of

relief; and (3) there was no prejudice in this case

because the evidence against Mendez was over-

whelming and Gil was, at most, a minor witness

whose testimony was cumulative with that of more

important witnesses.

App. 30

There was no actual conflict in this case because

Mendez received conflict-free assistance from Attor-

ney McCarthy. Mendez cites no authority, and we

have found none, in which the presumed prejudice

rule of Cuyler is extended to a situation involving a

defendant’s prior attorney in the absence of any

alleged conflict involving actuai trial counsel. There

is, however, authority from another circuit that is

analogous to the present situation and that strongly

suggests a showing of prejudice is required in

Mendez’s case. In English v. United States, 620 F.2d

150, 151-52 (7th Cir. 1980), the Seventh Circuit gave

short shrift to an argument similar to Mendez’s.

There, a defendant initially was represented by two

attorneys, counsel and co-counsel. Co-counsel ceased

the representation and began representation of a co-

defendant. The defendant claimed a conflict based on

the fact that co-counsel, who had actually represented

him in the same proceedings, switched and served the

co-defendant. The Seventh Circuit summarily dis-

missed the claim, finding that because the defendart

received conflict-free assistance from his own, actual

trial counsel, any actions taken by former co-counsel

could not create a conflict. See id. at 151 (“English

after all is not impugning the effectiveness of his own

anwunenl hast hic faemar anincoal ”

CUUMSUS . we MUU £445 2402S, VUES. «6 ee Je

This is not a case like Simmons v. Lockhart, 915

F.2d 372 (8th Cir. 1990), in which our court found an

actual conflict and applied the Cuyler standard to

examine whether there was “an actual and demon-

strable effect of the conflict ... not merely an abstract

App. 31

or theoretical one.” Simmons, 915 F.2d at 378. In

Simmons, a defendant’s actual trial counsel had

previously represented one of the prosecution’s wit-

nesses. There, we stated that the actual conflict

“fairly leaps off the page.” Jd. at 377. We held, how-

ever, that it remained necessary to show “how {the]

defense [was] hurt by the fact that one of his trial

lawyers had previously represented the witness

{involved in the alleged conflict.]” Id. at 378. We

carefully reviewed the record of the trial and deter-

mined that the attorney who labored under an actual

conflict had made no tactical decisions nor performed

in any manner that suggested the conflict impaired

the defense. Jd.

The present case, in contrast, involves absolutely

no showing or suggestion of a conflict on the part of

the one attorney who actually represented Mendez at

trial and made all tactical decisions for Mendez at

trial. As such, we conclude that the presumed preju-

dice standard of Cuyler has no application to the

present facts. Rather, the traditional prejudice in-

quiry of Strickland applies, and it is necessary for

Mendez to “demonstrate a reasonable probability”

that the outcome of the proceedings would have been

different absent some ineffectiveness on the part of

Attorney McCarthy. Strickiand, 466 U.S. ai 654.

Here, as Mendez has consistently asserted to the

district court and to our court, the possibility of

prejudice lies in the abstract possibility that Attorney

Brown might have obtained damaging privileged

information from Mendez and the further abstract

App. 32

possibility that Attorney Brown might have passed

this information on te Gil. Mendez argues Attorney

McCarthy provided ineffective assistance by ceasing

his pursuit of this issue and that Attorney McCarthy’s

ineffectiveness caused prejudice. We disagree. We

find that it was well within the bounds of professional

judgment and discretion for Attorney McCarthy to

elect to stop his pursuit of this abstract chain of

potential prejudice, and as such, we find no ineffec-

tiveness on McCarthy’s part. The evidence against

Mendez was overwhelming: six cooperating co-

conspirators other than Gil testified consistently as to

Mendez’s role at the heart of the conspiracy. Four

inmates who had been confined with Mendez testified

as to statements Mendez made about his involvement

with methamphetamine trafficking. In addition,

Mendez was stopped leaving Boatwright’s home

shortly before execution of the search warrant, and he

was in the car that carried money used in the con-

trolled buy. Further, he carried in his pocket the box

top from a box of baggies that was found in the Boat-

wright residence with other drug paraphernalia.

