United States v. Lang, S.

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 4/12/96
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 95-3260, 95-3261
SOUPHAPHONE LANG and
DOUANGMALA LANG,

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. Nos. 94-CR-10121-01 and 02)

T. Lynn Ward, Hershberger, Patterson, Jones & Roth, L.C., Wichita, Kansas, for Defendant-
Appellant Souphaphone Lang.

Ron W. Paschal, Wichita, Kansas, for Defendant-Appellant Douangmala Lang.

David M. Lind (Jackie N. Williams, United States Attorney, with him on the brief), Assistant
United States Attorney, Wichita, Kansas, for Plaintiff-Appellee.

Before PORFILIO, KELLY, and BRISCOE, Circuit Judges.

PORFILIO, Circuit Judge.
 Souphaphone and Douangmala Lang were convicted after a jury

trial of possession with the intent to distribute cocaine in

violation of 21 U.S.C. § 841(a)(1), carrying or using a firearm

during and in relation to a drug trafficking crime in violation of

18 U.S.C. § 924(c), and aiding and abetting each other’s criminal

conduct in violation of 18 U.S.C. § 2. On appeal, Souphaphone and

Douangmala Lang raise three common issues. The Langs challenge the

sufficiency of the evidence supporting their firearm convictions,

the district court’s denial of their joint motion to suppress, and

the two-level enhancement each received in their sentences for

obstruction of justice. We reverse both Souphaphone and Douangmala

Lang’s 18 U.S.C. § 924(c) convictions, but remand for resentencing

for the district court to determine the applicability of the two-

level special offense characteristic enhancement of U.S.S.G.

§ 2D1.1(b)(1) to the facts of this case. We affirm the district

court’s denial of the Langs’ joint motion to suppress, and also

affirm the two-level enhancement for obstruction of justice imposed

against both defendants pursuant to U.S.S.G. § 3C1.1.1

I.

1
Although filed separately, these cases are joined only for the purpose of their
disposition.

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 Souphaphone and Douangmala Lang were arrested as a result of

the FBI’s Violent Crime Task Force’s surveillance of a mobile home

in Wichita, Kansas, on November 29, 1994. The Task Force conducted

the surveillance because they believed Fongyxmany Phommachanh was

staying at the mobile home. The Task Force began its surveillance

at 9:18 a.m. on November 29. The surveillance team consisted of

five agents distributed among four different vehicles. FBI Special

Agent Daniel Jablonski led the surveillance from one vehicle, with

Detective Mitchell Mervosh and Officer Blake E. Mumma riding

together in a second vehicle, FBI Special Agent Charles G.

Pritchett in a third vehicle, and Detective Danny Parker in a

fourth vehicle. The impetus for the surveillance of the mobile

home was the Task Force’s belief Mr. Phommachanh could be located

there. The Task Force possessed information the mobile home was a

frequent gathering place or hangout for Asian gang members with

whom Mr. Phommachanh was associated. Mr. Phommachanh was wanted

for questioning in connection with three armed robberies occurring

in the Wichita metropolitan area between September and November

1994.

First, the Task Force believed Mr. Phommachanh was involved in

the September 22, 1994 armed robbery at a Sonic Drive-In restaurant

where he had once worked. Two Asian men wearing ski masks had

entered the restaurant, discharged a firearm, and robbed the cash

register. The Task Force concluded a former employee was involved

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because the details of the crime suggested some insider knowledge.

A witness, a Sonic employee who had previously worked with Mr.

Phommachanh, identified him as one of the two perpetrators based on

his voice and mannerisms.

Second, Mr. Phommachanh was also a suspect in another robbery

at a different Sonic Drive-In restaurant on October 12, 1994. The

methods employed by the robbers were similar to those used in the

first offense. Again, two Asian men with their faces disguised by

ski masks entered the establishment, threatened the employees by

discharging a firearm, and fled with the cash from the register.

In addition, ballistics revealed the same .32 caliber gun was used

to commit both robberies.

Third, the Task Force sought to question Mr. Phommachanh about

the November 8, 1994 robbery of the Mandarin Restaurant during

which one of its proprietors, Barbara Sun, was murdered. Three or

four armed Asian males perpetrated the third robbery. The Task

Force’s information concerning Mr. Phommachanh’s possible

participation in the Mandarin Restaurant robbery came from his

mother, Kanha Pommachanh. Mrs. Pommachanh was working at Wesley

Hospital as a housekeeper when Barbara Sun was brought there. Mrs.

Pommachanh overheard several people talking about the Mandarin

robbery, Ms. Sun’s murder, and how four Asian males were suspects.

She feared her son might be involved. Mrs. Phommachanh reached

this conclusion because her son had left home between two and three

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months previously and she had not seen him since. She also

believed her son might be involved with a gang and feared the

Mandarin Restaurant robbery/murder was part of a gang war.

Mrs. Phommachanh contacted the police, and Detective Mervosh

interviewed her at the hospital on November 14. Following the

interview at the hospital, Mr. Phommachanh telephoned his mother

and asked her for $400 to assist in moving either his friend’s car

or trailer. Mrs. Phommachanh called Brad Cary, a member of the

gang unit of the Wichita Police Department, whom she knew from her

work at the hospital. Mrs. Phommachanh told Officer Cary of her

son’s request for money. He suggested Mr. Phommachanh might use

the money to leave Wichita. After her phone conversation with

Officer Cary, Mrs. Phommachanh determined not to give her son the

$400.

