933 F2d 1017 United States v. Orduno-Martinez

933 F.2d 1017

Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee.
v.
Ramon ORDUNO-MARTINEZ, Manuel Machuca-Leyva, Sergio
Rivera-Morales Alfredo Gonzalez-Morales, Francisco
Gonzalez-Martinez, Marco Isidro Medina-Hermosillo, Julio
Gomez-Padilla, Arturo Urias-Gastelum, Blas Rafael
Tirado-Garcia, Arturo Trujillo-Garcia, Defendants-Appellants,

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

Nos. 89-50490 to 89-50499.

2

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 9, 1990.
Decided May 22, 1991.

3

Before REINHARDT and LEAVY, Circuit Judges, and KING,*, District Judge.

4

MEMORANDUM**

KING, District Judge:

5

This drug conspiracy case involves ten defendants. The defendants were tried in two separate trials.1 Each was convicted of various drug related offenses.2 All ten have filed appeals, many of which involve similar, if not identical, issues.

BACKGROUND

6

On the morning of December 5, 1988, United States Customs inspectors and agents at Otay Mesa, California, were alerted by a confidential informant to watch for a vehicle bearing a particular license plate. At approximately 9:30 a.m., an orange tractor truck (hereinafter referred to as the "decoy truck"), pulling a white trailer and bearing the suspect license number was found parked at the south dock of the commercial port of entry at Otay Mesa, awaiting inspection. When the decoy truck was unloaded over the course of the next few hours, Customs inspectors determined that it was carrying approximately 20,000 pounds of bagged mesquite charcoal. The driver was given clearance papers to enter the United States.

7

At approximately noon, after the decoy truck had been inspected and cleared, the driver, appellant Gonzalez, moved it from the south dock to the east dock and reported it a second time for inspection. Because different Customs inspectors work the south and east docks, the inspectors at one dock area are not normally aware that a truck has previously reported at another dock, been inspected, and cleared for entry into the United States.

8

At the east dock, Customs Inspector Henry received paperwork indicating that the decoy truck had reported for inspection. From the paperwork, he called out the name of the driver. Gonzalez reported to Henry and they walked together over to the decoy truck. Henry instructed Gonzalez to have the right half of the truck's cargo unloaded onto the dock. After the truck was unloaded, Gonzalez contacted Henry to tell him the truck was ready for inspection. Henry inspected the cargo, determined it was all charcoal, and told Gonzalez to reload his truck. Approximately one-half hour after the second inspection was complete, the decoy truck was still parked at the east dock. Because other trucks were awaiting inspection, Henry tried to locate Gonzalez to instruct him to vacate the space. After another half-hour, Gonzalez reappeared, was chastised by Inspector Henry for allowing his inspected truck to maintain a space so long, and explained to Henry that his delay was due to stomach problems.

9

At approximately 2:15 p.m., while the decoy truck was still parked at the east dock and being inspected a second time, Orduno drove into the commercial inspection compound in a second orange tractor truck (hereinafter the "loaded truck"), bearing license plates identical to the decoy truck and pulling another white trailer.

10

Orduno drove the loaded truck straight through the customs compound without reporting it for inspection. As Orduno exited the inspection area in the loaded truck, however, he presented for clearance the papers that were originally issued to Gonzalez at 9:30 a.m. These papers (from an unsuspecting customs agent's point of view) reflected that Orduno's truck had been inspected and cleared for entry into the United States.

11

Once Orduno left the commercial inspection area, he met briefly with appellant Machuca before driving the loaded truck along the border five to six miles to San Ysidro, California, where he parked the truck in a lot. Shortly after Machuca met with Orduno, Machuca met with Rivera, who was driving a white station wagon. Thereafter, Rivera followed Orduno and the loaded truck to San Ysidro.

12

Once parked in San Ysidro, Orduno and Rivera removed the license plates from the loaded truck. Orduno and Rivera then returned to the commercial port of entry at Otay Mesa in the white station wagon. Simultaneously, Gonzalez departed from the inspection compound in the decoy truck and presented the paperwork that had been issued to Orduno when he entered the inspection compound that afternoon in the loaded truck.

13

The decoy truck was then parked just inside the United States border. At some time between 4:00 and 4:30 p.m., Gonzalez, along with another unidentified person, met with Orduno and Rivera in the white station wagon, and then drove in the wagon to a restaurant in Otay Mesa.

14

After dining, the four left the restaurant and drove back to the decoy truck. Two of the four then got into the decoy truck (which had been under constant surveillance), and drove it back into Mexico following Orduno and Rivera, who remained in the station wagon. The decoy truck returned to Mexico without delivering its cargo.

15

While the preceding events were taking place, agents were maintaining constant surveillance on the loaded truck that had been parked earlier near the border by Orduno and Rivera.

16

That night, Customs Case Agent Deidre Mahon, suspecting contraband in the loaded truck, instructed a member of the surveillance team, San Diego Police Department narcotics officer Ben Pasana, to perform what the government characterizes as an "extended border search" of the loaded truck. Under Mahon's direction, Pasana drilled a small hole in the undercarriage of the truck with a twelve-inch drill bit. Upon removal of the drill bit, the agents conducted a field test on the debris stuck to the bit and determined that the truck contained marijuana.