Finally, Mendez himself testified and made many

statements that a reasonable jury could disbelieve

and which could permit the jury to conclude Mendez

was dissembiing to cover his guilt. Given this state of

the record, we believe that Mendez has not satisfied

either element of the Strickland test. Not only did

Mendez fail to show a level of prejudice that could

satisfy the “reasonable probability” standard of

Strickland, he failed to show that Attorney McCarthy

App. 33

performed in a deficient manner when deciding to let

the conflict issue go and cease his questioning of Gil.

3. Denial of the Motion for a New Trial

Mendez’s motion for a new trial was based on his

arguments concerning the Terry stop and the alleged

conflict. Given our resolution of these issues, we find

no error in the district court’s denial of the motion for

a new trial.

For the foregoing reasons, the judgment of the

district court is affirmed.

App. 34

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 06-1339

United States of America,

Appellee

Vv.

Felipe Mendez, Jr.,

Appellant

Appeal from U.S. District Court for the

Southern District of lowa — Des Moines

(4:04-cr-199 RP)

JUDGMENT

This appeal from the United States District

Court was submitted on the record of the district

court, briefs of the parties and was argued by counsel.

After consideration, it is hereby ordered and

adjudged that the judgment of the district court in

this cause is affirmed in accordance with the opinion

of this Court.

July 05, 2007

Order Entered in Accordance with Opinion:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

App. 35

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

UNITED STATES OF *

AMERICA, * 4:04-cr-199

Plaintiff, * MEMORANDUM AND

7 * ORDER ON DEFEN-

* DANT’S MOTION TO

FELIPE MENDEZ, JR., » SUPPRESS EVIDENCE

Defendant. *

Before the Court is a Motion to Suppress Evi-

dence filed by the Defendant, Felipe Mendez, Jr., on

August 9, 2004. Clerk’s No. 35. Also filed on the

Defendant’s behalf are a Supplemental Motion to

Suppress and an Amended Motion to Suppress.

Clerk’s Nos. 76 and 88. On August 10, 2004 a Grand

Jury, convened in the Southern District of Iowa,

delivered a one-count Indictment as to this Defendant

charging him with Conspiracy to Distribute Metham-

phetamine under 21 U.S.C. sections 846 and

841(b)(1)(A). Clerk’s No. 1. Subsequently, on Septem-

ber 15, 2004, the Government filed a Superseding

Indictment reflecting a change in the alleged starting

date of the conspiracy. Clerk’s No. 41.

The Government filed a timely Resistance to

Defendant’s motion (Clerk’s No. 42) and Memoran-

dum in Support. Clerk’s No. 78. At hearing on De-

cember 14, 2004, the Court received into evidence the

Application for a Search Warrant and the testimony

of Steven DeJoode, Special Agent with the Iowa

App. 36

Department of Safety, Division of Narcotics and

- Enforcement (“Agent DeJoode”). The matter is fully

submitted.

I. BACKGROUND

Mr. Parrish: “Well, following up on my

question, do you believe that based on your

investigation that you had reasonable suspi-

cion to stop any Hispanic male you saw leav-

ing the residence?”

Agent DeJoode: “Yes. Another Hispanic

male hypothetically would have departed the

residence, I would have taken the same ac-

tions.”

Hr’g Tr. at 57.'

On July 2, 2004, Agent DeJoode applied for and

obtained a search warrant, in Iowa state court, for a

residence shared by Kathleen Boatwright (“Boat-

wright”) and Cody John Cannon (“Cannon”), alleged

co-conspirators with the Defendant. Hr’g. Tr. at 8-9;

Superseding Indictment. Agent DeJoode had begun

an investigation of Boatwright and Cannon on or

about June 9, 2004. Hr’g Tr. at 9, 35; Warrant App. at

6. At the time, Agent DeJoode met with a cooperating

individual (“CI-1”), who informed Agent DeJoode that

methamphetamine could be purchased from Boat-

wright. Hr’g Tr. at 35. On June 22, 2004, and then

‘ The hearing citations refer to the Court’s Real Time

unedited transcript.

