United States v. Silva-Arzeta

FILED
United States Court of Appeals
Tenth Circuit

April 27, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 07-5140
IVAN A. SILVA-ARZETA, a/k/a Ivan
Selva, a/k/a Tony Arellano Cebrero,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. 4:06-cr-00120-TCK-1)

William D. Lunn, Tulsa, Oklahoma, for Defendant - Appellant.

Leena Alam, Assistant United States Attorney, (David E. O’Meilia, United States
Attorney, with her on the brief), Tulsa, Oklahoma, for Plaintiff - Appellee.

Before BRISCOE, HOLLOWAY, and HARTZ, Circuit Judges. *

HARTZ, Circuit Judge.

*
The Honorable Stephanie K. Seymour was assigned to this panel originally
and heard argument on June 16, 2008. She later recused herself, however, and the
Honorable Mary Beck Briscoe was substituted on the panel.
 A jury convicted Ivan Silva-Arzeta of possession of methamphetamine with

intent to distribute, see 21 U.S.C. § 841, possession of a firearm in furtherance of

a drug-trafficking offense, see 18 U.S.C. § 924(c), and possession of a firearm by

an illegal alien, see 18 U.S.C. § 922(g)(5). On appeal he contends (1) that he did

not give valid consent to the search of his apartment that yielded drugs and a

firearm; (2) that his right to due process was violated when a police officer

questioned him in Spanish without using an interpreter; and (3) that he was

entitled to discovery regarding alleged evidence tampering between his first trial

(which ended in a mistrial) and the trial at which he was convicted. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

Although we will later have occasion to note Mr. Silva-Arzeta’s version of

some events, we begin by summarizing the evidence in the light most favorable to

the district court’s ruling on the consent issue. See United States v. Apperson,

441 F.3d 1162, 1184 (10th Cir. 2006) (appellate court reviews evidence regarding

consent in light most favorable to lower court’s ruling). On May 31, 2006, Tulsa

Police Officer William Mackenzie was conducting surveillance at an apartment

complex as part of a gang-related investigation. He saw a series of persons make

brief visits to one of the apartments (not the one that he was there to observe) in a

manner he associated with drug sales. He saw Mr. Silva-Arzeta leave the

apartment, drive away, and return after a short time, using a key to re-enter.

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Mr. Silva-Arzeta then left the apartment and drove away a second time. He was

not wearing a seatbelt. Mackenzie contacted Officers Joshua Martin and David

Brice, who were in a marked police vehicle near the apartment complex. He

described the car and asked them to conduct a traffic stop. When Mr. Silva-

Arzeta drove past, the officers stopped him. Martin had observed that Mr. Silva-

Arzeta was not wearing a seatbelt.

Martin approached Mr. Silva-Arzeta’s car and, speaking English, gave the

reason for the stop and asked to see Mr. Silva-Arzeta’s driver’s license and proof

of insurance. Mr. Silva-Arzeta answered in English that he had no license.

Although Mr. Silva-Arzeta spoke with an accent, Martin had no trouble

understanding him. Martin ordered him to exit the car and told him that he was

under arrest for driving without a license. Mr. Silva-Arzeta complied with the

order, giving no indication that he did not understand. Martin handcuffed him.

Brice conducted an inventory search of the car and found a small quantity of

methamphetamine in a plastic baggie inside a chewing-gum package. Martin

searched Mr. Silva-Arzeta’s person incident to his arrest and found $1,038 in cash

in one of his pockets.

Mackenzie arrived at the scene as Brice was searching the car. Mackenzie

confirmed with Martin, who was standing with Mr. Silva-Arzeta, that the latter

spoke English. Mackenzie then asked Mr. Silva-Arzeta whether he was willing to

talk. Mr. Silva-Arzeta said, “Yes,” R., Vol. III at 10, and Mackenzie gave him a

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Miranda warning in English. When asked whether he understood, Mr. Silva-

Arzeta responded that he did. Mackenzie noted that Mr. Silva-Arzeta’s English

was accented and thought that he probably spoke Spanish. Mackenzie asked

Mr. Silva-Arzeta whether the methamphetamine found by Brice belonged to him;

he answered, “Yes.” Id., Vol. XIII at 114. But he answered, “No,” when

Mackenzie asked whether he had any methamphetamine at his apartment. Id. at

114. Mackenzie then asked whether he could search the apartment, and

Mr. Silva-Arzeta responded, “Yeah.” Id., Vol. III at 11. Mackenzie does not

speak Spanish and did not attempt to converse with Mr. Silva-Arzeta in Spanish

at any point.

