UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-10461
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KELLY STEWART,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
August 19, 1996
Before KING, JONES and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge.
Kelly Stewart entered a conditional guilty plea to possession
with intent to distribute methamphetamine, reserving her right to
contest the district court’s denial of her motion to suppress.
Stewart was sentenced to serve 120 months in prison and five years
supervised release. Stewart makes two complaints regarding her
motion to suppress: (1) the police officer’s warrantless search of
a medicine bottle exceeded the scope of her consent and (2) the
district court abused its discretion by denying defense counsel
adequate opportunity to cross-examine the Government’s only
witness. Stewart also appeals her sentence because the district
court did not sentence her to less than the statutory minimum
sentence. We affirm.
BACKGROUND
DEA task force Officer Gerald Beall testified that an
informant notified him that a one-way ticket from Los Angeles to
Tulsa through the Dallas-Fort Worth Airport was purchased that
morning with cash in the name of Mrs. L. Owens. This route was a
known drug flight route for the area and the informant was reliable
based on numerous other reliable tips.
Beall and Officer C. A. Martin, both dressed in plain clothes,
stationed themselves near the arrival gate for the Los Angeles
flight. While the passengers deplaned, Beall noticed that one of
them, Kelly Stewart, appeared nervous and as though she was trying
to detect whether people in the area were observing her. Beall
stated that Stewart exhibited the characteristics of a drug courier
because she paused and observed the people in the area after she
deplaned. The officers did not approach Stewart at that time but
waited until Stewart entered the boarding area for the connecting
flight to Tulsa.
Beall and Martin approached Stewart, identified themselves as
law enforcement officials and asked if they could speak with her.
Stewart agreed and showed Beall her airline ticket. It was a one-
way ticket from Los Angeles to Tulsa and had been purchased with
cash that morning in the name of Mrs. L. Owens. Beall then asked
Stewart if she was Mrs. Owens. Stewart replied that she was and
Beall asked to see some identification. Stewart handed Beall her
driver’s license and stated that her name was Kelly. The license
was an Oklahoma license, the picture on the license was Stewart’s,
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and the name on the license was Kelly Stewart. Beall testified
that during this conversation, Stewart appeared extremely nervous
and was trying to push her jacket under her chair.
Beall then asked Stewart whether she was carrying any illegal
drugs or a large amount of U.S. currency. Stewart replied that she
was carrying prescription medication. Beall and Stewart dispute
what happened next. Beall testified that Stewart produced a
plastic, amber medicine bottle from her purse and held it up for
Beall to see. Beall asked to look at the bottle, and Stewart
handed it to him. Stewart testified that Beall asked to look at
the bottle but that while she was looking for the bottle in her
purse, Beall told her that he would get it. He then took the purse
from Stewart and retrieved the bottle. In any event, both agree
that Beall asked to look at the bottle and Stewart consented.
Beall then opened the bottle, looked inside, and observed light
blue pills and a ziplock bag containing “an off white, cornmealish
type powdery substance” that Beall suspected was a controlled
substance.
Beall placed Stewart under arrest. As the officers were
escorting Stewart to the DEA task force office, Beall picked up
Stewart’s jacket and noticed that it was unusually heavy on one
side. He felt two bundles from the outside of the jacket. Beall
asked Stewart, “What’s this?” Stewart replied, “more stuff.” Beall
gave Stewart her Miranda warnings after they reached the task force
office. Beall retrieved the two bundles from the lining of
Stewart’s jacket. Each bundle contained a ziplock bag holding a
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substance similar to the substance in the original ziplock bag.
The substance from all three bags tested positive for
methamphetamine and weighed a total of 1,339.5 grams.
Stewart was indicted for and pled not guilty to possession
with intent to distribute a controlled substance in violation of 21
U.S.C. § 841(a)(1). Stewart moved to suppress all statements,
evidence and contraband obtained or confiscated because she was
stopped without reasonable suspicion, searched without probable
cause or consent, and questioned without Miranda warnings. After
a hearing the motion was denied. Stewart changed her plea to
guilty, was sentenced and now appeals.
I. Does At Mean In?
Stewart argues that she gave Officer Beall consent to look at
the medicine bottle but not in the medicine bottle. Therefore, his
look inside of the bottle was beyond the scope of her consent and
constitutes an unlawful search. We disagree.
Stewart does not challenge the voluntariness of the consent.