App. 37

again on June 30, 2004 Agent DeJoode orchestrated

methamphetamine purchases from Boatwright and

Cannon in proximity to their residence (“Residence”).

Id. at 9, 35-36; Warrant Aff. at 6. During his investi-

gation, Agent DeJoode conducted surveillance by

driving by the Residence in order to obtain license

plate numbers of visitors at the Residence. Hr’g Tr. at

9. CI-1 told Agent DeJoode that Boatwright had a

“Hispanic methamphetamine source from California,”

and that Boatwright often made trips to California to

procure methamphetamine. Id. at 35. CI-1 also told

Agent DeJoode that Boatwright would fly to Califor-

nia and return to Iowa with her “source” in two

separate vehicles. Jd. During Agent DeJoode’s reguiar

surveillance of the Residence prior to July 8, 2004, he

observed no Hispanic males in the area around the

Residence. Id. at 56.

On July 1, 2004, a second cooperating individual

(“CI-2”) informed Agent DeJoode that methampheta-

mine could also be purchased from Cannon. Id. at 37;

Warrant Aff. at 7. On the same date, Cannon met

with CI-2 to sell methamphetamine and lamented

about only being able to deliver one quarter ounce of

methamphetamine instead of the agreed upon

amount of one ounce. Jd.,; Warrant Aff. at 7. Cannon

then informed Ci-2 that more methamphetamine

would soon be available because “he would be receiv-

ing a large shipment of methamphetamine from a

Hispanic male from California.” Hr’g Tr. at 37. Later

on July 1, 2004, CI-1 told Agent DeJoode that Boat-

wright had purchased a suitcase and told Cl-1 she

App. 38

would be making another trip to California. Id. at 37-

38. On July 2, 2004, Agent DeJoode obtained the

search warrant. Jd. at 38. The search warrant affida-

vit contained no mention of the Defendant, the pas-

senger in the car the Defendant was driving, or any

reference to Hispanic males. Id. at 12. The affidavit

likewise contained no description of the vehicle the

Defendant was driving, a red Volkswagen Jetta. Id.

On July 8, 2004, CI-1 told Agent Dejoode that

Boatwright had returned to Des Moines. Id. at 38. In

addition, on that same day, CI-1 told Agent DeJoode

“that there was a Hispanic male at the house who the

informant believed was the California source of the

methamphetamine.” /d. at 39. Later on July 8, under

DeJoode’s direction, CI-1 telephoned Boatwright and,

in 2 recorded conversation, asked whether Boat-

wright had any methamphetamine. Id. Boatwright

informed CI-1 that she did and agreed to meet with

Cl-1 for the purpose of selling the methamphetamine.

Id. On July 8, 2004, Agent DeJoode, along with two

other law enforcement personnel, Detective Sean

Wissing (“Det. Wissing”) and Detective Curtis Pote

(“Det. Pote”) decided to execute the search warrant on

the Residence at 5:05 p.m. Jd. at 15.

As they approached the Residence at around 3:45

p.m., Det. Wissing noticed a red Volkswagen Jetta

(“Jetta”) in the driveway of the Residence. Jd. at 15-

16. As he drove by the front of the Residence, Agent

DeJoode also noticed a Hispanic male sitting on the

porch. Jd. at 40. A short while later, Detective Wissing

observed two Hispanic males get into the Jetta and

App. 39

drive away. Id. at 16-17, 43. As to the Jetta or the two

persons inside, Detective Wissing observed no illegal

or suspicious activity. Id. at 17. Agent Dejoode, along

with Det. Wissing and Det. Pote, each in separate

unmarked cars, followed the Jetta. Id. The law en-

forcement officers followed the Jetta for several city

blocks. Id. at 18. They observed that the driver of the

Jetta did not violate any traffic laws. Id. Agent De-

Joode had no reason to believe the two occupants of

the Jetta knew about the impending execution of the

search warrant and, thus, no reason to believe they

were running from law enforcement. Id. Notwith-

standing the lack of any observable traffic violation or

other illegal activity, Agent DeJoode decided to stop

the Jetta at approximately 3:50 p.m. Id. at 18-19, 41.