17

Customs agents continued to watch the loaded truck throughout December 6, 1988, but no one came near it.

18

The surveillance continued into December 7, 1988. At approximately 12:15 a.m., appellants Machuca and Morales drove up to the loaded truck in a white Jetta and dropped off Orduno and Rivera. Orduno climbed into the driver's seat and Rivera got into the passenger's side. Orduno then drove the truck two and one-half hours north to Ontario, California. Machuca and Morales followed in the white Jetta. Government agents caravaned behind the loaded truck and the Jetta.

19

Orduno and Rivera eventually parked at a truck stop in Ontario and were picked up by Machuca and Morales. Machuca then drove the Jetta around the area before the four finally checked into the Landmark Inn, a motel adjacent to the truck stop.

20

Later that same day another appellant, Gomez, rented a yellow Ryder van and checked into a Travelodge in Ontario. From a pay phone at the Travelodge, Gomez called Gonzalez' residence in Muscoy, California, a town approximately ten to fifteen miles from the truck stop.

21

Early on the morning of December 8, 1988, agents observed Machuca and Morales leave a restaurant parking lot adjacent to the truck stop in the Jetta and drive eastbound on Interstate 10. A black Mustang and maroon van fell in behind the Jetta in caravan fashion. Several minutes later, Orduno and Rivera left the parking lot in the loaded truck and drove east on Interstate 10 before exiting onto a paved, two-lane country road leading to Muscoy. Agents followed the loaded truck, but did not follow the Jetta, Mustang, or maroon van after the truck left the interstate.

22

Once in Muscoy, Orduno and Rivera backed the truck into the fenced-in backyard of Gonzalez' residence. The white Jetta, the yellow Ryder van that Gomez had rented, and the maroon van were already parked on Gonzalez' property. The three occupants of the black Mustang were conducting what the government characterizes as "counter-surveillance" by driving continuously through the neighborhood.

23

Once the truck was backed onto Gonzalez' property, Government agents surrounded the area and observed the operation. One Riverside Police Department Officer, Ken Fouse, watched the appellants through gaps in the fence surrounding Gonzalez' backyard. According to Fouse, Orduno appeared to be directing the operation as Machuca, Gomez, Rivera, Medina, and Morales accessed a compartment in the cargo area of the truck and unloaded bales of marijuana from the truck into the Ryder van. Not all of the marijuana bales had been unloaded from the trailer when the Ryder van became full.

24

When the arrest signal was given, agents apprehended Orduno, Gonzalez, Machuca, Rivera, Morales, Medina, and Gomez in Gonzalez' backyard. Simultaneously, the black Mustang was stopped and its occupants, appellants Tirado, Trujillo, and Urias, were arrested. A subsequent search of the truck and Ryder van revealed approximately 4,484 pounds of marijuana. A half kilogram of cocaine was discovered in the residence.

DISCUSSION

25

A. Whether the trial court erred in refusing to suppress evidence arising from the warrantless search of the truck.

26

Appellants Orduno, Gonzalez, Machuca, and Medina object on appeal to the district court's admission of evidence seized from the warrantless search of the loaded truck by Officer Pasana on the night of December 5, 1988. Appellants argue that the search was unlawful on two grounds: (1) the Government failed to present adequate facts in support of the extended search theory; and (2) Officer Pasana lacked the requisite authority to conduct an extended border search.

1. Standing

27

As a preliminary matter we address the issue of standing to object to the search of the truck.

28

In this context, standing is controlled by United States v. Portillo, 633 F.2d 1313 (9th Cir.1980), cert. denied, 450 U.S. 1043 (1981). In that case, this court ruled that a driver who had permission to use the car that was the subject of a search, and who had the keys to the ignition and trunk, had a legitimate possessory interest in the automobile, and standing to object to the search. Id. at 1317. However, a co-defednant who was a passenger but who asserted neither a property nor a possessory interest in the vehicle, lacked standing to raise the same objection. Id. Following Portillo, Orduno, as driver of the truck, and Machuca, as part owner,3 have standing to object to the warrantless search. The record does not indicate that any of the remaining appellants had the requisite property or possessory interests. At best some of the remaining appellants simply helped to unload the marijuana from the truck. The singular act of unloading cargo does not alone confer standing to object to perceived Fourth Amendment violations. Accordingly, we hold that the remaining appellants lack standing to object to the search.

2. Lawfulness of the Search

29

Ordinary border searches are reasonable under the Fourth Amendment and require neither a warrant, probable cause, or even articulable suspicion. United States v. Ramsey, 431 U.S. 606 (1977); United States v. Alfonso, 759 F.2d 728 (9th Cir.1985). However, for a search occurring near the border within a reasonable time of entry to be justified as an "extended border search", the Government must demonstrate a reasonable suspicion. Alfonso, 759 F.2d at 734. Whether an extended border search was justified by reasonable suspicion is a question of law, subject to de novo review. United States v. Fouche, 776 F.2d 1398 (9th Cir.1985), cert. denied, 486 U.S. 1017 (1988).