Subsequently, Mrs. Phommachanh and her husband visited the

Task Force office at FBI headquarters and talked to Detective

Mervosh and Agent Jablonski at their request. At the office, the

Phommachanhs viewed a series of pictures in an attempt to identify

possible gang members, and Mrs. Phommachanh talked further of her

fear of her son’s involvement in criminal activity and his request

for money.

Armed with this information, the Task Force began its

surveillance of the mobile home hoping to find Mr. Phommachanh.

The Task Force agents had a mug shot and a physical description of

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Mr. Phommachanh. All was quiet until 12:18 p.m. when a red

Chevrolet S-10 Blazer arrived at the mobile home. An unidentified

Asian male left the Blazer and entered the residence. After

spending about four minutes inside, the same unidentified Asian

male and another unidentified Asian male left the home, returned to

the Blazer and began to drive away.

Agent Jablonski, who was between fifty and seventy yards from

the mobile home, could not positively identify the man during the

approximately ten seconds he could observe him on each trip between

the mobile home and the Blazer. He believed, however, the

unidentified male who got into the passenger seat of the Blazer was

their suspect, Mr. Phommachanh. Consequently, he ordered the other

Task Force agents to pursue the Blazer. Agent Jablonski pulled up

alongside the Blazer and attempted to visually compare the mug shot

of Mr. Phommachanh, which he had in his possession, with the facial

features of the vehicle’s passenger. After concluding the

passenger was in fact Mr. Phommachanh, Agent Jablonski ordered the

Blazer be stopped and pulled in front of the Blazer at a traffic

light. The other Task Force vehicles surrounded the Blazer to

prevent its escape. The Task Force agents had no other reason to

stop the Blazer except for the fact they believed the passenger was

Mr. Phommachanh.

After the Blazer was stopped, Detective Mervosh and Officer

Mumma pulled in behind the vehicle. They noticed the passenger

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making frequent furtive movements at his feet either in an attempt

to retrieve or hide something. Detective Mervosh moved to the

driver’s side of the vehicle, while Officer Mumma simultaneously

proceeded to the passenger’s side. Both police officers directed

the Blazer’s occupants to exit, face, and place their hands on the

vehicle in front of them. After the suspects complied with this

request, both Detective Mervosh and Officer Mumma conducted a

standard pat down search for weapons. Detective Mervosh’s suspect,

the driver, later identified as Souphaphone Lang, had no weapons or

other contraband on his person. However, Officer Mumma’s pat down

search of the passenger, later identified as Douangmala Lang,

revealed a suspicious bulge protruding from the suspect’s left

front pants pocket.

Officer Mumma asked the man what was in his pants pocket, and

the passenger replied, “money.” Officer Mumma asked the man’s

permission to examine the “money” and received consent. To ensure

the passenger clearly understood his question, Officer Mumma

repeated his request, this time looking the passenger directly in

the eyes. Again, the man gave his consent. Officer Mumma removed

the rolled-up plastic bag and discovered what appeared to be

cocaine inside. Contemporaneously, Officer Mumma noticed what he

also believed to be cocaine in plain view on the floorboard next to

the passenger’s seat.

-7-
 Either during or immediately following his pat down search,

Officer Mumma asked the passenger his name. The suspect replied:

“Joe Lang.” Later, the man produced identification confirming his

identity was Douangmala Lang. At this point, the Task Force agents

realized they had mistaken Douangmala Lang for Fongyxmany

Phommachanh. Souphaphone Lang also produced identification

demonstrating his identity.

After conferring among themselves, and telephoning an

Assistant United States Attorney, the Task Force agents placed both

Souphaphone and Douangmala Lang under arrest based on the cocaine

found on Douangmala Lang’s person and in plain view in the Blazer.

The agents searched the Blazer after arresting both brothers, and

found two additional plastic bags of cocaine tucked underneath the

passenger seat of the vehicle. Both Souphaphone and Douangmala

Lang cooperated with the police and gave statements implicating

themselves and Mr. Phommachanh for cocaine possession and

distribution.

After obtaining these statements, along with the other

evidence from the Blazer, the Task Force agents received a search

warrant for the mobile home. The search warrant was executed the

same day, November 29, at approximately 3:00 p.m. During their

search of the premises, Task Force agents discovered a loaded .12

gauge shotgun underneath the couch in the living room, cocaine

residue on a plate in the kitchen, and some additional cocaine

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inside a sock in a dresser drawer in one of the mobile home’s

bedrooms. Eight people were inside the mobile home at that time.

Mr. Phommachanh was arrested, and the other people were taken in

for questioning. Mr. Phommachanh gave a statement to the police

admitting giving cocaine to the Lang brothers for them to

distribute, and his involvement in the two armed robberies at the

Sonic Drive-In restaurants.

Initially, Souphaphone and Douangmala Lang were indicted along

with Mr. Phommachanh on the drug and firearms charges. Mr.

Phommachanh was also indicted with several other defendants in a

related case involving the armed robberies.2 The district court

conducted a joint hearing regarding the two related cases and heard

testimony concerning Souphaphone and Douangmala Lang’s motion to

suppress among other issues. After the hearing, the court denied

Souphaphone and Douangmala Lang’s joint motion to suppress in a

written memorandum and order.

The court concluded there was no evidence presented during the

suppression hearing to indicate the stop was pretextual. The court

held the agents stopped the Blazer for the purpose of questioning

Mr. Phommachanh about the Sonic Drive-In and Mandarin robberies.

Therefore, the court framed the issue as “whether the Task Force

had objective justification to stop Phommachanh to question him.”

