F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 14 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-1086
(D.C. No. 96-CR-208-N)
DANIEL BAZEZA MAZUN, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL, and KELLY, Circuit Judges.
A jury convicted defendant-appellant Daniel Bazeza Mazun (“Mazun”) of
conspiracy to distribute methamphetamine. On appeal, he challenges (1) the
district court’s decision not to suppress evidence seized by police during a traffic
stop, (2) the conviction based on sufficiency of the evidence, and (3) the district
court’s sentence enhancement for being a leader or organizer of a criminal
activity. We affirm.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
BACKGROUND
At 1:30 in the morning of June 30, 1995, just outside of Las Vegas,
Nevada, Highway Patrol Officer Scott Majewski (“Majewski”) and his partner
observed a car driven by Mazun veer onto the paved shoulder of the road for
approximately 50-100 feet, after which the car returned to its proper lane. (Vol. 3
at 4). Majewski pulled Mazun over, asked to see his license, asked him a few
questions, gave him a verbal warning, and then returned his license. (Vol. 3 at
15). Majewski then asked if Mazun had any narcotics or weapons in the vehicle.
(Vol. 3 at 15). Mazun answered in the negative. (Vol. 3 at 15). Majewski asked
for permission to search the car, and Mazun consented. (Vol. 3 at 15-16). An
initial search by Majewski turned up no contraband or weapons. (Vol. 3 at 16).
Majewski then ordered a dog sniff of the car. 1 (Vol. 3 at 17). The drug dog
alerted to the trunk. (Vol. 3 at 18). A subsequent search of the trunk revealed
470 grams of methamphetamine. (Vol. 3 at 18-19). Authorities later found drugs
and related evidence after searching Mazun’s home in Colorado.
Mazun was indicted, tried, and convicted in the District of Colorado for
conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 846
and 841(a)(1), (b)(1)(A). 2 (Vol. 1, Doc. 4 & Vol. 2, Docs. 50, 51, & 62). At
1
Majewski had a drug dog with him on patrol. (Vol. 3 at 4).
2
Mazun also was convicted and sentenced under 21 U.S.C. § 853 (Vol. 2, Doc.
(continued...)
-2-
sentencing, the district court found Mazun to be an organizer or leader of a
criminal activity, and increased his offense level by four points under § 3B1.1(a)
of the United States Sentencing Guidelines (the “Guidelines”). (Vol. 9 at 7). The
court then sentenced Mazun to 324 months’ imprisonment. (Vol. 9 at 9).
The evidence introduced against Mazun at trial included the
methamphetamine found in Mazun’s car; marked cash, drugs, and drug
paraphernalia found in Mazun’s Colorado home in a bedroom occupied by co-
defendant Moises Mazun, Mazun’s brother; and testimony of witnesses who stated
that Mazun fronted them large quantities of drugs for resale. (Aplt. Br. at 14-15).
Mazun moved to suppress the methamphetamine seized by Majewski, and his
motion was denied. (United States v. Mazun, No. 96-CR-208N (D. Colo. Aug.
29, 1996) (unpublished order)). On appeal, Mazun claims that (1) the district
court erred in refusing to suppress the evidence seized by Majewski during the
traffic stop in Nevada; (2) the evidence was insufficient to support a conviction of
conspiracy to distribute methamphetamine; and (3) the district court misapplied
§ 3B1.1(a) of the Guidelines in adjusting his offense level upward for being the
organizer or leader of a criminal activity.
2
(...continued)
51), which he does not appeal
-3-
DISCUSSION
I. Suppression
Mazun challenges the district court’s refusal to suppress the evidence found
in his vehicle by Majewski on the ground that the stop and subsequent search and
seizure were illegal under the Fourth Amendment. He specifically charges that
(1) the initial stop was illegal; (2) Mazun’s consent to the search was involuntary;
and (3) Majewski’s use of the drug dog was unjustified. “When reviewing an
order granting or denying a motion to suppress, we accept the trial court’s
findings of fact unless clearly erroneous and consider the evidence in the light
most favorable to the district court’s determination.” United States v. Doyle, 129
F.3d 1372, 1375 (10th Cir. 1997).