30

The rationale for this rule is that warrantless searches at this country's international borders are per se reasonable.... The "extended border" doctrine is an expansion of this rule; it permits the Government to conduct border searches some time after the border has been crossed.

31

The validity of such a search depends on whether the fact finder, viewing the totality of the circumstances, is reasonably certain that the suspected smuggler did not acquire the contraband after crossing the border. Some of the circumstances that the fact finder should consider include the time and distance between the border crossing and the search, and the continuity of surveillance over the suspected smuggler. Id.

32

United States v. Caicedo-Guarnizo, 723 F.2d 1420, 1422 (9th Cir.1984) (citations omitted).

33

In this case, Customs inspectors and agents watched Orduno drive the loaded truck straight through the customs compound and into the United States without reporting it for inspection, apparently by switching paperwork with the decoy truck. The loaded truck and decoy truck were virtually identical. Both the loaded and the decoy truck were under constant surveillance while in the United States. The decoy truck returned to Mexico without delivering its cargo. Orduno drove along the border for approximately fifteen miles, parked, and then removed the license plates from the loaded truck. Those license plates were identical to those on the decoy truck. Both the loaded and decoy trucks reported importing mesquite charcoal, a product which both absorbs and masks the odor of narcotics. Finally, less than eight hours from the time Orduno drove the loaded truck into the United States, and after Government agents had it under constant surveillance and no one had opened, entered, or exited the loaded truck, Officer Pasana drilled into the undercarriage.

34

Under these facts, we conclude that law enforcement officers might reasonably suspect that the truck was being used to transport contraband, and, therefore, that their search was a valid "extended border search." Alfonso, 759 F.2d at 728.

3. Authority to Conduct the Search

35

Appellants next urge this court to invalidate the search of the loaded truck because Pasana, the officer who drilled the hole and discovered the marijuana, was employed by the San Diego Police Department and not the United States Customs Service.

36

The Alfonso court also addressed this issue. In Alfonso, the Los Angeles Police Department received a tip from an informant that a Colombian ship bound for the Los Angeles Harbor, the Santa Marta, would contain cocaine. As a result, a task force was assembled consisting of officers and agents of the Los Angeles Police Department, the Los Angeles County Sheriff's Department, the FBI, the DEA, the Customs Service, the Coast Guard, and the Los Angeles Port Warden's office. The task force observed persons coming and going from the ship before boarding and conducting a search some thirty hours later. In response to the argument that participation in the search by non-Customs agents invalidated the lawfulness of the search, the Alfonso court held that:

37

This contention is unacceptable. It is sufficient that the search be executed under the authority and direction of those agencies having jurisdiction in safeguarding the borders ...

38

Customs agents have specific authority to conduct border searches under 19 U.S.C. Sec. 482. Their presence and supervision distinguish this search from merely a "random" law enforcement effort; rather it was a planned, coordinated execution of an official inspection and search upon entry into the country. Given such authorization, there is no reason why the limited forces of the Customs Service, Border Patrol, Immigration officers, and similarly designated officials cannot enlist the aid of other forces in forming a task force sufficient to meet their needs.... [Appellant's] argument would have the Customs Service powerless to seek assistance from other law enforcement agencies in conducting border searches. Such restriction would make impossible many efforts to halt the illicit importation of contraband.

39

Alfonso, 759 F.2d at 735 (citations omitted).

40

The circumstances of San Diego Police Officer Pasana's search were markedly similar to those involved in Alfonso. Officer Pasana was a member of Operation Alliance, a unified law enforcement team assigned to the interdiction of drug smuggling on the Southwestern Border of the United States. He conducted the search under the authorization and direction of the United States Customs Service. Officer Pasana was specifically directed to conduct the search that disclosed the existence of contraband. The reasoning of Alfonso is equally applicable here. To deem Officer Pasana's search unlawful simply because he does not receive his paycheck from the Customs Service would make the Customs Service "powerless to seek assistance from other law enforcement agencies in conducting border searches. Such restriction would make impossible many efforts to halt the illicit importation of contraband." Id. at 735.

41

Accordingly, we conclude that the search of the loaded truck in San Ysidro on the night of December 5, 1988 was lawful. Officer Pasana had the requisite authority to conduct the search. The district court's refusal to suppress the evidence from the search is AFFIRMED.

42

B. Whether the district court erred in refusing to suppress the evidence seized at Gonzalez' residence.

43

Appellants Gonzalez, Orduno, Machuca, Rivera, Morales, Medina, and Gomez argue that the district court erred in refusing to suppress evidence seized from a warrantless search of the curtilage area of Gonzalez' residence. They assert that Officer Fouse violated Gonzalez' Fourth Amendment rights by peering through a fence into Gonzalez' backyard to observe the unloading activities of the appellants.

44

The government argues first that all appellants except Gonzalez lack standing to object to Fouse's observations, and second, that Fouse's observations were in any event perfectly legal under the plain view exception to the warrant requirement.