2
Ultimately, Mr. Phommachanh reached a plea agreement with the government and was
not tried with Souphaphone and Douangmala Lang.

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The court concluded the agents had a reasonable and objective

belief Mr. Phommachanh was implicated in the three crimes.

The court determined the agents’ misidentification of

Douangmala Lang as Fongyxmany Phommachanh was also reasonable. The

court rejected the argument Detective Mervosh was familiar with

Souphaphone and Douangmala Lang based on his previous arrest of

Souphaphone on November 17 depriving the agents of a good faith

mistake of identity. The court reasoned Agent Jablonski, not

Detective Mervosh, decided to stop the Blazer; therefore, Detective

Mervosh’s individual familiarity with Souphaphone Lang was

irrelevant to this decision. Further, Detective Mervosh had not

seen either Douangmala Lang or Mr. Phommachanh prior to the stop.

In turn, Agent Jablonski had not seen any of the three men in

question prior to the November 29 incident. The court specifically

found, “the physical characteristics of Phommachanh and Douangmala

are similar and the mug shot of Phommachanh available to Agent

Jablonski on November 29 looks very much like Douangmala Lang.”

The court concluded Officer Mumma’s pat down search of

Douangmala Lang was reasonable under the circumstances, and also

held Douangmala Lang voluntarily consented to the search of his

left front pants pocket, which resulted in the initial discovery of

cocaine. The court found the agents did not improperly exceed the

scope of their initial stop because everything the agents did until

they could confirm Souphaphone and Douangmala Lang’s identities was

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reasonable under the circumstances. The court concluded the

agents’ actions were justified because of their legitimate belief

the passenger of the vehicle was Mr. Phommachanh, a potentially

dangerous individual wanted for questioning in two armed robberies

and a robbery/murder. Finally, the court concluded the cocaine

found by Officer Mumma on the passenger side floorboard of the

Blazer was in plain view.

In addition, the district court twice rejected the Langs’

arguments there was insufficient evidence to support their

convictions for carrying or using a firearm in connection with a

drug trafficking crime in violation of 18 U.S.C. § 924(c). At

sentencing, the district court enhanced both Souphaphone and

Douangmala Lang’s sentences by two-levels pursuant to U.S.S.G.

§ 3C1.1 for obstruction of justice. The court specifically found

both brothers committed perjury when they testified at trial.

II.

Initially, Souphaphone and Douangmala Lang argue the

government presented insufficient evidence to support their

convictions under 18 U.S.C. § 924(c) for carrying or using a

firearm in relation to a drug trafficking crime. The .12 gauge

shotgun was discovered by the police during their search of the

mobile home under the couch in the front room, and no evidence was

ever offered that either Souphaphone or Douangmala Lang brandished,

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held, or even touched the firearm in conjunction with any drug

trafficking activities. The Langs assert the evidence arrayed

against them is insufficient to support a conviction under Bailey

v. United States, ___ U.S. ___, 116 S.Ct. 501 (1995). The

government agrees the evidence was insufficient to sustain a

conviction under Bailey, but argues the case must be remanded to

the district court for resentencing so it may consider the Langs’

possession of a dangerous weapon during a drug trafficking crime

for the two-level enhancement available pursuant to U.S.S.G.

§ 2D1.1(b)(1).

We review sufficiency of evidence claims by viewing the

evidence in the light most favorable to the jury’s verdict. United

States v. Jones, 49 F.3d 628, 632 (10th Cir. 1995). “The court

must ‘determine whether any reasonable jury could find the

defendant guilty beyond a reasonable doubt.’” Id. (quoting United

States v. Coslet, 987 F.2d 1493, 1495 (10th Cir. 1993)); United

States v. Richard, 969 F.2d 849, 856 (10th Cir.), cert. denied, 506

U.S. 887 (1992). We make this determination on appeal by

examining all the direct and circumstantial evidence contained in

the record and the reasonable inferences drawn from such evidence.

United States v. Leopard, 936 F.2d 1138, 1140 (10th Cir. 1991).

We begin our analysis by deciding whether the new rule

announced in Bailey applies to Souphaphone and Douangmala Lang. In

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Griffith v. Kentucky, 479 U.S. 314 (1987), the Supreme Court held,

“a new rule for the conduct of criminal prosecutions is to be

applied retroactively to all cases, state or federal, pending on

direct review or not yet final with no exception for cases in which

the new rule constitutes a ‘clear break’ with the past.” Id. at

328; see also Powell v. Nevada, ___ U.S. ___, 114 S.Ct. 1280, 1283-

84 (1994). Because both Souphaphone and Douangmala Lang’s appeals

were pending on direct review when Bailey was decided, and Bailey

announced a new rule of criminal law, it applies here.

In Bailey, the Court attempted “to clarify the meaning of

‘use’ under § 924(c)(1).” Bailey, 116 S.Ct. at 505.3 The Court

unanimously held Ҥ 924(c)(1) requires evidence sufficient to show

an active employment of the firearm by the defendant, a use that

makes the firearm an operative factor in relation to the predicate

offense.” Id. In its discussion of its new test, the Court

“briefly describe[d] some of the activities that fall within

‘active employment’ of a firearm, and those that do not.” Id. at

508. The Court included, “brandishing, displaying, bartering,

striking with, and most obviously, firing or attempting to fire, a

3
The statute also prohibits “carrying” a firearm in relation to a drug trafficking crime.
The government has never alleged either Souphaphone or Douangmala Lang ever carried the
shotgun in this case, so this aspect of the statute does not apply. Compare United States v.
Farris, ___ F.3d ___, 1996 WL 82490, at *3 (11th Cir., March 13, 1996) (discussing what
constitutes carrying a firearm for § 924(c) purposes after Bailey); United States v. Riascos-
Suarez, 73 F.3d 616, 622-24 (6th Cir. 1996) (same).