“An investigative detention may be permissibly expanded beyond the
reason for its inception if the person stopped consents to that expansion.” United
States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997). Moreover:
When the driver has produced a valid license and proof of entitlement to
operate the car, the driver must be allowed to proceed without further delay
for additional questioning. Further questioning is permissible, however, if
(1) during the course of the traffic stop the officer acquires an objectively
reasonable and articulable suspicion that the driver is engaged in illegal
activity; or (2) the driver voluntarily consents to the officer's additional
questioning. Under the first set of circumstances, a Fourth Amendment
seizure has taken place, but it is reasonable and consequently
constitutional. Under the second set of circumstances, there is no seizure,
and hence the Fourth Amendment's strictures are not implicated.
United States v. Elliott, 107 F.3d 810, 813 (10th Cir. 1997) (internal citations and
-4-
quotations omitted).
Consent to a search is valid only if given voluntarily. See United States v.
McCurdy, 40 F.3d. 1111, 1119 )(10th Cir. 1994). “Whether or not a party has
voluntarily consented to a search is a question of fact that the district court must
evaluate in view of the totality of the circumstances.” Doyle, 129 F.3d at 1377;
see also Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417, 421 (1996). The mere
fact that the defendant was detained by police at the time of the request and was
not advised of his Fourth Amendment right to leave does not render the consent
involuntary. See Robinette, 117 S. Ct. at 421; Doyle, 129 F.3d at 1377. Instead,
a defendant challenging the voluntariness of his consent must show that the police
somehow coerced the consent. This inquiry requires the courts to look for
evidence of “physical mistreatment, use of violence, threats, threats of violence,
promises or inducements, deception or trickery, and the physical and mental
capacity of the defendant within the totality of the circumstances.” McCurdy, 40
F.3d at 1119; see also Elliot, 107 F.3d at 814 (because police officer did not
engage in any “coercive show of authority (e.g. leaning on Elliot’s car, using a
commanding tone of voice, physically touching Elliot, showing or touching
weapon, etc.)” consent to search was not coerced).
Here, the district court found that Majewski handed Mazun’s documents
back to him before asking for permission to search the vehicle. (Mazun, No. 96-
-5-
CR-208N at 3). At that point, Mazun was free to leave. Instead, he consented to
Majewski’s search of his vehicle. The evidence indicates that Mazun’s consent
was uncoerced. Majewski did not draw his gun, did not use or threaten to use
physical force against Mazun, and did not trick Mazun into consenting. Mazun
does not claim that he was physically or mentally impaired at the time he
consented to the search. Thus, the district court did not err in finding that
Mazun’s consent to Majewski’s search was consensual and not violative of
Mazun’s Fourth Amendment rights. 3
However, Mazun also contends that his consent was invalid because it
followed an illegal investigation and detention. See United States v. McSwain,
29 F.3d 558, 562 (10th Cir. 1994) (consent following an illegal detention is
involuntary unless the consent was given free of the “taint” of the unlawful stop).
Mazun cites to United States v. Gregory, 79 F.3d 973 (10th Cir. 1996), where this
court found an officer’s stop and subsequent search of a U-Haul truck that briefly
swerved off the road to be unreasonable. Nevertheless, whether or not
Majewski’s stop of Mazun was, like the stop in Gregory, unreasonable, Mazun’s
attorney conceded during the suppression hearing:
Your honor, Mr. Mazun’s position on the search is essentially
outlined in the supplemental motion. . . . [T]o eliminate one aspect
3
Because the consent to search was voluntary, we need not address the question of
whether a dog sniff of a car during a traffic stop qualifies as a “search.”
-6-
of it, one argument we raise the question of in that pleading, is whether
or not there was actually a valid traffic reason to stop the vehicle.
At this point, it would appear that there was a valid traffic reason,
as cited by the specific [statutory] provision that the officer cited, and
we won’t argue that point.
(Vol. 3 at 39). The trial court noted this concession (Vol. 1 Doc. 29 at 4), and the
issue was never raised again below. Because questions of fact such as
reasonableness are not subject to plain error review, we consider the issue of the
reasonableness of the stop to be waived on appeal. See United States v. Lee, 989
F.2d 377, 380 (10th Cir. 1993). Thus, we must assume that the stop was
reasonable. As a result, we find that Mazun voluntarily consented to the search,
and the district court did not err in denying Mazun’s suppression motion.