1. Standing

45

The ultimate legal conclusion that a person has standing to contest a search is subject to de novo review; all findings of fact are upheld unless clearly erroneous. United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). Fourth Amendment rights are personal rights and cannot be asserted vicariously by a merely interested party. Rakas v. Illinois, 439 U.S. 128, 134 (1978). A person may contest a search only if he proves a reasonable expectation of privacy which society is prepared to recognize. United States v. Kuespert, 773 F.2d 1066, 1068 (9th Cir.1985).

46

Appellants bear the burden of proving not only that Officer Fouse's observations were illegally made, but that they had a legitimate expectation of privacy while in Gonzalez' backyard. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). Excepting Gonzalez, however, nothing in the record supports any conclusion other than that appellants were one-time visitors at Gonzalez' residence with no authority to control the curtilage area of Gonzalez' residence or to exclude others from making observations there. Accordingly, we find that only Gonzalez has standing to object to the observations of Officer Fouse and the concomitant seizure of contraband.4 See Minnesota v. Olson, 110 S.Ct. 1684 (1990).

2. Discussion

47

The government contends that although Gonzalez does have standing to object to the "search" of the backyard, the observations of Officer Fouse fall within the plain view exception to the warrant requirement.

48

The plain view doctrine authorizes law enforcement officers to seize illegal or evidentiary items visible to the officers whose access to the object has a prior legal justification and who have probable cause to believe the item is connected with a criminal act. Illinois v. Andreas, 463 U.S. 765, 771 (1983). For a search and seizure to come within the scope of the plain view exception, two criteria must be met. First, there must be a legitimate prior justification for the officer's presence, and second, the incriminating nature of the evidence must be immediately apparent. Coolidge v. New Hampshire, 403 U.S. 443, 446-49 (1971).5

49

a) Legitimate Prior Justification

50

Officer Fouse's observations of the activities in the curtilage area of Gonzalez' residence were made from the vantage of a neighbor's backyard. The district court found that Fouse did have permission to be in the adjacent yard. The appellant argues that the evidence does not support the district court's conclusion.

51

In considering the ruling on a suppression motion, all facts must be construed in the light most favorable to the successful party below, Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Hood, 493 F.2d 677 (9th Cir.), cert. denied, 419 U.S. 852 (1974), and the district court's findings of fact will be upheld unless clearly erroneous. United States v. Feldman, 788 F.2d 544, 550 (9th Cir.1986), cert. denied, 479 U.S. 1067 (1987). In his pretrial written motions, Gonzalez argued only that he was arrested without probable cause on December 8, 1988, and that the search of the loaded truck on the night of December 5, 1988, was an unlawful extended border search. At the hearing on the motions, the government called witnesses to establish only that the extended border search was appropriate and that Officer Fouse's observations of the unloading of the marijuana created probable cause for the arrests. After Fouse's testimony, and without prior briefing or proper notice, Gonzalez' attorney argued that his client's expectation of privacy had been violated because Fouse had no permission to be in the neighboring yard. Although the government offered to brief the issue and to bring in witnesses, Judge Enright ruled that while the evidence "was not overwhelming," the record indicated that Fouse believed another agent had secured permission for Fouse to be in the neighbor's yard. At trial, Gonzalez voiced no further objection to Fouse's testimony of his observations through the fence. On cross-examination, however, Fouse stated that he believed fellow Officer Trent had secured permission to be in the yard. Neither the government nor Gonzalez ever called Officer Trent or the neighbor to testify.

52

On this record, the finding of the lower court that Fouse had permission to be where he looked through the fence was not supported by the evidence and is clearly erroneous. However, given the procedural posture in which the suppression issue was raised, the matter may be resolved on limited remand. See United States v. Brown, 475 F.2d 91, 91 (9th Cir.1973); United State v. Smith, 456 F.2d 1236, 1237 (9th Cir.1972).

53

This challenge to the introduction of the testimony of Officer Fouse was raised at a pretrial oral argument without notice to the government. The pretrial suppression motion only challenged the introduction of the evidence from the extended border search of December 5, 1988. The government thus called witnesses at the pretrial hearings to establish the validity of the extended border search as well as to establish that probable cause existed on December 8, 1988, to arrest Gonzalez. It was at this point that counsel for Gonzalez argued that his client's expectation of privacy had been violated by Officer Fouse's observations. Although the government requested leave to brief the issue and to supplement the record with additional witnesses, the district court ruled that the record indicated that Officer Fouse believed that another agent had secured permission for Fouse to be in the neighbor's yard.

54

On a limited remand, both sides may present additional evidence on the issue of whether a legitimate prior justification existed for Fouse to be in the neighbor's yard. Depending on the district court's finding on the challenge to Fouse's observations, the district court could order a new trial or resubmit the matter to this panel.

55

b) Nature of the Evidence

56

The second prong of the plain view doctrine requires that the incriminating nature of the evidence be immediately apparent. Coolidge, 403 U.S. at 446-49. In this case, Officer Fouse watched the appellant through slats 1/2 to 3/4 inches wide in the fence surrounding Gonzalez' backyard. Fouse could see through the fence with both eyes. Fouse observed defendants unaided by binoculars or other devices. Fouse had worked on some fifty cases involving bulk marijuana, and recognized the bales being moved by defendants as marijuana. Given the officer's considerable prior experience with bulk marijuana cases, we are convinced that the incriminating nature of the packages being unloaded from the truck would have been immediately apparent to Fouse. We are satisfied that the second prong of the plain view test is met.