Therefore, we consider only whether Officer Beall’s conduct in
looking inside the medicine bottle exceeded the scope of the
consent. United States v. Rich, 992 F.2d 502, 505 (5th Cir.),
cert. denied, 502 U.S. 933 (1993).
The standard for measuring the scope of the suspect’s consent
is objective reasonableness. Id. at 505. Recitation of magic
words is unnecessary; the key inquiry focuses on what the typical
reasonable person would have understood by the exchange between the
officer and the suspect. Id. at 505-506. The scope of a search is
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generally defined by its expressed object. Florida v. Jimeno, 500
U.S. 248, 251 (1991); Rich, 992 F.2d at 506.
In Rich, a police officer asked the driver of a truck if he
was carrying any narcotics or weapons in the truck. After the
driver said no, the officer asked to “have a look in” the truck to
which the driver consented. The officer unlocked the truck, looked
inside and opened a suitcase that he found in the truck. The
officer discovered marijuana in the suitcase and arrested the
driver. The Court held that the suitcase search was not beyond the
scope of the driver’s consent and that “any words, when viewed in
context, that objectively communicate to a reasonable individual
that the officer is requesting permission to examine the vehicle
and its contents constitute a valid search request for Fourth
Amendment purposes.” Rich, 992 F.2d at 506.
Objective reasonableness is a question of law reviewed de
novo. Rich, 992 F.2d at 505; United States v. Ibarra, 965 F.2d
1354, 1357 (5th Cir. 1992)(en banc)(7-7 decision). Factual
circumstances surrounding the consent may be important in
determining the nature of the consent and how a reasonable officer
would have understood that consent. Rich, 992 F.2d at 505.
Beall was caught traveling under an assumed name and was
nervous when speaking to the officers. Stewart knew Beall’s
purpose because he asked Stewart if she was carrying any illegal
drugs or weapons before asking to look at the bottle. This
question establishes the object of the search. See Rich at 507.
Because Stewart knew her deception was uncovered and that Beall was
5
looking for illegal drugs, it is objectively reasonable to expect
Beall to look in the bottle after being granted permission to look
at the bottle. The search was within the scope of Stewart’s
consent.
II. Limitation of Cross-Examination of Government Witness.
Stewart argues that the district court abused its discretion
when it limited her examination of the Government’s only witness,
Officer Beall, at her suppression hearing. Defense counsel
questioned Beall on cross-examination during the Government’s case-
in-chief and on direct examination during her own case-in-chief.
The Confrontation Clause of the Sixth Amendment protects a
defendant’s right to conduct cross-examination. Pennsylvania v.
Ritchie, 480 U.S. 39, 51 (1987).1 A trial court is given wide
latitude in imposing reasonable restraints upon a defendant’s right
to cross-examination. United States v. Alexius, 76 F.3d 642 (5th
Cir. 1996). We review the trial court’s restriction of the scope
of cross-examination for abuse of discretion. Id. at 644.
1
We recognize that the right to cross-examine is a trial right
designed to prevent improper restrictions on the types of questions
that defense counsel may ask during cross-examination. Ritchie,
480 U.S. at 52. However, we safeguard the right to cross-examine
at the suppression hearing because the aims and interests involved
in a suppression hearing are just as pressing as those in the
actual trial. See, United States v. De Los Santos, 810 F.2d 1326
(5th Cir.), clarified on reh’g, 819 F.2d 94 (5th Cir.), cert.
denied, 484 U.S. 978 (1987)(discussing a defendant’s right to
public trial as applied to a suppression hearing). While the pre-
trial nature of the hearing is a consideration in some judicial
inquiries determining rights of confrontation, compromise of
confrontation clause protections before trial seems to be allowed
only when a defendant is given a full opportunity to cross-examine
adverse witnesses. See United States v. De Los Santos, 819 F.2d 94
(5th Cir. 1987)(on reh’g).
6
At the suppression hearing, the Government called Officer
Beall as its only witness. On cross-examination and on direct
examination during Appellant’s case-in-chief, the district court
prevented defense counsel from asking any questions prefaced by a
reference to earlier testimony, and mistakenly considered questions
repetitious which were not.
(on cross-examination)
Q.2 If I understand your testimony correctly, you said--
C. Let’s don’t rehash his testimony. Just ask him questions
about things he hasn’t already told you about.
Q. Well, Judge I’m going to ask him about--
C. Don’t ask him to repeat his testimony.
Q. Yes, sir. Did you ask my client to look in the bottle or look
at the bottle?