II. Sufficiency of the Evidence
In challenging the sufficiency of the evidence of a jury verdict, the
defendant is “faced with a high hurdle . . . this court must review the record de
novo and ask only whether, taking the evidence--both direct and circumstantial,
together with the reasonable inferences to be drawn therefrom--in the light most
favorable to the government, a reasonable jury could find the defendant guilty
beyond a reasonable doubt.” United States v. Voss, 82 F.3d 1521, 1524-25 (10th
Cir.) (quotation and citation omitted), cert. denied, 117 S. Ct. 226 (1996). This
standard is “highly deferential.” United States v. Lopez, 100 F.3d 113, 118 (10th
Cir. 1996).
-7-
In order to convict Mazun of conspiracy to distribute methamphetamine, the
government had to prove the following four elements:
(1) agreement with another person to violate the law;
(2) knowledge of the essential elements of the conspiracy;
(3) knowing and voluntary involvement; and
(4) interdependence among the alleged conspirators.
Id. (quotation and citations omitted). Mazun asserts that the bulk of the evidence
of his participation in the methamphetamine distribution conspiracy stems from
evidence seized from the room of his brother, Moises Mazun, who was residing
with Mazun at the time of the investigation. Mazun claims that the car he was
driving, in which Majewski found methamphetamine, actually belonged to his
brother, that the witness testimony against him is incredible, and that no police
officer ever actually saw him selling drugs to anyone. In short, Mazun claims that
he is being punished for the sins of his brother.
In addition to the evidence of large quantities of drugs, drug paraphernalia,
and marked drug money in Mazun’s home and the car he was driving, three
witnesses testified that they had either bought methamphetamine from Mazun
and/or had seen him deliver large quantities. (Vol. 5 at 346-54 & 449-59; Vol. 6
at 568-73, 582, & 644-46). Taken in the light most favorable to the government,
the government presented sufficient evidence of Mazun’s guilt.
III. Sentence Enhancement
Mazun challenges the court’s findings that (1) the conspiracy included five
-8-
or more people and (2) Mazun was a leader or organizer of that conspiracy. We
review a district court’s findings of fact at sentencing for clear error and the
application of the Guidelines to those facts de novo. See United States v.
Cordoba, 71 F.3d 1543, 1547 (10th Cir. 1995).
A defendant qualifies for a four-point increase in his offense level for
playing an “aggravating role” in the offense under § 3B1.1(a) if “the defendant
was an organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive.” First, the district court determined that
the conspiracy consisted of the following six individuals: Mazun, Mazun’s brother
Moises, Debra Davis, Stephanie Harris, Michael Harris, and Philip Storey. (Vol.
9 at 6-7). Mazun concedes that the conspiracy included the first four individuals
listed, but challenges the district court’s finding that Michael Harris and Philip
Storey were members of the conspiracy. However, Mazun does not say why he
challenges this finding. Because evidence presented to the district court indicated
that Michael Harris sold methamphetamine fronted by Mazun (Vol. 6 at 568-73),
the district court did not clearly err by finding that the conspiracy included at
least five people.
Second, the district court found:
[T]he defendant’s home in the small community of Bennett, Colorado was
the center distribution point for all persons distributing drugs in this
conspiracy. It is also evident . . . that the conspiracy was an ongoing,
established source of income for the defendant and that he organized and
-9-
implemented importation of the controlled substance from California into
Colorado. He controlled the price and the amount of the drug which was
delivered from various participants from time to time. These circumstances
are sufficient basis for treating [the defendant] as an organizer or leader.
(Vol. 9 at 7). Mazun claims that the facts before the court were sufficient only to
show that he was a supplier or distributor of methamphetamine, not that he
exerted the requisite control over others to qualify him as an organizer or leader.
However, even if Mazun did not exercise enough control over others to qualify as
a leader, the district court’s findings are sufficient to support a conclusion that
Mazun served as an organizer of the conspiracy. See United States v. Valdez-
Arieta, 127 F.3d 1267, 1272 (10th Cir. 1997) (defendant can organize illegal drug
distribution activity without exercising control over other participants by
coordinating and overseeing implementation of conspiracy including control over
financial arrangements and procuring supply of drugs). As a result, the district
court did not err by enhancing Mazun’s sentence under § 3B1.1(a).
CONCLUSION
For the reasons stated above, we AFFIRM.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
- 10 -