57

c) Conclusion

58

If officers, relying only upon their own unaided senses, and legitimately at their place of observation, see through a fence no more than what the neighbors can see, there is no invasion of privacy, even though the defendants may have believed they enjoyed complete privacy. United States v. Martin, 509 F.2d 1211, 1214 (9th Cir.), cert. denied, 421 U.S. 967 (1975) (no violation to look through fence; whatever expectation of privacy defendants had was defeated by their own activities); see also United States v. Varkonyi, 645 F.2d 453, 457-58 (5th Cir.1981) (workers in the delivery area of a fenced yard were in a public place where the gate was open and they were clearly visible through the fence, even though they attempted to hide). The requirements of the plain view exception could be satisfied in this case. The decision of the district court is AFFIRMED IN PART AND REMANDED IN PART.

59

C. The District Court's Refusal to Reveal the Identity of the Confidential Informant.

60

Orduno, Gonzalez, Machuca, Rivera, Morales, Medina, and Gomez appeal the district court's refusal to reveal the identity of the confidential informant in this case.

61

The district court's decision on a motion to disclose an informant's identity or role in the offense is reviewed for an abuse of discretion. United States v. Alexander, 761 F.2d 1294, 1303 (9th Cir.1985).

62

In attempting to balance the Government's interest in non-disclosure against the defendant's interest in preparing his case, this court has held that the burden of establishing the need for disclosure is upon the accused. United States v. Prueitt, 540 F.2d 995, 1003-4 (9th Cir.1976), cert. denied, 429 U.S. 1063 (1977). The defendant must establish that the informant could provide information that would be "relevant and helpful to the defense of the accused...." United States v. Kelly, 449 F.2d 329, 330 (9th Cir.1971), quoting Roviaro v. United States, 353 U.S. 53 (1957).

63

From a review of a sealed transcript of the in camera hearing held by the district court concerning the knowledge of the confidential informant, we are convinced that the informant in this case could not have provided any exculpatory information helpful to any of the appellants. See Roviaro v. United States, 353 U.S. 53, 62 (1957). The district court did not abuse its discretion in refusing to divulge the informant's identity and its ruling is AFFIRMED.

64

D. Whether the Sentences Imposed Violate the Fifth or Eighth Amendments.

65

Gonzalez, Orduno, Trujillo, Machuca, Rivera, Morales, Medina, and Gomez each argue that their sentence, imposed pursuant to the Sentencing Guidelines, is unconstitutional because it is cruel and unusual and violates due process.

66

Whether a sentence is legal is an issue of law reviewed de novo. United States v. Pomazi, 851 F.2d 244, 247 (9th Cir.1988). A sentence within statutory limits is not normally subject to appellate review, although this court may review constitutional concerns. United States v. Citro, 842 F.2d 1149, 1153 (9th Cir.), cert. denied, 488 U.S. 866 (1988).

1. Eighth Amendment Challenge

67

Each appellant asserts that his sentence constitutes cruel and unusual punishment under the Eighth Amendment and is not proportional to his crime under Solem v. Helm, 463 U.S. 277, 290-91 (1983).

68

The Eighth Amendment's prohibition on cruel and unusual punishment forbids sentences which are disproportionate to the crime committed. United States v. Kinsey, 843 F.2d 383, 392 (9th Cir.), cert. denied, 487 U.S. 1223 (1988). In evaluating Eighth Amendment claims, reviewing courts must grant substantial deference to the broad authority of the legislature to set punishments for crimes. Solem, 463 U.S. at 290. "[O]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare." United States v. Kidder, 869 F.2d 1328, 1333 (9th Cir.1989), quoting Solem at 289-90.

69

In Solem, the Supreme Court enunciated a standard by which to measure proportionality between crimes and criminal sentences under the Eighth Amendment:

70

[P]roportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

71

Solem, 463 U.S. at 292.

72

The defendant in Solem was convicted in a South Dakota state court of uttering a "no account" check for $100. Because of his prior, primarily non-violent, felony convictions, he was sentenced under South Dakota's recidivist statute to life imprisonment without the possibility of parole. In applying the objective criteria to the facts, the Supreme Court found that the defendant had received the ultimate sentence for relatively minor criminal conduct; that he had been treated more harshly than other criminals in the state who had committed more serious crimes; and that he had been treated more harshly than he would have been in any other jurisdiction, with the possible exception of one other state. Consequently, the Court held that the sentence was significantly disproportionate to the crime, and was therefore prohibited by the Eighth Amendment. Id. at 303-04.

73

Unlike the crime committed in Solem, the crime of illegal narcotics trafficking is viewed by society as among the most serious offenses. In addition, Congress has recognized that violence frequently accompanies such trafficking.6

74

Unlike the severe sentence in Solem, the Anti-Drug Abuse Act ("Act") provides three levels of penalties for offenses which vary in severity according to the kind and quantity of controlled substance involved in the particular offense. Moreover, the penalties imposed for the crime of drug trafficking in the Act take into consideration many variable factors in each individual case, such as the type of controlled substance, the quantity, the prior criminal record of the defendant, and the use of violence.