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firearm,” id., among those activities constituting active

employment. In contrast, the Court concluded the “mere possession

of a firearm by a drug offender, at or near the site of a drug

crime or its proceeds or paraphernalia” or “the inert presence of

a firearm, without more, is not enough to trigger § 924(c)(1).”

Id. Additionally, the Court also determined the meaning of “use”

excluded the situation “where an offender conceals a gun nearby to

be at the ready for an imminent confrontation.” Id. Further,

besides the examples discussed by the Court, the facts of the two

cases before the Court are also instructive. The Court concluded

the discovery of a firearm inside a bag in one defendant’s locked

car trunk, and the analogous discovery of an unloaded, holstered

firearm in a locked footlocker in another defendant’s bedroom

closet were both insufficient to demonstrate active employment

under the Court’s new definition. Id. at 509.

Since the Court decided Bailey, this court has only addressed

the applicability of § 924(c)(1) on one occassion. United States

v. Wacker, 72 F.3d 1453 (10th Cir. 1995). In Wacker, we vacated

the § 924(c)(1) convictions of several defendants and remanded one

defendant’s case for a new trial before a jury properly instructed

pursuant to Bailey. Id. at 1463-65. Firearms discovered in a bag

in the rear camper shell of one defendant’s truck, and in a file

cabinet in another defendant’s home, were held not to be actively

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employed in the defendants’ marijuana harvesting and distribution

operation. Id. at 1460-65.

In the instant case, the .12 gauge shotgun was discovered

underneath the couch in the front room of the mobile home.

Souphaphone and Douangmala Lang were arrested in their Blazer

several miles from the mobile home, and the Task Force agents only

found the shotgun when searching the residence pursuant to a

warrant after both Langs were in custody. Under these

circumstances, there is no way either Lang can be said to have

actively employed the shotgun in relation to any drug trafficking.

The situation here is most analogous to a mere possession of a

firearm near a drug site or drug paraphernalia, which the Court

specifically concluded did not qualify as a “use” within the

meaning of the statute. Accordingly, we hold the government failed

to present sufficient evidence to convict either Souphaphone or

Douangmala Lang under Bailey’s reinterpretation of 18 U.S.C. §

924(c)(1).

However, our inquiry does not end with the conclusion

sufficient evidence was not presented to support these convictions.

Instead of contesting the sufficiency of evidence issue, the

government argues these two cases must be remanded to the district

court for resentencing so it can consider the applicability of a

two-level enhancement under U.S.S.G. § 2D1.1(b)(1). We agree.

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 Souphaphone and Douangmala Lang were charged under

§ 924(c)(1); therefore, the district court was precluded from

enhancing their base offense levels by two-levels pursuant to

§ 2D1.1(b)(1) because of the Sentencing Guidelines’ prohibition on

double counting. The Guidelines provide:

18 U.S.C. §§ 844(h), 924(c), and 929(a) provide mandatory
minimum penalties for the conduct proscribed. To avoid
double counting, when a sentence under this section is
imposed in conjunction with a sentence for an underlying
offense, any specific offense characteristic for
explosive or firearm discharge, use, or possession is not
applied in respect to such underlying offense.

U.S.S.G. § 2K2.4 comment.(backg’d). The specific offense

characteristic at issue here falls squarely within this provision.

See, e.g., United States v. Blake, 59 F.3d 138, 139-40 (10th Cir.)

(“[A] sentencing court cannot enhance a defendant’s sentence for a

robbery under the Guidelines by reason of his use of a firearm if

the defendant has been separately convicted and is being sentenced

under § 924(c) for using the firearm in the commission of the same

robbery. To do so would impermissibly double count contrary to the

language and policy of the Sentencing Guidelines.”), cert. denied,

116 S.Ct. 580 (1995). However, vacating the Langs’ § 924(c)

convictions pursuant to Bailey eliminates this prohibition.4 We

4
In Bailey, the Court specifically recognized U.S.S.G. § 2D1.1(b)(1) allowed an
enhancement when a firearm was possessed during a drug trafficking offense, a broader category
of cases than the definition of “use” adopted by the Court. Bailey v. United States, ___ U.S.
___, 116 S.Ct. 501, 509 (1995); see also United States v. Gary, 74 F.3d 304, 317 n. 11 (1st Cir.
1996).

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have previously held this enhancement may be imposed at sentencing

after a defendant has been acquitted of a § 924(c) charge. United

States v. Martinez, 979 F.2d 1424, 1433-34 (10th Cir. 1992), cert.

denied, 507 U.S. 1022 (1993); United States v. Eagan, 965 F.2d 887,

892 (10th Cir. 1992). We find no persuasive reason to treat an

appellate reversal on sufficiency of evidence grounds any

differently. In fact, the two circuits who have addressed this

precise issue following Bailey have determined a remand for

resentencing was appropriate. United States v. Fennell, ___ F.3d

___, 1996 WL 91616, at *1 (D.C. Cir., March 4, 1996) (per curiam);

United States v. Roulette, 75 F.3d 418, 426 (8th Cir. 1996) (“The

prohibition against applying the two level enhancement is no longer

applicable, because the firearm sentence on Count 4 has been set

aside.”). Therefore, we hold when a defendant’s conviction under

18 U.S.C. § 924(c) is reversed on sufficiency of evidence grounds

on appeal, the case is subject to remand for resentencing to

determine the applicability of the enhancement found at U.S.S.G.