Mackenzie, Martin, and Brice, now joined by an additional officer, took

Mr. Silva-Arzeta back to the apartment complex. Mackenzie led him to the

apartment that he had seen him enter and leave earlier and asked in English

whether it was his. Mr. Silva-Arzeta responded “Yeah,” id. at 12, and said that

there was no one inside. After knocking, Mackenzie asked whether he could use

Mr. Silva-Arzeta’s key, which the officers had seized at the traffic stop, to open

the door. Mr. Silva-Arzeta again answered affirmatively, and the officers entered,

bringing him inside with them. The officers’ search yielded two scales, a

semiautomatic pistol and ammunition, 261.2 grams of methamphetamine, two

packages containing plastic baggies, $4,820 in cash, and false identity documents.

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 After the search the officers took Mr. Silva-Arzeta to a police substation.

Mackenzie contacted Detective Frank Khalil, who had been certified by a local

company as a Spanish-language speaker, and asked him to interview Mr. Silva-

Arzeta in Spanish. Although Mr. Silva-Arzeta had conversed with the officers in

English, Mackenzie thought that he would be more comfortable and provide more

useful information if he were interviewed in Spanish. Khalil joined Mr. Silva-

Arzeta in a room at the substation and, speaking in English, introduced himself as

a Spanish-speaking officer and asked whether Mr. Silva-Arzeta knew why he had

been arrested. He answered in English that his arrest had to do with the drugs

found in his car and apartment. Khalil then read Mr. Silva-Arzeta a Spanish-

language waiver of rights, which Mr. Silva-Arzeta signed. During the following

interview both men spoke in Spanish. In response to Khalil’s questions, Mr.

Silva-Arzeta said that he had been in the United States for about a year and had

lived in the apartment for about a month. He said that he had bought

methamphetamine for resale twice, both times from a source named Ricardo, and

most recently had bought seven or eight ounces for about $400 an ounce. He

explained that he resold the methamphetamine in “20s,” or half-gram packets. R.,

Vol. III at 45. Mr. Silva-Arzeta also told Khalil that the money seized from his

apartment was from drug sales and that he had bought the handgun at a gun show.

Khalil’s interview with Mr. Silva-Arzeta was not recorded, nor did Mr. Silva-

Arzeta make or sign a written statement.

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 A superseding indictment charged Mr. Silva-Arzeta with possession of 50

grams or more of methamphetamine with intent to distribute, see 21 U.S.C. § 841;

possession of a firearm in furtherance of a drug-trafficking crime, see 18 U.S.C.

§ 924(c); and possession of a firearm by an alien unlawfully in the United States,

see id. §§ 922(g)(5). 1 (The first count was later changed to a reduced charge of

possession with intent to distribute 50 grams or more of a mixture containing a

detectable amount of methamphetamine.) The first jury to hear Mr. Silva-

Arzeta’s case failed to reach a verdict on any of the three counts. A second jury

convicted him on all three.

II. DISCUSSION

A. Validity of Consent to Search

Before trial Mr. Silva-Arzeta sought to suppress the methamphetamine,

firearm, and ammunition found in the apartment. The district court denied the

motion after holding an evidentiary hearing. Mr. Silva-Arzeta contends that the

court erred in finding that he had validly consented to the apartment search. He

1
The superseding indictment also charged Mr. Silva-Arzeta with three
offenses based on documents found in his apartment: use of a false Social
Security number, see 42 U.S.C. § 408(a)(7)(B); possession of false identification
documents (a Social Security card and a resident-alien card) with intent to
defraud the United States, see 18 U.S.C. § 1028(a)(4); and possession of a
counterfeit immigration-identification document, see id. § 1546(a). He pleaded
guilty to these three charges. He does not raise on appeal any issue relating to
these convictions; accordingly, we do not discuss them further.

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complains that his consent was ineffective because he could not understand

English and because it was coerced. We are not persuaded.

At the evidentiary hearing, Officers Mackenzie, Martin, and Khalil testified

that they had spoken English to Mr. Silva-Arzeta and that he had answered them

in English. Mr. Silva-Arzeta denied that he had conversed with any of the

officers in English or that he had understood anything that they had said to him in

English (save for the word license, which is similar in Spanish). In particular, he

said that he did not understand the request to search the apartment. As for his

conversation in Spanish with Khalil, he said that he did not recall making various

statements that Khalil reported him to have made. And he specifically denied

telling Khalil that he had bought methamphetamine for resale, that he had sold

“20s” of the drug, that the cash seized at the apartment was drug-sale proceeds, or

that he had bought the gun at a gun show. Mr. Silva-Arzeta’s former employer,

Mark Fairbairn, also testified to Mr. Silva-Arzeta’s limited ability to speak and

understand English. Fairbairn said that he often communicated with Mr. Silva-

Arzeta through a bilingual employee, but conceded that these exchanges were

mostly technical ones about the operation of machinery.