75

The second part of the Solem test involves a comparison of sentences imposed on other criminals in the same jurisdiction. In Solem, the Court was concerned lest disproportionately high penalties be assessed for only some persons or some crimes. Obviously, the penalties in the new Act are standard. Thus, the appellants here are subject to the same penalty facing all similarly situated federal defendants.

76

Additionally, as this court noted in its extensive discussion of the sentencing scheme under 21 U.S.C. Sec. 841(b)(1)(B) in United States v. Klein, 860 F.2d 1489 (9th Cir.1988), other federal statutes impose similar or harsher penalties for other serious federal crimes.

77

A leading example is 21 U.S.C. Sec. 848(a). The penalty for operating a "continuing criminal enterprise [under 21 U.S.C. Sec. 848(a) ] may not be less than 10 years and ... may be up to life imprisonment," while a repeat offender "shall be sentenced to ... not less then 20 years [under this statute]."

78

....

79

Other federal criminal statutes impose a mandatory life sentence for the most severe grade of the offense. See 18 U.S.C. Sec. 1201(a) (kidnapping), 18 U.S.C. Sec. 1111(b) (murder), 18 U.S.C. Sec. 1651 (piracy under law of nations), 18 U.S.C. Sec. 34 (destruction of aircraft and motor vehicles resulting in death), and 18 U.S.C. Sec. 1203 (hostage taking).

80

Klein, 860 F.2d at 1498.

81

The third element of Solem requires a comparison of sentences imposed for the commission of the same crime in other jurisdictions. The legislatures of Florida and Georgia have adopted nearly identical drug trafficking statutes which provide for similar minimum mandatory sentences. Fla.Stat.Ann. Sec. 893.135 (West 1979); Ga.Code Sec. 16-13-31 (1981). These state drug trafficking statutes have been upheld in the face of nearly identical constitutional challenges.7

82

Accordingly, based upon our analysis under Solem, the weight of existing authority, and the need to afford due deference to the legislature in this area, we reject appellants' Eighth Amendment challenges.

2. Due Process Claim

83

Appellants next claim that the statutes under which they were sentenced create an irrational presumption which violates the due process clause of the Constitution. Oddly, however, none of the appellants specifies what part of the respective statutes creates an irrational presumption or what the irrational presumption is.8

84

The due process claims normally made regarding the current sentencing scheme involve: (1) whether the mandatory minimum sentence may be imposed on the basis of quantity of drugs without regard to purity level of the drugs (clearly inapplicable to marijuana); (2) that the statute does not require that the defendant know the amount of drugs involved; or (3) that the statute does not allow individualized sentencing. These claims have been rejected in this circuit and others. See, e.g., United States v. Brady, 895 F.2d 538 (9th Cir.1990) (sentencing guidelines do not violate due process for failure to allow individualized sentences); Klein, 860 F.2d at 1489 (sentencing is individualized by amount and variety of drug, and judicial discretion above mandatory minimum); United States v. Bishop, 894 F.2d 981 (8th Cir.1990) (punishment based on quantity of drugs does not violate due process); United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir.) (unnecessary for defendant to have subjective knowledge of quantity of drug in order to be sentenced to mandatory minimum), cert. denied, 486 U.S. 1058 (1988).

85

Hence, we reject appellants' due process challenges.

86

E. Whether the District Court Properly Denied Appellant Tirado's Motion to Suppress.

87

Tirado argues that the government lacked probable cause to arrest him and that, but for the search of Tirado subsequent to the arrest, the government did not have enough evidence to sustain his conviction. The evidence found on Tirado at the time of his arrest was a single piece of paper with Orduno's name on it.

88

The ultimate conclusion of whether probable cause exists is a mixed question of law and fact subject to de novo review. McConney, 728 F.2d at 1199-1204. The underlying facts, however, are reviewed under the clearly erroneous standard. People of Territory of Guam v. Ichiyasu, 838 F.2d 353, 356 (9th Cir.1988). Probable cause to arrest exists when the facts and circumstances are sufficient to lead a prudent person to believe that someone is committing or has committed an offense. Beck v. Ohio, 379 U.S. 89, 91 (1964). The fact that the acts observed by the officers may be consistent with innocent activity is of no consequence if, when viewed in light of the experience of the officers, criminal activity is indicated. United States v. Bates, 533 F.2d 466, 469 (9th Cir.1976); United States v. Patterson, 492 F.2d 995, 997 (9th Cir.), cert. denied, 419 U.S. 846 (1974); United Staes v. Foster, 711 F.2d 871 (9th Cir.1983), cert. denied, 465 U.S. 1103 (1984). The knowledge of the facts does not depend on a single agent, but on the cumulative knowledge of all the agents involved in the investigation. United States v. Sanchez-Vargas, 878 F.2d 1163 (9th Cir.1989); United States v. Bernard, 623 F.2d 551, 561 (9th Cir.1979). A law enforcement officer may search an individual pursuant to a valid arrest. United States v. Potter, 895 F.2d 1231 (9th Cir.), cert. denied, 110 S.Ct. 3247 (1990). Finally, it is the totality of the circumstances that is considered in determining whether there is probable cause. Illinois v. Gates, 462 U.S. 213 (1983).