§ 2D1.1(b)(1) to the facts of each particular case.

On remand, the district court must determine whether either

Souphaphone or Douangmala Lang possessed a firearm in connection

with their drug trafficking activities within the meaning of the

guidelines. “The adjustment should be applied if the weapon was

present, unless it is clearly improbable that the weapon was

connected with the offense.” U.S.S.G. § 2D1.1 comment. (n.3).

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Initially, the government bears the burden of proving by a

preponderance of the evidence that the gun was proximate to the

drug offense. United States v. Earls, 42 F.3d 1321, 1326 (10th

Cir. 1994), cert. denied, 115 S.Ct. 1800 (1995). The government

must present evidence demonstrating “that a temporal and spatial

relation exited beween the weapon, the drug trafficking activity,

and the defendant.” United States v. Robertson, 45 F.3d 1423, 1449

(10th Cir.), cert. denied, 115 S.Ct. 2558 (1995) (quoting United

States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993)). If the

government meets its burden, the onus shifts to the defendant to

“show it is ‘clearly improbable’ that the weapon was related to the

offense.” Robertson, 45 F.3d at 1449; United States v. Jackson, 11

F.3d 953, 956 (10th Cir. 1993). We explicitly offer no opinion

whether the enhancement is applicable here. That determination is

appropriately made by the district court in the first instance on

remand after a sentencing hearing. We note only the analysis of

whether Souphaphone and Douangmala Lang possessed the shotgun may

differ based on the individual circumstances linking the firearm to

each defendant.

III.

In addition, both Souphaphone and Douangmala Lang appeal the

district court’s denial of their joint motion to suppress. They

argue the Task Force’s actions beginning with the initial stop and

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proceeding through the different searches leading to their arrest

violated the Fourth Amendment and necessitated the suppression of

all the resulting evidence as the fruit of a poisonous tree. We

agree with the district court no Constitutional violation occurred

here.

In reviewing a denial of a motion to suppress, we view the

evidence in the light most favorable to the district court’s

ruling. United States v. Marchant, 55 F.3d 509, 512 (10th Cir.),

cert. denied, 116 S.Ct. 260 (1995). The district court’s factual

findings underpinning the denial of the motion are accepted unless

clearly erroneous. United States v. Little, 60 F.3d 708, 712 (10th

Cir. 1995); United States v. Flores, 48 F.3d 467, 468 (10th Cir.),

cert. denied, 116 S.Ct. 122 (1995). A reviewing court must remain

“mindful that at a hearing on a motion to suppress, the credibility

of the witnesses and the weight given the evidence, as well as the

inferences and conclusions drawn therefrom, are matters for the

trial judge.” United States v. Fernandez, 18 F.3d 874, 876 (10th

Cir. 1994); United States v. Werking, 915 F.2d 1404, 1406 (10th

Cir. 1990). However, the ultimate determination of the

reasonableness under the Fourth Amendment is reviewed de novo.

Little, 60 F.3d at 712; Fernandez, 18 F.3d at 876.

To begin with, Souphaphone and Douangmala Lang challenge the

Task Force’s initial stop of the Blazer. The Langs argue the Task

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Force lacked reasonable suspicion to stop the Blazer assuming Mr.

Phommachanh actually had been a passenger in the vehicle.

Our prior cases have identified three distinct types of

police-citizen encounters. In United States v. Madrid, 30 F.3d

1269 (10th Cir.), cert. denied, 115 S.Ct. 527 (1994), we stated:

The first involves the voluntary cooperation of a citizen
in response to non-coercive questioning. The second is
a Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968), stop, involving only a brief, non-intrusive
detention and frisk for weapons when officers have a
reasonable suspicion that the defendant has committed a
crime or is about to do so. The third encounter is the
arrest of the defendant.

Id. at 1275 (citing United States v. Griffin, 7 F.3d 1512, 1516

(10th Cir. 1993)). This case falls within the second category and

must be evaluated under Terry. In that decision, the Court

concluded, to justify “the particular intrusion the police officer

must be able to point to specific and articulable facts which,

taken together with rational inferences drawn from those facts,

reasonably warrant that intrusion.” Terry, 392 U.S. at 21. The

Court cautioned, however, a police officer was not entitled to rely

on “his inchoate and unparticularized suspicion or ‘hunch’.” Id.

at 27. The conduct of the officers is judged by an objective

standard taking the totality of the circumstances and information

available to the officers into account. Id. at 21-22.

A Terry stop is evaluated under a two-part analytical

framework. First, we ask whether the stop was justified at its

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inception. Second, our inquiry focuses on whether the stop was

reasonably related in scope to the circumstances which justified

the interference in the first place. United States v. Gregory, ___

F.3d ___, 1996 WL 118269, at *3 (10th Cir. March 18, 1996); United

States v. Brown, 24 F.3d 1223, 1226 n. 2 (10th Cir. 1994).