Agent DeJoode believed reasonable suspicion existed

based on “previous information that [a] Hispanic

male from California was involved.” Id. at 41; see also

id. at 57 (Agent DeJoode believed reasonable suspi-

cion existed to justify the seizure of any Hispanic

male leaving the Residence on July 8 or anytime

thereafter) (see quote supra).

Once stopped, Agent DeJoode approached the

Jetta and asked for identification. Id. at 20. The

Defendant, who was driving, produced a California

identification card with the Defendant’s picture and

the name “Anthony Gonzales.” Id. at 21, 42. The

Defendant told Agent DeJoode the identification card

belonged to his brother and then produced a Califor-

nia driver’s license. Id. at 21, 42-43. The driver’s

license also contained a photograph of the Defendant,

App. 40

but with the name “Felipe Mendez.” Jd. at 43. The

Jetta, with valid registration plates, was registered to

two Des Moines residents. Jd. The Defendant asked

Agent DeJoode what was happening and Agent

DeJoode responded by informing the Defendant he

was conducting an investigation. Jd. at 26. After some

questioning, the Defendant told Agent DeJoode he

had just left Cannon’s Residence and that he had

arrived in Des Moines the previous day, July 7, 2004.

Id. at 44. A criminal history and social security back-

ground check revealed that the Defendant had a

significant criminal history in California and that the

social security number on the Defendant’s identifica-

tion documents had last been issued prior to the

Defendant’s date of birth. Jd. At that point, Agent

DeJoode decided to enlist the help of the Bureau of

Immigration and Customs Enforcement (“BICE”). Id.

at 47.

The record is not entirely clear, but Agent De-

Joode also searched the Defendant at some time

during the stop. Jd. at 21. The search produced

$2,273 in cash and three cellular phones. Jd. Agent

DeJoode documented the phone information saved on

each of the phones, e.g., phone book information,

outgoing call numbers, incoming call numbers, etc.

id. at 22. Also seized was the Defendant’s wallet

containing photographs, identifications, credit bank

cards, and notes. Jd. at 22-23.

At some time during the stop, Agent DeJoode

asked the Defendant to join him in Agent DeJoode’s

car. Jd. at 26. Agent DeJoode asked the Defendant

App. 41

whether he would be willing to travel to a different

location to conduct the investigation further with the

assistance of an interpreter. Agent DeJoode also

asked for the Defendant’s consent to move the Jetta

by allowing one of the officers to drive it, in order to

avoid it being towed away. Id. at 31, 48-49. With or

without the Defendant’s consent, Agent DeJoode

intended to conduct the investigation at the nearby

Iowa State Patrol District One Headquarters in Des

Moines (“State Patrol Headquarters”), because Agent

DeJoode believed there was sufficient probable cause

to justify an arrest for the possession of fraudulent

documents. Id. at 32-33, 50-51. At approximately 4:20

p.m., Agent DeJoode and other officers arrived at the

State Patrol Headquarters with the Defendant, his

passenger, and the Jetta. Id. at 30. The Defendant

was eventually arrested for carrying fraudulent

documents. Id. at 31. The Defendant and passenger

were then taken to the BICE office in the Des Moines

federal building and, after an investigation, a federal

detainer was lodged against the Defendant and the

passenger. Id. at 53. The Defendant admitted to

immigration officials that he was in the country

illegally. Id. Subsequently, the Defendant was

charged under Iowa law for distribution of metham-

phetamine. Id.

The Jetta was inventoried. Id. at 24, 54-55. A

search of the Jetta produced two duffle bags contain-

ing men’s clothing and toiletries. Id. at 24. One of the

bags also contained $4,800 cash, $740 of which matched

preserialized currency used by Agent DeJoode in two

App. 42

prior methamphetamine transactions. Jd. at 24-25.

Agent DeJoode also discovered two black suitcases,

one large and one small, and another yellow duffel

bag. Id. at 25.