89

Tirado asserts that at worst his actions could only be characterized as "ambiguous driving and observing activity," and argues that such actions do not give rise to probable cause. Tirado likens his case to United States v. Strickler, 490 F.2d 378 (9th Cir.1974). In Strickler, federal agents observed a Cadillac pass twice in front of a residence where a drug delivery was about to take place. The arresting officer observed the occupants of the car turn their heads toward the subject residence each time the car passed. Thereafter, the Cadillac parked in a position where its passengers could view the residence while delivery of the drugs was being made. This court reversed the passengers drug related conviction on the grounds that at the moment of arrest, the officers did not have sufficient probable cause to believe he committed a crime.

90

Tirado also cites United States v. Hillison, 733 F.2d 692 (9th Cir.1984), for the proposition that "[i]n order to find probable cause based on association with persons engaging in criminal activity, some additional circumstances from which it is reasonable to infer participation in criminal enterprise must be shown." Id. at 697. The Hillison court determined that the following circumstances supported a finding of probable cause: over the course of two days, surveillance officers observed defendant Mansfield spend a substantial period of time with two other individuals suspected of engaging in illegal drug activities. Mansfield stayed in the same hotel as the two other men, he accompanied one on an errand to a liquor store, and also spent and entire afternoon with both of them between the two hotel rooms. On the morning of his arrest, he met again with the other two men prior to their departure. This "prolonged close contact [with the two suspects and the well founded suspicion that [the two suspects] were engaged in narcotics violations during the time of their association" constituted probable cause. Id. at 697-98.

91

Tirado argues that at the time of his arrest, officers had no information implicating him in the conspiracy operation, and as such his case is similar to that of Strickler. Nor, he asserts, did they have evidence of "prolonged contact" with other co-conspirators as in Hillison, from which to infer Tirado was participating in the drug operation. Tirado argues that he was never observed, prior to his arrest, having any contact with any person involved in the drug operation, never seen in the loaded truck, and never seen entering the property where the marijuana was offloaded. From these facts Tirado asserts the government lacked probable cause to arrest and to search him, and that the district court's denial of his motion to suppress the evidence found on him was reversible error for which this court should direct acquittal.

92

The district court listened to testimony on two separate dates of pretrial hearings and made a finding that there was sufficient probable cause to support Tirado's arrest. Specifically, Judge Enright found:

93

I think, based on the evidence before me, the motion to suppress should be denied. I think there was probable cause for arrest of all defendants including those that were taken in the so-called countersurveillance vehicle. I think that there was sufficient evidence known to the officers based upon their intercommunications, the number of passes at the location where the truck was seized, the contact between the various vehicles that were involved in the incident, and the testimony of the officer this morning, Officer Mahon, relative to the people who were seized or arrested in the so-called counter-surveillance vehicle.

94

The testimony given at the pretrial hearing included statements that:

95

(1) The three occupants of the Mustang met with the two occupants of a maroon van in the truck stop parking lot with the loaded truck at 7:00 a.m. on December 8, 1988.

96

(2) On December 8, 1988 the Mustang was driven from the area of the truck stop in caravan fashion with the Jetta and maroon van later seen in Gonzalez' backyard with the loaded truck.

97

(3) The occupants of the Mustang conducted what law enforcement officers recognized as "countersurveillance" activities. The Mustang drove up and down the street in front of Gonzalez' property and down adjoining streets approximately fifteen to twenty times during the exact hour in which the other appellants were unloading the marijuana.

98

As such, we believe that the facts in this case are similar to those of United States v. Hoyos, 892 F.2d 1387 (9th Cir.1989), cert. denied, 111 S.Ct. 80 (1990). In Hoyos, this court upheld the district court's ruling that probable cause supported the arrest of an individual conducting countersurveillance during a drug deal. The agents in Hoyos recognized the manner of appellant's driving as consistent with that of an individual involved in a narcotics deal attempting to detect the presence of law enforcement officers, id. at 1391-93, just as the agents in this case recognized the mannerisms of Tirado and the two others in the black Mustang. The agents watched Hoyos driving caravan fashion with co-conspirators later arrested with the cocaine, id., just as agents watched the Mustang caravan out of the truck stop parking lot two to three hours prior to their arrest. And finally, the court in Hoyos factored into the equation the experience of the agents in drug cases. Id. at 1392-93. The agents in this case have decades of combined experience.

99

Under these circumstances, the agents had probable cause to arrest Tirado and to conduct a search incident to arrest. The finding of the district court is AFFIRMED.

100

F. Whether the District Court Erred in Denying Appellants' Motion for Acquittal Notwithstanding the Verdict of Guilty.

101

Urias, Tirado, and Trujillo each appeal the district court's refusal to grant their motions for acquittal notwithstanding the verdict. Each was convicted of conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 846, and possession of marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

102

This court will uphold a conviction if, when viewing the evidence in the light most favorable to the government and drawing all reasonable inferences therefrom, there exists relevant evidence from which the jury could have reasonably found the defendant guilty beyond a reasonable doubt of each essential element of the crime charged. United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1987); United States v. Disla, 805 F.2d 1340, 1348 (9th Cir.1986). Once the government establishes that a conspiracy exists, evidence of only a slight connection to the conspiracy is necessary to convict a defendant of knowing participation in it. United States v. Taylor, 802 F.2d 1108, 1116 (9th Cir.1986), cert. denied, 479 U.S. 1094 (1987).