In the instant case, we conclude there are four reasons the

Task Force possessed sufficient information to raise a reasonable

suspicion Mr. Phommachanh was involved in the two Sonic Drive-In

robberies and the Mandarin Restaurant robbery/murder. First, the

Task Force believed the nature of the Sonic Drive-In robberies

implicated an employee or former employee, and Mr. Phommachanh had

previously worked at the first restaurant robbed. Second, a

witness to the first robbery identified Mr. Phommachanh as one of

the perpetrators based on his voice and mannerisms. Third, the

similarity of the two crimes and ballistics evidence linked the two

Sonic Drive-In robberies indicating to the Task Force both were

committed by the same people. Fourth, the information the Task

Force learned from Mrs. Phommachanh that she feared her son was

involved in gang activities and might also specifically be involved

in the Sonic Drive-In and Mandarin robberies served to confirm the

Task Force’s existing information suggesting Mr. Phommachanh’s

involvement.5 The combination of all this information was

5
Souphaphone Lang argues when she testified at the suppression hearing Mrs.
(continued...)

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sufficient to give the Task Force reasonable suspicion justifying

an investigatory stop of the Blazer to question Mr. Phommachanh.

In addition, the Langs argue the Task Force’s mistake of

Douangmala Lang as Mr. Phommachanh was not reasonable. Souphaphone

and Douangmala Lang argue two of the members of the Task Force

possessed additional relevant information which should have

assisted them in recognizing Douangmala was not Mr. Phommachanh.

On November 17, twelve days prior to the incident, Souphaphone Lang

was interviewed by Detective Mervosh who took a personal and family

history of him during the interview where he learned Souphapone had

a brother named Douangmala. Further, Officer Mumma participated in

a stop of a vehicle where Mr. Phommachanh was a passenger

approximately six to eight months earlier. The Langs argue this

additional information renders the mistake of identity

unreasonable.

The evidence is uncontroverted that Agent Jablonski made the

decision to stop the Blazer on his own without discussing it with

the other members of the Task Force. Although the Task Force

members did commonly pool information about the cases they were

5
(...continued)
Phommachanh explained she never told Detective Mervosh she thought her son was specifically
involved in the Sonic Drive-In and Mandarin robberies, but simply feared her son’s participation
in criminal and gang activities generally. This certainly represents a fair reading of Mrs.
Phommachanh’s testimony. However, our standard of review requires us to view the evidence in
the light most favorable to the district court’s ruling. Accordingly, we must accept Detective
Mervosh’s contrary testimony Mrs. Phommachanh specifically mentioned she feared her son was
involved in these three robberies.

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working on, nothing in the record even suggests Agent Jablonski was

privy to the additional information attributable to Detective

Mervosh or Officer Mumma. We are unpersuaded by the Langs’

argument all the information known to one of the Task Force agents

is attributable to Agent Jablonski absent some evidence they

communicated the specific information to him so it factored into

his decision-making process. What is at issue here is whether

Agent Jablonski’s mistake of identity was reasonable under the

circumstances; and, as the district court pointed out, he had no

contact with and had never seen Souphaphone and Douangmala Lang or

Mr. Phommachanh prior to November 29.

Further, the Langs argue the mistake of identity was

unreasonable because of the physical dissimilarities between

Douangmala Lang and Mr. Phommachanh. Agent Jablonski had both a

mug shot and a description of Mr. Phommachanh which described him

as between 5'3" and 5'6" in height, and weighing 140 to 150 pounds,

with a shaved head or a closely cropped hairstyle and facial hair.

In contrast, Douangmala Lang was between 5'10" and 6'0" tall,

weighed 160 to 190 pounds, and had a different hairstyle. These

descriptions are patently different. However, Agent Jablonski

testified he had approximately ten seconds to observe Douangmala

Lang on his two trips between the mobile home and the Blazer from

a distance of fifty to seventy yards. He also observed Douangmala

Lang by driving alongside the Blazer and making a visual comparison

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between the mug shot pictures and the physical features of the

vehicle’s passenger. The brief time period and the difficulty of

identifying someone in a moving vehicle must be taken into

consideration in evaluating the reasonableness of Agent Jablonski’s

mistake. In addition, the district court specifically found the

mug shot picture of Mr. Phommachanh “looked very much like

Douangmala Lang.” Agent Jablonski had the best opportunity to

compare Douangmala Lang’s facial features with the mug shot. His

opportunity to compare Douangmala Lang’s height and weight to the

suspect’s was hindered by the limited time period he saw him

walking to and from the Blazer, and Douangmala Lang’s seated

position in the vehicle. Under the totality of the circumstances,

we cannot conclude Agent Jablonski’s misidentification of

Douangmala Lang as Mr. Phommachanh was unreasonable. Accordingly,

we hold the Task Force possessed sufficient justification to stop

the Blazer.

Next, the Langs contend the scope of the stop and the ensuing

searches exceeded the Task Force’s justification for the stop.

Under Terry’s second prong, the duration and extent of the seizure

must be evaluated based upon “the circumstances which justified the

interference in the first place.” Terry, 392 U.S. at 20. After

the Blazer was stopped, both Souphaphone and Douangmala Lang were

ordered to get out of their vehicle and subjected to pat down

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searches for weapons. The question is whether these actions are

objectively reasonable under the circumstances.

We have previously noted: “Since police officers should not

be required to take unnecessary risks in performing their duties,

they are ‘authorized to take such steps as [are] reasonably

necessary to protect their personal safety and maintain the status

quo during the course of [a Terry] stop.’” United States v. Perdue,

8 F.3d 1455, 1462 (10th Cir. 1993) (quoting United States v.

Hensley, 469 U.S. 221, 235 (1985) (alterations in original)). The

Task Force agents’ actions in this case were entirely consistent

with this principle. It was reasonable for the Task Force to

conduct a pat down search because they legitimately believed

Douangmala Lang was Mr. Phommachanh. Mr. Phommachanh was a suspect

in two armed robberies and a robbery/murder. It was reasonable for

the Task Force to believe he and his traveling companion, who

himself was a potential accomplice in the robberies, might be armed

and dangerous. The Task Force’s decision to conduct a pat down

search was reasonable to protect the agents’ personal safety. In

Perdue, we approved the officers’ actions of executing the Terry

stop with their weapons drawn and ordering the suspect to exit his

car and lie down on the ground “as a means of neutralizing the

potential danger.” Id. at 1462-63. The Task Force’s actions here

were less intrusive and equally reasonable under the circumstances.