The court denied the motion to suppress in a written order. It concluded

that Mr. Silva-Arzeta had given the officers valid consent to search the apartment

and

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 specifically [found] that Silva spoke and understood English well
enough to give his consent. . . . Silva’s claim that a language barrier
prevent[ed] him from voluntarily consenting is not preclusive where
the evidence demonstrates that he had a working knowledge of the
English language. A working knowledge exists if the individual has
sufficient familiarity with the English language to understand and
respond to the officer’s questions. Silva’s claim that he neither
spoke nor understood any English is simply not credible.

R., Vol. I Doc. 22 at 6–7 (citations and internal quotation marks omitted). The

court also determined that although Mr. Silva-Arzeta was handcuffed when he

was asked for consent to search the apartment, there was no evidence that he was

intimidated or harassed in such a way as to render his consent involuntary.

“When reviewing the denial of a motion to suppress, we view the evidence

in the light most favorable to the government, accept the district court’s findings

of fact unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment.” Apperson, 441 F.3d at 1184

(internal quotation marks omitted). Under the Fourth Amendment, “a search

conducted without a warrant issued upon probable cause is per se unreasonable[,]

subject only to a few specifically established and well-delineated exceptions.”

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (internal quotation marks

and ellipsis omitted). “[O]ne of the specifically established exceptions . . . is a

search that is conducted pursuant to consent.” Id. “Whether voluntary consent

was given is a question of fact, determined by the totality of the circumstances

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and reviewed for clear error.” United States v. Zubia-Melendez, 263 F.3d 1155,

1162 (10th Cir. 2001).

Mr. Silva-Arzeta’s principal argument on appeal is that his alleged consent

could not have been valid because he did not understand English well enough. He

contends that the evidence overwhelmingly showed that he was unable to

understand “all but the most rudimentary English terms” and thus “lacked the

understanding and judgment required to give valid consent.” Aplt. Br. at 22

(internal quotation marks omitted). Relying heavily on Fairbairn’s testimony,

Mr. Silva-Arzeta makes good arguments that he could not have understood the

officer’s request for consent. But such arguments are for the trier of fact, not this

court. The district court could properly believe the internally consistent

testimony of the officers. See United States v. Burson, 531 F.3d 1254, 1259 n.4

(10th Cir. 2008) (appeals court defers to trial court’s credibility determinations).

Its finding that Mr. Silva-Arzeta understood English sufficiently well to give

consent was not clearly erroneous.

Mr. Silva-Arzeta points to our decisions in United States v. Rodriguez, 525

F.2d 1313 (10th Cir. 1975), and United States v. Benitez-Arreguin, 973 F.2d 823

(10th Cir. 1992), saying that these cases “invalidated searches based on consents .

. . given by Hispanics who did not comprehend what they were doing.” Aplt. Br.

at 28. In neither case, however, did we overturn a district court’s finding

regarding the defendant’s ability to understand English. They are therefore

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irrelevant to the issue before us. We affirm the district court’s ruling that

Mr. Silva-Arzeta could converse in English sufficiently well to consent to the

search. 2

Mr. Silva-Arzeta also contends that the district court erred in concluding

that his consent to the apartment search was voluntary. “Voluntariness is a

question of fact to be determined by the totality of circumstances, and we cannot

overturn the district court’s findings of fact unless they are clearly erroneous.”

United States v. Dozal, 173 F.3d 787, 795 (10th Cir. 1999) (citations and internal

quotation marks omitted). “The central question is whether a reasonable person

would believe he was free to . . . disregard the officer’s request.” United States v.

Ledesma, 447 F.3d 1307, 1314 (10th Cir. 2006) (internal quotation marks

omitted). “The proper inquiry centers on whether the defendant suffered, inter

alia, physical mistreatment, use of violence or threats of violence, promises or

inducements, deception or trickery.” Dozal, 173 F.3d at 796 (internal quotation

marks omitted). The district court addressed these issues and found that

although Silva was in handcuffs and therefore detained, this fact
alone does not render Silva’s consent involuntary. Other officers
were present when Silva consented, but there is no evidence that the
officers used any violence, threats, promises, trickery, or other forms
of intimidation or deception that would render Silva’s consent

2
Mr. Silva-Arzeta also argues that testimony at trial supports him on this
point. But we will not review trial evidence to overturn a pretrial denial of a
motion to suppress unless the motion was renewed at trial. See United States v.
Parra, 2 F.3d 1058, 1065 (10th Cir. 1993).

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 involuntary. Silva’s consent was specific and unequivocal, as well as
freely and intelligently given.