A. I asked for permission to look at the bottle.
Q. So you looked at, not in.
C. And if you repeat the same question twice, I’m going to
assume you’ve run out of good questions to ask and your
questioning will be terminated. You may proceed.
Q. Officer, can you answer my question.
C. He’s answered your question. You may proceed.
Q. Your honor, I didn’t hear his answer.
C. You may proceed to a new question.
* * *
(11 questions later)
Q. Exactly what information did they [informant] give you
regarding Ms. Kelly Stewart?
A. The only information that was given to me was that a female
2
Statements introduced by “Q.” are statements by defense
counsel. Those introduced by “C.” are statements by the court.
Those introduced by “A.” are by the witness.
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had purchased a cash, one-way ticket from Los Angeles to Tulsa
with a stop at Dallas/Fort Worth Airport. And that the female
had purchased the ticket under the name of Mrs. L. Owens.
Q. So the informant did not give you a physical description.
C. Have you told him everything the informant told you?
A. Yes, Sir.
C. You may to on to another subject now.
Q. Your honor, If I might ---
C. You might go on to another subject. He’s already told
you what the informant told him
Q. Your Honor, reasonable suspicion is what he has to have to
detain my client.
C. You may go on to another subject. He’s told you what the
informant told him.
Q. The informant gave you no description.
C. Pardon me. Are you through with your examination?
Q. No, Your Honor.
C. You’re going to be through with it real fast if you don’t
move on to another question.
Q. Your Honor, I believe I have the right--
C. You may move on to another question. I don’t want any
back talk or argument with me. Go on to another
question.
Q. Your Honor, would the Court show my objection, and I would
like to ask another question in that area.
C. No, you cannot ask another question on the subject he’s
already answered.
Q. Could you show my objection for the record.
C. Would you please proceed. We’re wasting enough time with
your conduct. Please proceed.
* * *
(2 questions later)
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Q. When you were at the gate area, what exactly were you looking
for?
A. We didn’t know.
Q. So you had no idea what you were looking for?
A. I had not received that information at the time we got to the
gate.
Q. So it would be your testimony you were looking for -- just
watching people?
C. Okay. You’re through with your examination of this
witness. I’ve warned you every way I can warn you [sic]
we’re not going to play games and continue to ask the
same question two or three different ways. You may be
seated.
* * *
(on direct examination)
Q. Officer, when you testified earlier that she --
C. Let’s don’t go over what he’s testified to earlier. I
have everything he said. Let’s go on to new subjects,
new questions. It doesn’t have to be a new subject.
Something that hasn’t been asked before, and certainly
don’t ask him to repeat what he’s already said.
Q. You testified that she was nervous when she got off the plane
C. Okay. You may be seated.
The district court prevented defense counsel from clarifying
earlier testimony and putting his questions in the context of prior
testimony. We realize that defense counsel could have reworded the
questions in such a way as to avoid specific referral to prior
testimony, but we will not enforce a requirement to do so under
these facts. Here, the district court’s restriction was so severe
and so swift that it amounts to an abuse of discretion.
Confrontation Clause errors are subject to harmless-error
analysis. Delaware v. Van Arsdall, 475 U.S. 673, 682 (1986). “The
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correct inquiry is whether, assuming that the damaging potential of
the cross-examination were fully realized, a reviewing court might
nonetheless say that the error was harmless beyond a reasonable
doubt.” Id. at 684.3 Factors to consider are the importance of
the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise
permitted, and the overall strength of the prosecution’s case. Id.
Officer Beall was the Government’s only witness making his
testimony crucial to the prosecution’s case. There was no
corroborating evidence but Stewart did not materially dispute his
testimony. On appeal, Stewart does not articulate specific
prejudice suffered. However, in a motion for reconsideration,
Stewart submitted 24 questions she would have asked Officer Beall
at the hearing. While many of the questions were repetitive,
Stewart would have asked about reasonable suspicion for the stop.
Particularly, Stewart would have asked Officer Beall details
regarding his determination that Stewart was nervous, one of
Officer Beall’s bases for reasonable suspicion. Absent a complete
recantation by Officer Beall, the questions would not have altered
the result of the hearing.
Officer Beall testified on direct that Stewart paused and
3
Van Arsdall addresses the standard to be applied when the
error occurs at trial. We do not decide whether the “beyond a
reasonable doubt” standard must be applied to suppression hearing
errors because the errors in this case are harmless beyond a
reasonable doubt.