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 The Langs argue, however, once Douangmala informed Officer

Mumma he was Joe Lang and Detective Mervosh recognized Souphaphone,

the Task Force should have stopped to check the Langs’ identities.

We disagree. First, Detective Mervosh’s recognition of Souphaphone

Lang is irrelevant to determining Douangmala Lang’s identity.

Second, while there is a factual dispute about when Douangmala Lang

told Officer Mumma he was Joe Lang, we see no need to resolve it

because there is no question Douangmala Lang’s identity was not

confirmed until after the completion of the pat down search. It is

unreasonable to expect officers to stop a pat down search of a

suspect they reasonably believe may be armed and dangerous simply

based on the suspect’s unconfirmed statement of his identity.

Under these circumstances, we believe Officer Mumma acted properly

by completing his pat down search of Douangmala Lang prior to

seeking his identification to determine his identity.

Individually, Douangmala Lang challenges Officer Mumma’s pat

down search which disclosed the cocaine.6 Initially, he contends

once Officer Mumma concluded the bulge in his left front pants

pocket was not a weapon he should have stopped the search.

However, the Supreme Court has held a police officer may seize

nonthreatening contraband detected during a protective pat down

6
Souphaphone Lang also raises this issue. In response, the government argues
Souphaphone Lang lacks Fourth Amendment standing to challenge the search of his brother.
Our disposition of the issue renders Souphaphone Lang’s argument moot, so we need not address
his standing.

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search permitted by Terry. Minnesota v. Nickerson, 508 U.S. 366,

___, 113 S.Ct. 2130, 2136 (1993). The Court reasoned:

If a police officer lawfully pats down a suspect’s outer
clothing and feels an object whose contour or mass makes
its identity immediately apparent, there has been no
invasion of the suspect’s privacy beyond that already
authorized by the officer’s search for weapons; if the
object is contraband, its warrantless seizure would be
justified by the same practical considerations that
inhere in the plain view context.

Id. at 2137 (citations and footnote omitted). Under Nickerson,

Officer Mumma’s discovery of the plastic bag of cocaine in

Douangmala Lang’s pocket was reasonable because there is no

evidence he did anything more intrusive than a simple pat down

search.

However, in this case, the search does not stand or fall based

on Nickerson because Officer Mumma twice asked for and received

Douangmala Lang’s consent to search his pocket. A search is

reasonable under the Fourth Amendment if voluntary consent is given

to the police before the search. The voluntariness of a consent to

search is examined under the totality of the circumstances with the

government bearing the burden of proof. United States v. McCurdy,

40 F.3d 1111, 1119 (10th Cir. 1994). “The ‘government must show

that there was no duress or coercion, express or implied, that the

consent was unequivocal and specific, and that it was freely and

intelligently given.’” Id. (quoting United States v. Zapata, 997

F.2d 751, 758 (10th Cir. 1993); see also United States v. Melendez-

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Garcia, 28 F.3d 1046, 1053-54 (10th Cir. 1994). The district court

concluded, based on Officer Mumma’s testimony, Douangmala Lang

voluntarily consented to the search of his left front pants pocket.

Douangmala Lang has offered nothing to disturb this finding on

appeal, and our review of Officer Mumma’s testimony supports the

district court’s conclusion.

Finally, Souphaphone and Douangmala Lang assert Officer

Mumma’s discovery of the cocaine on the passenger’s side of the

Blazer’s floorboard does not meet the requirements of the plain

view exception. Law enforcement authorities may seize contraband

in plain view without a warrant if three conditions are met: (1)

the law enforcement authorities are lawfully in a position from

which they may view the object; (2) the object’s incriminating

character is immediately apparent; and, (3) the authorities have

a lawful right of access to the object. Nickerson, 113 S.Ct. at

2136-37; United States v. Naugle, 997 F.2d 819, 822 (10th Cir.),

cert. denied, 114 S.Ct. 562 (1993); United States v. Corral, 970

F.2d 719, 723 (10th Cir. 1992). The Langs argue the first and

third factors have not been established in this case. Souphaphone

and Douangmala Lang assert the Task Force agents initial stop of

the Blazer was improper so they were not lawfully in a position to

view the cocaine on the vehicle’s floorboard. We have already

concluded the stop of the Blazer was appropriate. Further, the

Langs argue the cocaine was underneath the passenger seat on the

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floorboard and therefore not within plain view. Unfortunately, the

Langs offer no specific evidence demonstrating the truth of their

assertion to contradict Officer Mumma’s testimony he spied the

cocaine on the floorboard in front of the passenger seat through

the open passenger door while frisking Douangmala Lang. We hold

the cocaine first discovered in the Blazer by Officer Mumma falls

within the plain view exception to the warrant requirement.

In summary, we conclude the district court properly denied

Souphaphone and Douangmala Lang’s motion to suppress. The Task

Force agents possessed reasonable suspicion to stop the Blazer;

Agent Jablonski’s mistake of Douangmala Lang as Fongyxmany

Phommachanh was reasonable; the pat down searches of Souphaphone

and Douangmala Lang were justified as a reasonable precautionary

measure to ensure the Task Force agents’ safety; the search did not

exceed the scope of the initial impetus for the investigatory stop;

and Officer Mumma discovered the initial cocaine found in the

Blazer within plain view.