R., Vol. I Doc. 22 at 7–8 (citation omitted).

Those findings are not clearly erroneous. We consider the circumstances

when Mr. Silva-Arzeta gave his consent, shortly after his arrest several blocks

from his apartment. (Mr. Silva-Arzeta’s brief incorrectly focuses on what he

terms “the coercive atmosphere on the front porch of [his] apartment as the

officers initiated their entry,” Aplt. Br. at 28.) Several factors reduced the

possibility of intimidation. The scene was a public street. See United States v.

Soto, 988 F.2d 1548, 1558 (10th Cir. 1993) (upholding a voluntariness finding in

part because officer asked for consent to search “on the shoulder of an interstate

highway, in public view”). Mackenzie gave Mr. Silva-Arzeta a Miranda warning

before requesting consent. See United States v. Sawyer, 441 F.3d 890, 895 (10th

Cir. 2006) (“Whether an officer reads a defendant his Miranda rights . . . [is a]

factor[] to consider in determining whether consent given was voluntary . . . .”).

There is no evidence that any officer’s service weapon was unholstered at any

point. See United States v. Kimoana, 383 F.3d 1215, 1226 (10th Cir. 2004)

(following case law finding consent to be voluntary when guns were holstered

before request to search). Nor is there any evidence that Mackenzie used an

aggressive or insisting tone or that he conveyed in any way to Mr. Silva-Arzeta

that he was obligated to allow the search. See Ledesma, 447 F.3d at 1314.

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 Mr. Silva-Arzeta points to the number of officers present at the traffic stop

when he gave consent to the search. But Officer Martin was 10 to 15 feet away,

preparing a tow-in slip for Mr. Silva-Arzeta’s car, while Mackenzie was

questioning him and requesting consent. And Officer Brice was apparently also

involved in conducting an inventory search of Mr. Silva-Arzeta’s car during

Mackenzie’s conversation with Mr. Silva-Arzeta. The presence of Martin and

Brice therefore was unlikely to have produced much of a coercive effect on

Mr. Silva-Arzeta. Cf. United States v. Cruz-Mendez, 467 F.3d 1260, 1265 (10th

Cir. 2006) (presence of several officers not dispositive). Mr. Silva-Arzeta also

argues that he was coerced because the officers were holding his key. But the

officers’ retention of his key added no coercion beyond that inherent in his arrest.

Once he was under arrest, he had no immediate use for his key. To be sure, we

have considered an officer’s retention of a person’s property as relevant in

determining whether the person has been involuntarily detained, as when an

officer does not return license and registration documents to a driver after a

traffic stop. See United States v. Villegas, 554 F.3d 894, 898 (10th Cir. 2009). In

this case, however, there is no dispute that Mr. Silva-Arzeta was being

involuntarily detained when he gave consent.

Thus, the basis of Mr. Silva-Arzeta’s claim of coercion amounts to simply

his being arrested and handcuffed. We recognize that arresting and handcuffing

are coercive acts. But the consent of a handcuffed arrestee may well be

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voluntary. See Dozal, 173 F.3d at 796 (“Supreme Court and Tenth Circuit

precedent establishes that consent to search may be voluntary even though the

consenting party is being detained at the time consent is given.” (brackets and

internal quotation marks omitted)); Carpenter v. United States, 463 F.2d 397, 401

(10th Cir. 1972) (consent voluntary after being arrested and handcuffed); United

States v. Strache, 202 F.3d 980, 986 (7th Cir. 2000) (voluntary consent by

defendant who had been handcuffed for 20 minutes). We affirm the district

court’s ruling that Mr. Silva-Arzeta’s consent to the search was valid.

B. Admission of Officer Khalil’s Testimony

Before his second trial Mr. Silva-Arzeta filed a motion in limine seeking to

preclude Khalil from testifying “as an expert interpreter” about the incriminating

statements made by Mr. Silva-Arzeta in Spanish during questioning by Khalil.

R., Vol. I Doc. 78 at 1. Mr. Silva-Arzeta questioned the bona fides of Khalil’s

certification in Spanish, Khalil’s formal training in Spanish, and his ability to

converse in the language. He also argued that Khalil’s role as an investigating

officer made him a biased interpreter and that his failure to record or memorialize

Mr. Silva-Arzeta’s incriminating statements cast further doubt on his testimony.

After a hearing the district court denied the motion to exclude Khalil’s testimony,

although the court never had to resolve whether Khalil had the credentials

requisite for an expert because the government did not offer him as an “expert”

witness.