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looked around the area as if she was trying to determine whether
she was being watched. This explanation satisfies Stewart’s
inquiries. Additionally, Officer Beall articulated several other
bases for reasonable suspicion which, even absent nervousness, are
sufficient: (1) a tip from a reliable informant, (2) Stewart’s
arrival on the flight from Los Angeles, a known drug flight, and
preparation to board the connecting flight to Tulsa, which was
consistent with the tip, (3) Stewart was carrying several large
purses and a cloak-type cape, and (4) Stewart’s ticket was
purchased under a different name, which was also consistent with
the tip. Officer Beall’s articulated reasons are sufficient to
find reasonable suspicion. See, United States v. Simmons, 918 F.2d
476 (5th Cir. 1990) and United States v. Gonzales, 842 F.2d 748
(5th Cir. 1988), overruled on other grounds, United States v.
Hurtado, 905 F.2d 74 (5th Cir. 1990). The limitation of Stewart’s
cross-examination was harmless error.
III. Entitlement to Safety-Valve Departure
Stewart argues that she is entitled to a sentence less than
the statutory minimum sentence under § 5C1.2 of the United States
Sentencing Guidelines, sometimes referred to as the safety-valve
amendment. Section 5C1.2 and 18 U.S.C. § 3553(f) provide that a
defendant may receive less than a statutory minimum sentence if the
defendant’s guideline imprisonment range falls below the statutory
minimum4 and the defendant meets five criteria. The district court
4
Under the Guidelines, Stewart would have been sentenced
within a range of 87 - 102 months imprisonment. The statutory
minimum sentence for possession with intent to distribution 1.3
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found that Stewart did not meet the fifth criteria and she
challenges the requirement as unconstitutional as applied in this
case.
U.S.S.G. § 5C1.2(5) states in pertinent part:
(5) not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government all
information and evidence that the defendant has concerning the
offense or the offenses that were part of the same course of
conduct or of a common scheme or plan . . .
Stewart’s request for a sentence under § 5C1.2 was denied a because
she did not identify the other participants in the methamphetamine
operations.
Stewart argues, without authority, that § 5C1.2(5) is
unconstitutional as applied because it subjects her to cruel and
unusual punishment and involuntary servitude. To meet the
requirement, she argues she must subject herself and her family to
violent retaliation by the people she is required to identify and
forces her to work as an informant for the Government. The claim
lacks merit.
While this Circuit has not before addressed these challenges
to § 5C1.2, we have addressed similar challenges to § 3E1.1 which
allows a reduction in a defendant’s offense level for acceptance of
responsibility. In United States v. White, 869 F.2d 822 (5th
Cir.), cert. denied, 490 U.S. 1112 and cert. denied sub nom.
Chambless v. United States, 493 U.S. 1001 (1989), the defendant
challenged the constitutionality of U.S.S.G. § 3E1.1 because it
kilograms of methamphetamine is 120 months, the term to which
Stewart was sentenced.
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encourages defendants to forego a jury trial in return for a lesser
sentence. The court answered, “[t]he fact that a more lenient
sentence is imposed on a contrite defendant does not establish a
corollary that those who elect to stand trial are penalized.”
White, 869 F.2d at 826.
This position was strengthened in United States v. Mourning,
914 F.2d 699 (5th Cir. 1990)(statutorily overruled in part on other
grounds) in our response to another challenge to § 3E1.1. In
Mourning, the defendant was denied an acceptance of responsibility
decrease in his offense level because he did not accept
responsibility for relevant conduct. The Court ruled that a
defendant must accept responsibility for all relevant conduct and
that § 3E1.1 was not unconstitutional.
‘To hold the acceptance of responsibility provision
unconstitutional would be to say that defendants who
express genuine remorse for their actions can never be
rewarded at sentencing’ . . . [S]hould the defendant
choose not to accept responsibility for all of his
relevant criminal conduct, nothing happens. No increase
in punishment occurs. The previously calculated
guideline range remains constant. . . To the extent the
defendant wishes to avail himself of this provision, any
dilemma he faces in assessing his criminal conduct is one
of his own making.
Mourning, 914 F.2d at 707 (quoting Roberts v. United States, 445
U.S. 552 (1980)).
The same reasoning applies to Stewart’s challenge to § 5C1.2.
The fact that a more lenient sentence is imposed on a defendant who
gives authorities all of the information possessed by the defendant
does not compel that defendant to risk his or his family’s lives
nor does it compel a defendant to work for the Government. Stewart
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can refuse the option and receive the statutory sentence under the
regular sentencing scheme.
AFFIRMED.
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