United States v. Luis Saiz

FILED
NOT FOR PUBLICATION
JUL 21 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-10061

Plaintiff - Appellee, D.C. No. 4:14-cr-00295-CKJ-
BGM-2
v.

LUIS CARLOS SAIZ, MEMORANDUM*

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 15-10131

Plaintiff - Appellee, D.C. No. 4:07-cr-01952-CKJ-
BGM-1
v.

LUIS CARLOS SAIZ, aka Luis Saiz,

Defendant - Appellant.

Appeals from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted July 19, 2016**
San Francisco, California

Before: GRABER and TALLMAN, Circuit Judges, and EDMUNDS,*** Senior
District Judge.

Defendant Luis Carlos Saiz appeals his convictions, after a jury trial, for

conspiracy to possess with intent to distribute less than 50 kilograms of marijuana,

in violation of 21 U.S.C. § 846, and possession with intent to distribute less than 50

kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). He

also appeals the district court’s revocation of his supervised release resulting from

his drug convictions. We affirm.

1. Defendant argues that his motion to suppress evidence should have been

granted because the border patrol officers did not have reasonable suspicion to

initiate the traffic stop. Reviewing de novo, United States v. Berber-Tinoco, 510

F.3d 1083, 1087 (9th Cir. 2007), we hold that reasonable suspicion justified the

traffic stop. To determine whether reasonable suspicion exists, we "must look at

the ‘totality of the circumstances’ of each case to see whether the detaining officer

**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Nancy G. Edmunds, Senior United States District Judge
for the Eastern District of Michigan, sitting by designation.
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has a ‘particularized and objective basis’ for suspecting legal wrongdoing." United

States v. Arvizu, 534 U.S. 266, 273 (2002).

The district court found the border patrol officers credible. The officers

testified that: the traffic stop took place on a road near the U.S.-Mexican border

that circumvents a border patrol check point; they knew the road to be a

thoroughfare for illegal narcotics; the traffic stop occurred late at night, and it was

not unusual for the officers to go an entire shift at that hour without seeing a single

vehicle on the road; the traffic stop occurred during a border patrol shift change,

which is a common time for drug smugglers to try to travel through the area; the

area where the traffic stop occurred was sparsely populated; the individuals in the

pickup truck did not appear to be local ranchers or campers because they drove

past the ranches and campsites in the area; the truck had dirt bikes in the back,

even though there were no dirt bike trails near the area and the weather was very

cold and not appropriate for dirt-bike riding; the officers had previously witnessed

smugglers’ attempts to use props—such as recreational utility vehicles or

motorcycles—in an attempt to blend in; and the driver rigidly grabbed the steering

wheel with both hands when he passed the officers. Defendant challenges each

fact individually by offering innocent explanations or questioning its relevance.

Although it is true that "each of the[] factors alone is susceptible of innocent

3
explanation, and some factors are more probative than others[, t]aken together, . . .

they sufficed to form a particularized and objective basis for . . . stopping the

vehicle." Id. at 277–78.

2. Defendant next claims that the evidence in the record was insufficient to

establish that he participated in a conspiracy to possess with intent to distribute

marijuana and that he possessed marijuana with intent to distribute. "[V]iewing the

evidence in the light most favorable to the prosecution," the evidence was

"adequate to allow any rational trier of fact to find the essential elements of [both

charges] beyond a reasonable doubt." United States v. Nevils, 598 F.3d 1158,

1164 (9th Cir. 2010) (en banc) (internal quotation marks, emphasis, and brackets

omitted).

Evidence at trial showed that Defendant was a passenger in a pickup truck

owned by his sister and driven by his co-defendant, Francisco Sosa. After the

truck was pulled over, one of the border patrol officers began to question Sosa.

Sosa, however, remained mostly silent and allowed Defendant to interject answers

explaining why they were traveling late at night and where they were heading.

Defendant said that he and Sosa had spent the day together riding the dirt bikes.

But both Defendant and Sosa were completely clean, and the only protective riding

equipment in the vehicle was a single pair of leather gloves—no helmets, goggles,

4
or pads. The officers eventually searched the truck and discovered large quantities

of marijuana hidden in a spare tire in the rear of the truck as well as in the purse of

a female passenger. Moreover, the government presented evidence at trial that

showed that the bikes were not operational and probably had not been used in

years. From that evidence, a reasonable juror could infer that Defendant both

conspired to possess and possessed marijuana with intent to distribute.

3. Defendant asserts that the district court abused its discretion in precluding

him from calling an expert witness at trial. We disagree. As Defendant concedes,

our caselaw is clear that a district court does not abuse its discretion when it

excludes an expert witness on account of an untimely disclosure of the witness.

See, e.g., United States v. W.R. Grace, 526 F.3d 499, 516 (9th Cir. 2008) (en

banc) ("[T]he government would violate [Federal Rule of Civil Procedure 16] if it

were to call expert witnesses who were not timely disclosed. Therefore, the district

court may properly rely on its Rule 16 authority where appropriate to enforce its

orders. . . . [T]he district court may exclude evidence as a sanction.").

4. Defendant requests that we reverse the revocation of supervised release if

we reverse the underlying convictions. But, as explained above, we affirm the

convictions.

AFFIRMED.