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 On appeal Mr. Silva-Arzeta recasts his argument, contending that Khalil’s

interrogation violated his right to due process and that his statements to Khalil

were therefore inadmissible at trial. He complains that Khalil was not properly

certified as an interpreter, that Khalil’s status as a law-enforcement officer should

have precluded him from acting as an interpreter for a police interrogation, and

that the failure to record the interrogation prevents verification of his

incriminating statements. We reject the argument.

“As applied to a criminal trial, denial of due process is the failure to

observe that fundamental fairness essential to the very concept of justice.”

United States v. Solomon, 399 F.3d 1231, 1240 (10th Cir. 2005) (internal

quotation marks omitted) (rejecting claim that defendant was denied due process

by allegedly erroneous rulings on evidence); see also United States v. McHorse,

179 F.3d 889, 896 (10th Cir. 1999) (admission of evidence under Fed. R. Evid.

414(a) “was not so prejudicial as to violate the due process protections of the

Fifth Amendment”). What Mr. Silva-Arzeta sees as unfair in the admission of

Khalil’s testimony is, in essence, that Khalil may have reported the conversation

incorrectly because of his lack of understanding of Spanish or his bias as a police

officer, and that the failure to record or memorialize the conversation impaired

Mr. Silva-Arzeta’s ability to correct Khalil’s errors.

Mr. Silva-Arzeta’s concerns, however, are the bread and butter of litigation.

Much of the controversy at trials could be minimized, if not eliminated, if all acts

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were videotaped and all conversations recorded. Mr. Silva-Arzeta’s complaints

derive from an alleged problem with interpreting Spanish; but assertions that an

officer misinterpreted a defendant’s words arise often enough when all

participants are speaking English. Although there may be inaccuracies in Khalil’s

testimony, cross-examination and presentation of contrary evidence (such as Mr.

Silva-Arzeta’s own testimony) are what we rely on to assess the truth. Due

process might require a witness to have a threshold capacity to understand

Spanish before the witness is permitted to testify about a conversation in that

language; but we see no ground to reject the district court’s determination that

Khalil had sufficient knowledge of Spanish to testify.

Mr. Silva-Arzeta cites three authorities—a Justice Department policy-

guidance document and two court decisions—that he contends support a due-

process standard for custodial interrogations of persons with limited English

proficiency. But none of these authorities purports to set a constitutional

standard. Although they suggest what “best practice” may be, due process does

not require so much.

The Justice Department’s guidance recommends that certified interpreters

other than police officers be used in custodial interrogations, and that the

interrogation be recorded if conducted by an officer. The document makes clear,

however, that it “is not a regulation but rather a guide.” Guidance to Federal

Financial Assistance Recipients Regarding Title VI Prohibition Against National

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Origin Discrimination Affecting Limited English Proficient [LEP] Persons,

67 Fed. Reg. 41,455, 41,457 n.2 (June 18, 2002); see also id. at 41,469 (“[I]n

formulating a plan for effectively communicating with LEP individuals, agencies

should strongly consider whether qualified independent interpreters would be

more appropriate during custodial interrogations than law enforcement personnel

themselves.” (emphasis added)).

The first judicial opinion that Mr. Silva-Arzeta relies on is the Ninth

Circuit decision in United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991). He

points to the following language:

Where translation is needed in the course of an open investigation or
interrogation following arrest, there is no reason why the interview
cannot be recorded and/or the translation cannot be conducted by a
certified translator who can be available to testify at trial.

Id. at 527 n.7. But the court made this comment in the course of observing that

certified translators and recordings ordinarily could not be employed in

undercover investigations, which was the situation in that case. See id. The issue

before the court was whether statements made by an interpreter, who was

translating the defendant’s statements in a drug transaction, should be considered

to be statements by the defendant herself for purposes of the hearsay rule and

Confrontation Clause. The opinion makes no mention of due process, which is

the issue before us.

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 The other judicial opinion is Rivera v. Granucci, No. N-87-480, 1993 WL

76202 (D. Conn. Mar. 12, 1993). Mr. Silva-Arzeta quotes the following passage:

“[A] defendant who does not speak English surely has a right to foreign-language

interpretation in court proceedings, during police interrogations, and in any

situation involving the waiver of his rights.” Id. at *8. This statement, however,

was dictum. The claim of the defendant was that he should have been informed

of the charges against him “in Spanish either directly or through an interpreter.”

Id. The court’s holding was that the defendant was not entitled to have an

interpreter inform him in Spanish of the reason for his arrest, because a defendant

has no constitutional right to be informed of the reason for his arrest in any

language. In context the court’s quoted comment is stating no more than that a

person who cannot speak English has a right to be questioned in a language that

he does speak.

We can agree with Mr. Silva-Arzeta that the use of certified interpreters

and recording devices during interrogation could improve the accuracy of

evidence at trial. We cannot, however, hold that their use is constitutionally

required.