II. ANALYSIS

A. The Automobile Stop

Through his original motion to suppress and his

supplemental motion to suppress, the Defendant

argues that the Government agents had no reason-

able basis for stopping the Jetta. Of course, if the stop

was unreasonable, as Defendant contends, then the

subsequent pat-down of the Defendant, search of the

automobile, and arrest would necessarily be invali-

dated.

“An automobile stop is subject to the Fourth

Amendment imperative that the stop must be rea-

sonable.” See United States v. Ramos-Caraballo, 375

F.3d 797, 800 (8th Cir. 2004) (citing Whren v. United

States, 517 U.S. 806, 810 (1996)). “A vehicle stop is

reasonable if it is supported by either probable cause

to believe that a traffic violation has occurred, or an

articulable and reasonable suspicion that criminal

activity is afoot.” See Ramos-Caraballo, 375 F.3d at

800-801 (citing Delaware v. Prouse, 440 U.S. 648, 663

(1979)). “A stop is permissible only when officers are

aware of facts which, taken together with rational

inferences from these facts, reasonably warrant the

suspicion that the person stopped has been, is, or is

App. 43

about to be engaged in criminal activity.” United

States v. Rose, 731 F.2d 1337, 1342 (8th Cir. 1984).

Although, the investigation into whether reason-

able suspicion exists “requires a showing considerably

less than preponderance of the evidence, the Fourth

Amendment requires at least a minimal] level of

objective justification for making the stop.” See Illi-

nois v. Wardlow, 528 U.S. 119, 123-24 (2000) (stating

that an “officer must be able to articulate more than

an ‘inchoate and unparticularized suspicion or hunch

of criminal activity’”) (citing Terry v. Ohio, 392 U.S. 1,

27 (1968)); see also United States v. Lebrun, 261 F.3d

731, 733 (8th Cir. 2001) (considering significant that

a court consider the “view fof] the totality of the

circumstances through the perspective of an experi-

enced law enforcement officer trained in crime detec-

tion and acquainted with the behavior of criminals”).

“‘The relevant inquiry’ concerning the inferences and

conclusions a court draws [in making a reasonable

suspicion determination] ‘is not whether particular

conduct is innocent or guilty, but the degree of suspi-

cion that attaches to particular types of noncriminal

acts.” See Wardlow, 528 U.S. at 128 (citing United

States v. Sokolow, 490 U.S. 1, 10 (1989)) (Stevens, J.,

concurring in part and dissenting in part).

The Government concedes that no probable cause

existed based on a traffic violation, and that no

probable cause existed under the search warrant, to

stop the Defendant. Instead, the Government contends

reasonable suspicion existed to believe the persons in

the Jetta were involved in criminal activity. Over the

App. 44

course of questioning at hearing, Agent DeJoode

articulated six factors to support a reasonable suspi-

cion that the Defendant was connected to criminal

wright purchased drugs from a Hispanic source in

California; 2) the Hispanic source regularly traveled

back to Iowa with Boatwright after those purchases;

3) Boatwright had just returned from California after

a drug purchase; 4) a month-long surveillance re-

vealed no other Hispanic persons in the vicinity of the

Residence over that time period; 5) at least one

Hispanic male was in the Residence the day after

Boatwright returned from California; and 6) Agent

DeJoode believed that person was, in fact, Boat-

wright’s Hispanic methamphetamine source from

California.

At first impression, it appears the specter of

racial profiling casts its shadow over most of the

information articulated by Agent DeJoode. If race

were the only factor at play in deciding whether to

stop the Jetta, then this analysis would proceed no

further. See United States v. Weaver, 966 F.2d 391,

394 n.2 (8th Cir. 1992) (agreeing with the dissent

“that large groups of our citizens should not be pre-

sumptively criminal based upon their race”). in

Weaver, the race of two Los Angeles gangs known to

be flooding the Kansas City area with cocaine was

deemed a legitimate factor in deciding whether to

stop and interrogate a traveler at the airport. See id.