IV.

Finally, Souphaphone and Douangmala Lang challenge their

sentences. Specifically, both Langs argue the district court erred

by imposing a two-level enhancement for obstruction of justice

pursuant to U.S.S.G. § 3C1.1 after finding Souphaphone and

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Douangmala Lang committed perjury when they testified at their

trial.

We review the factual findings supporting the application of

a particular Sentencing Guideline provision for clear error.

United States v. Edwards, 69 F.3d 419, 440 (10th Cir. 1995),

petition for cert. filed, 64 U.S.L.W. 3593 (Feb. 23, 1996). In so

doing, we give due deference to the district court’s factual

findings based on its observation of the testimony given at trial

including the demeanor of the witnesses. United States v. Yost, 24

F.3d 99, 106 (10th Cir. 1994).

The Sentencing Guidelines provide for a two-level enhancement

if the defendant willfully attempts or succeeds in obstructing or

impeding the administration of justice. U.S.S.G. § 3C1.1. The

application notes make clear “committing, suborning, or attempting

to suborn perjury” is conduct sufficient to trigger this

enhancement. U.S.S.G. § 3C1.1 (n.3(b)). “A defendant commits

perjury if he gives false testimony under oath concerning a

material matter with the willful intent to provide false testimony,

rather than as a result of confusion, mistake or faulty memory.”

United States v. Owens, 70 F.3d 1118, 1132 (10th Cir. 1995) (citing

United States v. Dunnigan, 507 U.S. 87, ___, 113 S.Ct. 1111, 1116

(1993)).

In the instant case, the presentence reports for both

Souphaphone and Douangmala Lang recommended a two-level enhancement

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for an obstruction of justice. Both presentencing reports

concluded the brothers committed perjury when they testified at

trial. Souphaphone and Douangmala Lang objected to the

recommendation, but after holding a sentencing hearing, the

district court agreed with the probation office and imposed the

U.S.S.G. § 3C1.1 enhancement.

On appeal, Souphaphone and Douangmala Lang argue the district

court erred on two grounds. First, the Langs assert the court

failed to make the requisite specific factual findings they

willfully committed perjury to impede the administration of

justice. They contend the court only made a general statement

finding Souphaphone and Douangmala Lang’s testimony perjurious.

Second, the Langs maintain they did not commit perjury. Instead,

they characterize the differences in their testimony from the Task

Force agents as merely a factual dispute. The Langs argue they

were improperly punished simply for exercising their right to

testify on their own behalf. We conclude these arguments are

without merit.

In Dunnigan, the Supreme Court explained a sentencing court

“must review the evidence and make independent findings necessary

to establish a willful impediment to or obstruction of justice, or

an attempt to do the same ....” Dunnigan, 113 S.Ct. at 1117.

Since the Court’s decision, we have elaborated the type of findings

required:

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 We do not mean to imply the district court must recite
the perjurious testimony verbatim. The district court
must generally identify the testimony at issue from his
or her trial notes or memory and it is sufficient if such
testimony is merely described in substance so that when
we review the transcript we can evaluate the Dunnigan
findings of the elements of perjury against an identified
line of questions and answers without having simply to
speculate on what the district court might have believed
was the perjurious testimony.

United States v. Massey, 48 F.3d 1560, 1574 (10th Cir.), cert.

denied, 115 S.Ct. 2628 (1995). The district court complied with

Dunnigan and Massey in this instance. For Souphaphone Lang, the

district court focused on the defendant’s testimony he did not know

there was any cocaine in the Blazer until after he was arrested and

his denial of knowledge about the cocaine found inside a rolled

pair of socks in his dresser drawer in his bedroom. Similarly, for

Douangmala Lang, the court specified his testimony he planned to

take the cocaine and dispose of it in the river as a favor for Mr.

Phommachanh. The court’s focus on this specific testimony it

considered perjurious was sufficient to allow us to review the

substance of its finding, which is all that is required by Dunnigan

and its progeny in this circuit. The court’s findings are

favorably compared with those instances where we have previously

held a sentencing court’s findings were not specific enough.

Compare United States v. Markum, 4 F.3d 891, 898 (10th Cir. 1993)

(“The record does not contain a specific finding that independent

of the jury verdict, defendant committed perjury. Nor does it

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suggest what particular testimony the district court found

untrue.”); United States v. Hansen, 964 F.2d 1017, 1020 (10th Cir.

1992) (“[T]he district court’s finding that both it and the jury

may not have believed the defendant’s testimony stops well short of

a finding that the defendant perjured himself. Further, the trial

court’s statement as to finding the defendant untruthful was not in

specific regards to any testimony given by the defendant.”).

The Langs characterize any discrepancies or inconsistencies in

their testimony in comparison to the Task Force agents’ and their

prior inculpatory statements as merely a factual dispute

insufficient to warrant a finding of perjury. We disagree. Our

review of the record convinces us both Souphaphone and Douangmala

Lang knowingly lied on the witness stand during their trial. Like

the district court, we find much of their trial testimony at the

least highly inconsistent and at the most preposterous. We reject

the Langs’ assertion they received the two-level enhancement simply

because they decided to testify on their own behalf. Accordingly,

we conclude the district court properly enhanced Souphaphone and

Douangmala Lang’s sentences pursuant to U.S.S.G. § 3C1.1.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR

RESENTENCING.

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