C. Alleged Tampering with Evidence/Request to Examine Jurors

The charge against Mr. Silva-Arzeta of possession of methamphetamine

with intent to distribute was based on the discovery of 261.1 grams of the drug

during the search of his apartment. The methamphetamine was found in a drawer

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of a dresser in the apartment’s living room. Mr. Silva-Arzeta suggested at trial

that the methamphetamine was not his but belonged to his roommate. As part of

its effort to prove otherwise, the prosecution compared some empty baggies found

in the apartment to the pink plastic baggie containing methamphetamine that was

found in Mr. Silva-Arzeta’s car. During the search of the apartment, officers had

found two packages of plastic baggies (marked as Exhibit 5), one with purple

baggies and one with pink baggies, in the same dresser drawer as the

methamphetamine. Mackenzie testified that traffickers commonly sell

methamphetamine and other drugs in such baggies to users for various prices,

depending on the size of the baggie. He further testified at the first trial that the

pink baggies found in the apartment matched the pink baggie taken from the car.

Shortly before jury selection at Mr. Silva-Arzeta’s second trial, his counsel

examined Exhibit 5. Counsel discovered that Exhibit 5 contained pink baggies of

two sizes, and that the larger size matched the size of the pink baggie from the

car. He raised the matter with the district court, expressing surprise at the

discovery because he recalled that at the first trial the pink baggies in the exhibit

did not match the pink baggie found in Mr. Silva-Arzeta’s car. He said that

during his closing argument at the trial he had even taken pink baggies out of the

exhibit and showed the jury that they were not the same size as the baggie from

the car. He suggested that someone had tampered with the evidence between the

two trials. But he requested no relief, saying only: “One of my reactions would

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be if you actually had some of the jurors who—in the first trial that might have

seen the evidence and whether they might have compared those baggies and what

they remember. That might be an issue.” R., Supp. Vol. I at 35.

During the second trial Mr. Silva-Arzeta questioned Mackenzie about the

chain of custody of the baggies between the two trials, although no question

suggested that there had been tampering. The court denied the challenge to the

chain of custody, and Mackenzie testified that the baggie found in Mr. Silva-

Arzeta’s car matched some of the baggies in Exhibit 5.

After trial Mr. Silva-Arzeta moved to examine the jurors from both trials,

indicating that this examination could ground a motion for a new trial on the basis

of newly discovered evidence. In support, his counsel reiterated his suspicions of

evidence-tampering, but he mentioned no evidence of tampering beyond what he

had pointed to at the outset of the second trial. He argued that

the only realistic way of resolving whether the Government’s Exhibit
5 . . . was augmented with additional pink baggies is to ask the jurors
from the first trial whether Government’s Exhibit 5 in the second
trial appears to be the same, or different. If the first panel of jurors
during their deliberations actually took out the pink baggies in
response to defense counsel’s argument and found that none matched
the pink baggie found in . . . the Defendant’s car, then the jurors
from the first panel could be quite emphatic that the pink baggies
contained in Government’s Exhibit 5 in the second trial do not
match.

Id. Vol. I Doc. 92 at 8. The district court denied the request. Applying the

standard set forth in United States v. Velarde, 485 F.3d 553 (10th Cir. 2007), for

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postverdict discovery to support a motion for a new trial based on newly

discovered evidence, it said that Mr. Silva-Arzeta had not shown that “‘further

investigation under the court’s subpoena power very likely would lead to the

discovery of’ evidence sufficient to support a motion for a new trial or, at least, a

motion for evidentiary hearing on a new trial.” R., Vol. I Doc. 101 at 14 (quoting

Velarde, 485 F.3d at 560 (brackets and emphasis omitted)).

Mr. Silva-Arzeta appeals the denial of his motion. We affirm the district

court, but without reference to the Velarde standard. See United States v.

Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009) (“We can affirm on a ground not

relied upon by the district court if the record requires affirmance on that ground

and it is not unfair to the appellant to rely on that ground.”). As the district court

noted in its order denying the motion, the government had argued that the

discovery sought by Mr. Silva-Arzeta could not generate newly discovered

evidence because he had known the facts underlying his motion even before the

jury was empaneled for his second trial. We agree with that argument. A

defendant requesting a new trial based on newly discovered evidence must have

been diligent in seeking the evidence before the verdict was rendered. See United

States v. Herrera, 481 F.3d 1266, 1270 (10th Cir. 2007) (“[T]o prevail on a

motion for a new trial based on newly discovered evidence, [a defendant] must

show [among other things] that . . . the failure to learn of the evidence was not

caused by his own lack of diligence.” (internal quotation marks omitted)); United

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States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997) (defendant not entitled to

new trial; he could reasonably have anticipated relevance of, and sought before

trial, school attendance records showing that a government witness had been

absent on a critical date); United States v. Robinson, 585 F.2d 274, 278 (7th Cir.