(stating that, given the other facts taken into account

with the defendant’s race, the “facts are not to be

App. 45

ignored simply because they may be unpleasant — and

the unpleasant fact in this case is that [the officer]

has knowledge, based upon his own experience and

the intelligence of others that young male member of

black Los Angeles gangs were flooding the Kansas

City area with cocaine”). A view to the totality of the

circumstances, in this case, reflects that the Defen-

dant’s race was one of several factors, that taken

together with the other information available to

Agent DeJoode, made the decision to stop the Jetta a

reasonable one.

The existence of the search warrant confirmed

that on-going criminal activity likely existed at the

Residence. The key issue, for this analysis, is whether

the Defendant could reasonably be linked to that

activity given Agent DeJoode’s information at the

time. If so, stopping the Defendant has as he drove

away from the Residence was reasonable. See United

States v. Cortez, 449 U.S. 411, 417 (1981) (basing an

analysis of a reasonable or founded suspicion on “the

totality of the circumstances — the whole picture”). At

hearing, Agent DeJoode testified that CI-1 believed

the Hispanic person in the Residence was the

methamphetamine source for Boatwright. It is this

information, relayed by Ci-i to Agent DeJoode on the

day of the warrant execution, that specifically tied

the Hispanic male in the Residence to the on-going

criminal activity that formed the basis for the search

warrant. With no evidence of any other Hispanic

person entering or leaving the Residence after he

received that information, or that other Hispanic

App. 46

persons frequented the area near the Residence,

Agent DeJoode was justified in his suspicion, based

on the totality of the circumstances, that the Hispanic

persons leaving the house were tied to the criminal

activity inside. See Terry, 392 U.S. at 21 (stating that

“in making [the] assessment, it is imperative that the

facts be judged [by a court] 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?’”) (quoting Carroll v.

United States, 267 U.S. 132 (1925)).

The Defendant makes no objection to the source

of information to Agent DeJoode — the cooperating

individuals, CI-1 and CI-2. Because Cl-l’s informa-

tion, in particular, was crucial to establishing reason-

able suspicion in this case, however, an analysis

regarding the credibility of Cl-1 is warranted. The

credibility of CI-1 is based on “evidence of the infor-

mant’s reliability, veracity, and basis of knowl-

edge. ...” See United States v. Ketzeback, 358 F.3d

987, 991 (8th Cir. 2004) (stating, however, that credi-

bility is not an “independent requirement to be rigidly

exacted in every case”) (internal quotations omitted).

Compared to the description of the CI in Ketzeback,

there is scant background provided in this case as to

Cl-1. The search warrant application, however, does

contain a stock informant reliability check-list enti-

tled “Informant Attachment.” Warrant App. at 12.

The application also revealed that CI-1 provided

independently corroborated information, had not

App. 47

given false information in the past, and that CI-1’s

information was based on personal knowledge. Jd.

Moreover, Cl-1 played a key supporting role in Agent

DeJoode’s investigation, including identifying Boat-

wright as a drug source, participating in the drug

transactions with her, identifying Cannon as another

drug source, and participating in recorded telephone

calls with Boatwright at Agent DeJoode’s direction.

Id. at 6-7. There is no indication in the warrant

affidavit, nor does the Defendant provide evidence,

that Cl-1 misled law enforcement officials, or was

acting from questionable motives. See Ketzeback, 358

F.3d at 991-992 (stating that “independent corrobora-

tion of even innocuous facts makes it more likely an

informant is telling the truth about incriminating

ones, and corroboration of innocent behavior can

provide the basis for establishing probable cause”). In

this case, as observed, Agent DeJoode required mere

reasonable suspicion, not probable cause, to believe

the Hispanic male in the Residence was Boatright’s

drug source. Accordingly, reliance on Cl-1's informa-

tion that the person in the Residence just prior to the

execution of the search warrant was Boatwright’s

Hispanic drug source from California, is justified.

