United States v. DeBrew

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 12, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 10-2120
NATHAN DEBREW, SR., (D.C. No. 2:09-CR-02054-MCA)
(D.N.M.)
Defendant-Appellant.

ORDER AND JUDGMENT *

Before LUCERO, TACHA, and BALDOCK, Circuit Judges.

To make a long story short, law enforcement officials at the eastbound

Lordsburg, New Mexico, Port of Entry uncovered 260 kilograms of marijuana in the

cargo hold of a tractor trailer driven by Defendant Nathan Debrew, Sr. A jury

subsequently convicted Defendant on one count of possession with intent to

distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 841, and

one count of conspiracy to commit the same in violation of 21 U.S.C. § 846. The

district court sentenced Defendant to 120-months imprisonment. Defendant appeals.

Our jurisdiction arises under 28 U.S.C. § 1291. We summarily affirm.

*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.

On appeal, Defendant raises three claims of error. First, Defendant claims the

district court erred in denying his motion to suppress the fruits of a purportedly

illegal search. In written findings and conclusions, the district court bypassed the

question of whether New Mexico’s regulatory scheme for conducting port-of-entry

warrantless inspections of commercial vehicles lawfully authorized a state inspector

to search the contents of individual boxes inside Defendant’s trailer. See N.M. Stat

Ann. § 65-5-1. Instead, the court held the inspector had probable cause to search the

boxes: “[G]iven the totality of the circumstances, [the inspector] possessed the

necessary ‘particularized and objective basis’ for suspecting that illegal conduct was

occurring.” United States v. Debrew, Sr., No. 09-CR-2054-MCA, Memorandum

Opinion & Order at 24 (D.N.M., filed December 31, 2009) (Doc. #131) (quoting

United States v. Ledesma, 447 F.3d 1307, 1316 (10th Cir. 2006)).

Second, Defendant claims the district court abused its discretion in allowing

the Government to introduce at trial evidence of his prior drug trafficking conviction.

Applying the four factor test first outlined in Huddleston v. United States, 485 U.S.

681, 691–92 (1988), the district court ruled in limine that the Government could

offer into evidence, pursuant to Fed. R. Evid. 404(b), portions of Defendant’s 1994

plea agreement in federal court. 1 Therein, Defendant pled guilty to one count of

1
Rule 404(b) provides in relevant part that “[e]vidence of other crimes . . .
(continued...)

2
conspiracy to distribute “kilogram quantities” of cocaine hydrochloride in violation

of 21 U.S.C. § 846. Noting the circumstances surrounding Defendant’s prior

conviction and his current predicament were “remarkably similar,” the court

concluded in a written order: “[T]he proffered evidence is highly probative of

(1) Mr. Debrew Sr.’s plan; (2) Mr. Debrew’s knowledge that there was a controlled

substance in his trailer; and (3) the fact that the marijuana did not end up in Mr.

Debrew Sr.’s vehicle by accident or mistake.” United States v. Debrew, Sr., No. 09-

CR-2054-MCA, Memorandum Opinion & Order at 8 (D.N.M., filed Jan. 26, 2010)

(Doc. #152). Subsequently at trial, the Government introduced, through the

testimony of Federal Agent Darren Rhoden, redacted versions of the plea agreement

and judgment of conviction. See Supp. R.O.A., Vol. 1, Pt. 4 of 4, at 382–92; Gov’t

Add. at 2–6 (Gov’t Exhs. 29 & 30).

Third, Defendant claims the district court abused its discretion in prohibiting

him from introducing at trial the post-arrest statement of his co-defendant and son,

Nathan Debrew, Jr., that Defendant “don’t have nothing to do with this.” Inspectors

discovered Debrew, Jr., inside the vehicle’s cab subsequent to the search and arrested

him. The district court ruled, again in limine and in a written order, that such

1
(...continued)
is not admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident . . . .”

3
statement did not qualify as a “statement against interest” within Fed. R. Evid.

804(b)(3)’s exception to the hearsay rule. 2 The court concluded Debrew, Jr.’s

statement was not against his penal interest because to deny Defendant’s involvement

was to deny his own involvement in the charged conspiracy. In considering several

factors relevant to the question of whether sufficient corroborating circumstances

existed to establish the statement’s trustworthiness, the court further concluded that

Defendant had “not satisfied his formidable burden of showing the existence of

corroborating circumstances that clearly demonstrate the trustworthiness of Mr.

Debrew, Jr.’s statement[].” Doc. #152, at 17.

II.

We have carefully reviewed both the pretrial and trial record in this case, the

parties’ written and oral arguments, the apposite portions of the district court’s

written orders, and the applicable law including the appropriate standards of review.

Suffice to say the district court’s analyses and resolutions in the first instance of the

claims Defendant raises on appeal were both thorough and proper, and we have little

to add. As to Defendant’s claim that the inspector lacked probable cause to search

2
Rule 804(b)(3) excludes from the hearsay rule a “statement against interest”
if the declarant is unavailable as a witness. At the time of Defendant’s trial, the rule
defined such statement as one “which at the time of its making . . . so far tended to
subject the declarant to . . . criminal liability . . . that a reasonable person in the
declarant’s position would not have made the statement unless believing it to be
true.” The rule further provided that “[a] statement tending to expose the declarant
to criminal liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the statement.”

4
his tractor trailer, we note only that Defendant’s focus on the inspector’s subjective

intentions and motivations is wholly misplaced. “An objective standard measures

probable cause – whether the facts and circumstances within the officer’s knowledge

sufficiently warrant an officer of reasonable caution to believe contraband or

evidence of a crime will be found.” United States v. Stephenson, 452 F.3d 1173,

1177 (10th Cir. 2006). Applying that standard, the district court’s findings of facts

surrounding the search are supportable and its conclusion that the warrantless search

was reasonable is sound. As to Defendant’s two claims of evidentiary error, we note

only that Defendant has not made the showing necessary for us to conclude the

district court abused its discretion. That is to say Defendant has not made a “distinct

showing” that the district court’s rulings were “based on a clearly erroneous finding

of fact or an erroneous conclusion of law or manifest[] a clear error of judgment.”

United States v. Batton, 602 F.3d 1191, 1196 (10th Cir. 2010) (defining the abuse

of discretion standard). Where the district court accurately analyzes the issues in a

case and articulates a cogent rationale based upon the relevant facts and applicable

law, no useful purpose is served by us writing at length. See United States v.

Schmidt, 353 Fed. Appx. 132, 134 (10th Cir.2009). This is such a case. Accordingly

we affirm substantially for the reasons set forth in the district court’s written orders

5
at issue in this appeal. See Doc. #131, at 1–9, 14–26, 37–38; Doc. #152, at 1–19,

45–47.

AFFIRMED

Entered for the Court,

Bobby R. Baldock
United States Circuit Judge