1978) (en banc) (new-trial motion properly denied; defendant “must establish that

the material asserted to be newly discovered could not have been discovered with

due diligence before or during trial”; defendant did not request continuance

during trial to examine gun at issue); cf. United States v. Diaz-Albertini, 772 F.2d

654, 657 (10th Cir. 1985) (“[W]hen a litigant is aware of alleged juror misconduct

during trial it is ineffective to raise the issue for the first time after trial. . . . The

litigant cannot transform a tactical decision to withhold the information from the

court’s attention into a trump card to be played only if it becomes expedient.”).

The time for Mr. Silva-Arzeta to seek evidence regarding tampering was

before the verdict was rendered. He did not have the option of awaiting the

verdict to determine whether to pursue his inquiry. He could have moved at trial

for a continuance, subpoenaed former jurors, or taken other steps to investigate

tampering. It is not uncommon for a court to conduct an investigation during trial

to determine whether there have been improper communications with jurors. See,

e.g., United States v. Barrett, 496 F.3d 1079, 1101–02 (10th Cir. 2007). There is

no reason why a similar inquiry into evidence tampering could not have been

conducted when Mr. Silva-Arzeta’s counsel first raised his concerns. He had no

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additional evidence of tampering when he made his posttrial motion. It is

therefore obvious that any evidence he might have acquired after a grant of his

posttrial motion could have been obtained before the verdict if he had acted

diligently. In other words, no evidence acquired by granting the motion could be

considered “newly discovered,” so granting the motion would be a useless act.

The district court expressed concern that Mr. Silva-Arzeta should not be

penalized for voicing his suspicions before and during trial. The problem for

Mr. Silva-Arzeta, however, is not that he voiced suspicions, but that he knew

during trial all the facts upon which his posttrial motion was based, yet did not

diligently pursue the matter. All he did during trial was question Mackenzie

regarding the chain of custody of Exhibit 5; he did not even specifically question

him about possible tampering and the size of the baggies. He contends that he

sought discovery during trial, but we disagree. After suggesting that Exhibit 5

had been altered, all that defense counsel said was: “One of my reactions would

be if you actually had some of the jurors who—in the first trial that might have

seen the evidence and whether they might have compared those baggies and what

they remember. That might be an issue.” R., Supp. Vol. I at 35. This was too

tentative and oblique to constitute a request for discovery. Accordingly, we

affirm the denial of Mr. Silva-Arzeta’s motion to examine jurors.

III. CONCLUSION

We AFFIRM the judgment of the district court.

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07-5140, United States v. Silva-Arzeta

HOLLOWAY, J., dissenting:

I

The majority opinion is certainly well-reasoned. I cannot disagree with any

part of it. Extraordinary circumstances nevertheless lead me to conclude that I

cannot join the opinion, nor can I concur in the judgment. Instead, I feel

compelled to dissent. As I will discuss, the investigation of this matter involved

many deficiencies in law enforcement practices. None of them individually is so

significant as to rise to the level of a violation of Mr. Silva-Arzeta’s fundamental

rights. Frankly, even in combination these departures from good police practice

might not be enough to lead to the conclusion that the convictions should be

reversed, even though in combination they are very, very troubling. But this case

unfortunately involves much more than mere failure to follow good police

practices.

Extraordinary circumstances have convinced me that I cannot in good

conscience assent to affirm the judgment of the district court. These

circumstances concern the trial exhibits, especially Exhibit 5, which the court’s

opinion addresses in Part II-C. Exhibit 5 must be regarded as crucial evidence in

this case. As the majority opinion points out, defense counsel used this exhibit in

a demonstration before the jury in Mr. Silva-Arzeta’s first trial, showing the

jurors that the baggies in the exhibit did not match the baggie found in Mr. Silva-

Arzeta’s car. By showing the jurors in the first trial that the baggie found in his
client’s car was of a different size, defense counsel was able to call into question

the inference that the baggies connected Mr. Silva-Arzeta to the

methamphetamine found in the apartment.

The connection concerning the baggies was critical to the prosecution’s

case because Mr. Silva-Arzeta was charged with possession with intent to

distribute, and the prosecution did not contend that the small amount of

methamphetamine found in the car – methamphetamine that Mr. Silva-Arzeta

admitted was his – was sufficient to support an inference of intent to distribute.