In drawing this conclusion, the Court is cognizant

of the often difficult relationship between munority

groups and law enforcement officials. See Wardlow, 528

US. at 133 n.9 (citing, at length, several studies and

views revealing the perspective of minority groups,

including the Chief of the Washington, D.C., Metropoli-

tan Police Department: “[S]izeable percentages of

App. 48

Americans today — especially Americans of colors till

view policing in the United States to be discrimina-

tory, if not by policy and definition, certainly in its

day to day application.”) (Stevens, J. concurring in

part and dissenting in part). Because the standard to

support reasonable suspicion is, compared to other

standards governing consideration of evidence, ex-

ceedingly low, Agent DeJoode’s actions pass constitu-

tional muster. That said, the Court is troubled that

up until his actual identification was secured, the

Defendant was only identified as being part of a

racial minerity and stopped largely because of that

generalized identification. As did the Supreme Court

in Terry, this Court recognizes that the relationship

between law enforcement officials and the citizenry is

made up of numerous and diverse encounters. In this

case, the law enforcement officials could only decide

and act on the information available to them. See

Weaver, 966 F.2d at 394 n.2 (discussing race as a

factor in drug-related cases and though wishing

otherwise, stating “we take the facts as they are

presented to us, not as we would like them to be”). It

is this Court’s hope, however, that the Government

continues to sensitize its agents to the perceptions of

the minority communities it serves, and bear in mind

identifications based on generalized racial groupings

in support of searches and seizures risk undermining

the support that is so crucial to good police work. See

Olmstead v. United States, 277 U.S. 438, 485 (1928)

(Brandies, J., dissenting) (“Our government is the

potent, the omnipresent teacher. For good or for ill, it

teaches the whole people by its example.”).

App. 49

B. Patdown, Search, and Arrest

After the valid traffic stop, Agent DeJoode asked

for identification. See United States v. Ortiz-Monroy,

332 F.3d 525, 529 (8th Cir. 2003) (“Once a lawful stop

has occurred, officers are entitled to conduct an

investigation reasonably related in scope to the

circumstances which justified the interference in the

first place.”) (internal citations omitted). There is no

dispute that the Defendant offered two separate

California documents with the same photographs, but

with different subject matter information — an identi-

fication card and a driver’s license. This alone pro-

vides probable cause that the Defendant had violated

false document laws or, at the very least, grounds for

further investigation. The offering of false documents,

particularly when coupled with the reasonable suspi-

cion that the Defendant was involved in drug traffick-

ing, provided a basis for a Terry patdown. As Agent

DeJoode’s investigation progressed, he discovered the

Defendant’s criminal history included drug violations

and false identification charges. Upon more question-

ing, the Defendant admitted he just arrived at the

Residence the day before, further solidifying Agent

DeJoode’s suspicion that the Defendant was linked to 7

the criminal activity described in the search warrant

application. The investigation further reveaied the

social security number used by the Defendant was

issued before the date of birth on the identification

document itself, a strong indication that one or both

documents offered to Agent DeJoode were falsified.

The investigation at the scene, the drive to the

App. 50

nearby State Patrol Headquarters, and the involve-

ment of BICE all took approximately thirty minutes

to accomplish — well within the reasonable time

frame necessary to protect the Defendant’s constitu-

tional rights in the context of the stop in this case.

The arrest of the Defendant and the subsequent legal

inventory of the Jetta all flow from the probable

cause established in this period. Accordingly, the

Defendant's argument that the Government violated

his 4th Amendment rights following the traffic stop

on July 8, 2004 is unsupported by the facts.

Ill. CONCLUSION

For the reasons stated herein, Defendant’s Mo-

tion to Suppress Evidence (Clerk’s Nos. 35, 76, and

88) is DENIED. Accordingly, the evidence related to

the stop and arrest of the Defendant on July 8, 2004,

notwithstanding other evidentiary issues that may

arise, is admissible as to the charges alleged against

him in the original and superseding indictments.

Clerk’s Nos. 1 and 41.

IT IS SO ORDERED.

Dated this 23rd day of December, 2004.

/s/ Robert W. Pratt

ROBERT W. PRATT

U.S. DISTRICT JUDGE

App. 51

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 06-1339

United States of America,

Appellee

Vv.

Felipe Mendez, Jr.,

Appellant

Appeal from U.S. District Court for the

Southern District of lowa - Des Moines

(4:04-cr-199 RP)

ORDER

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

Judge Colloton took no part in the consideration or

decision of this matter.

August 07, 2007

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

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