When defense counsel examined Exhibit 5 just prior to commencement of the

second trial, he realized that he would not be able to make the same argument to

the second jury if the exhibit were to be admitted, because there were now many

baggies in the exhibit matching the one that had been found in Mr. Silva-Arzeta’s

car. It was at that point that counsel raised the serious possibility that there had

been tampering with the evidence.

The majority opinion notes that counsel for Mr. Silva-Arzeta challenged the

chain of custody at trial after questioning Officer Mackenzie about it. But the

majority does not fully explain the exceptional circumstances underlying the

chain of custody. The chain of custody issue was not an issue which Mr. Silva-

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Arzeta directly raised on appeal, but I would find there was plain error requiring

reversal of the convictions. 1

At the conclusion of the first trial, we are told, the parties were informed

that they would be responsible for their exhibits. At the second trial, counsel for

Mr. Silva-Arzeta was concerned about the exhibits, as recited in the court’s

opinion. When Exhibit 5 was offered in evidence, defense counsel requested and

was granted an opportunity to voir dire Officer Mackenzie about the chain of

custody. Officer Mackenzie testified that the night before trial he had received a

box containing all of the prosecution’s exhibits from ATF agent Brandon

McFadden, who was unavailable to testify at this trial for reasons that were

unexplored other than Officer Mackenzie’s explanation that Agent McFadden was

“on another case” which “has taken all his time . . . .” Officer Mackenzie then

put that box of exhibits in his vehicle, which was parked in the driveway of his

residence overnight. That is, in itself, most unusual.

But about two months had passed since the conclusion of the first trial.

Where was the box of exhibits during that time? Officer Mackenzie did not

know. And that is the totality of the chain of custody testimony regarding the

prosecution’s exhibits.

1
In his reply brief Mr. Silva-Arzeta asserts that he had raised the issue in
his opening brief, but I do not believe that he did.

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 Given the trial court’s broad discretion in the receipt of evidence, in most

cases we would not find plain error in such an evidentiary ruling. But in these

truly extraordinary circumstances I believe that we can and should find plain error

in this evidentiary ruling. The trial judge’s admission of Exhibit 5 in the face of

the abject failure to establish the chain of custody was an abuse of discretion.

Under these unusual circumstances I would find that it was plain error to

admit Exhibit 5 and would therefore reverse the convictions.

II

I add the following observations because I am genuinely troubled by the

confluence in one case of so many law enforcement practices that fall short of

inspiring full confidence. And of course I hope that remedial measures will be

taken. It is certainly in the interests of law enforcement to at least strive to

follow “best practices.”

As the court’s opinion points out, “best practices” were not followed during

Mr. Silva-Arzeta’s interrogation at the police station. Unfortunately, there are

other instances in the case in which best practices were ignored. Officer

Mackenzie took the lead in questioning Mr. Silva-Arzeta at the scene and

obtaining his consent to search the apartment. As the court’s opinion notes,

Officer Mackenzie spoke to Silva-Arzeta in English and later testified that Silva-

Arzeta appeared to have understood the questions, but the officer also noted

Silva-Arzeta’s accent and quickly inferred that Silva-Arzeta probably was more

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comfortable speaking in Spanish (and so Mackenzie did not himself conduct the

later interrogation at the station). In these circumstances, it is surprising that the

officer did not follow the common practice of asking Mr. Silva-Arzeta to give

written consent to the search of his apartment. 2

When it appears that the services of an interpreter are necessary at trial, the

Court Interpreters Act provides for appointment of a certified interpreter, as was

provided for Mr. Silva-Arzeta in both of his trials on the present charges. Officer

Khalil is not a certified interpreter but a police officer who had attained some

minimal level of proficiency through a program intended to train officers to deal

with situations often faced in the course of their duties when circumstances do not

permit use of fully trained interpreters. As this case demonstrates, however, it

may be cold comfort indeed to provide a criminal defendant with the services of a

certified interpreter at trial when the most damning evidence to be admitted at

that trial is a challenged translation of the defendant’s own statements made

during interrogation. Thus the Justice Department recommends use of certified

interpreters instead of police officers, as the court’s opinion notes, and the

department recommends the recording of interrogations as an alternative. Neither

of these better practices were followed in this case. Nor did Officer Khalil even

ask Mr. Silva-Arzeta to make a written statement at the end of the interrogation,

2
Of course I do not suggest that oral consent is invalid or ineffective. This
case illustrates, however, the prudence of the practice of obtaining written
consent where practical.

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another practice that our cases show is commonly used by many law enforcement

agencies.

Again, none of these practices is mandatory under the Due Process Clause.

But the repeated instances in a single case of failure to follow preferred

procedures raises serious concerns.

III

Therefore, I must respectfully dissent. I would reverse in the interests of

justice.

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