103

Each appellant argues that the sum of properly admitted evidence against him simply places him near the scene of the crime and is insufficient to sustain his conviction. Appellants argue by reference to United States v. Esparza, 876 F.2d 1390 (9th Cir.1989), that evidence tending to show participation in a conspiracy, as opposed to mere presence, is needed to support an inference of guilt. In Esparza, the defendant was a front-seat passenger in the "lead car" that guided a moving van containing 48 illegal aliens, pausing near the freeway on-ramp, flashing its lights as the moving van approached from the rear and then following the moving van onto the freeway. This court reversed the defendant's conviction because even though he was a front-seat passenger in the car, the government had failed to present evidence that Esparza knew of the conspiracy or knew that illegal aliens were hidden in the van. The government argued that there was "no rational explanation for Esparza's presence in the [car] unless he was a participant in the conspiracy." Id. at 1393. We held that "considered in its factual context, Esparza's presence as a passenger in the [car] is not a sufficient basis to infer that he knew of the conspiracy or participated in it." Id.

104

Here, appellants contend that there is no evidence that they either were aware of the drug smuggling activity, that they ever had actual or constructive possession of the marijuana, or that they agreed or acted towards furthering the alleged criminal activity. Appellants argue that their presence in the Mustang, which contained no contraband or surveillance equipment, is simply insufficient to convict them of conspiracy.

105

Appellants also liken their case to United States v. Penagos, 823 F.2d 346 (9th Cir.1987). In Penagos police observed boxes of cocaine being moved from one car to another. Penagos was standing near the points of transfer and "appeared to be looking up and down the street." Id. at 347. He also rode and met with parties to the transaction, and was seen making and receiving telephone calls at public phones every 45 to 60 minutes. Id. at 348.

106

We held that these actions alone were insufficient to convict appellant of conspiracy. Among the factors noted by the court was the fact that Penagos' "lookout" status was questionable because he was not at the place of delivery, and that there was no evidence of the "objects of [the] defendant's attention." Id. at 349.

107

The government contends the existence of the conspiracy among the other seven appellants is unassailable. The government also asserts that the conclusion of the jury that Tirado, Trujillo, and Urias were a part of that conspiracy is amply supported by the following evidence adduced at trial:

108

(1) Ms. Rodriguez, the maid at the Ontario Travelodge, identified Urias and Trujillo with Gomez at the motel on December 7, 1988.

109

(2) On December 8, 1988 at approximately 7:30 a.m. (about three hours prior to the arrests), Urias and two latin males the government was unable to identify at the time, met with occupants of the maroon van (later parked in Gonzalez backyard at the time of arrest) at the truck stop parking lot.

110

(3) At about 8:00 a.m. on December 8, DEA Agent Thayer tailed the appellants' black Mustang out of the truck stop and east on Interstate 10 towards Gonzalez' residence in Muscoy.

111

(4) Government agents testified that they saw the appellants' black Mustang drive past their respective surveillance positions approximately fifteen to twenty times during the hour that the marijuana was being unloaded into the Ryder van.

112

(5) At the time of his arrest, Tirado possessed a piece of paper with Orduno's name and some numbers written on it.

113

The issues and factual inferences raised by appellants are similar to those faced by this court in United States v. Hernandez, 876 F.2d 774 (9th Cir.), cert. denied, 110 S.Ct. 179 (1989). In Hernandez, the defendant challenged the sufficiency of the evidence to support his convictions for participating in a cocaine conspiracy and possessing cocaine. This court was faced with the issue of whether there was sufficient evidence to support Hernandez' conviction and found that "[t]he coordinated actions of the codefendants [were] strong circumstantial evidence" to establish the appellants' participation in and conviction for the charged crimes. This court held that the prosecution need not show the agreement in furtherance of the conspiracy to have been explicit, but that an implicit agreement could be inferred from the facts and circumstances of the case. Hernandez, 876 F.2d at 778.

114

Furthermore, the Hernandez court dismissed the argument that the evidence indicated "mere presence." The court stated that the proof in these cases "always leaves open the opportunity to argue 'mere presence.' " Id. at 779. Distinguishing this case from United States v. Penagos, the Hernandez court noted that appellant was conducting countersurveillance at the very moment of the transfer of narcotics. Id. In the present case, the appellants were also conducting countersurveillance at the very moment the marijuana was being transferred from the loaded truck to the Ryder van.

115

A review of the record demonstrates more than just "slight" evidence of Urias, Tirado, and Trujillo's participation in the conspiracy. We conclude that the coordinated series of activities of the appellants supports the jury's verdict that the appellants are guilty beyond a reasonable doubt. The district court's denials of the appellants' motions for acquittal notwithstanding the verdict are AFFIRMED.

116

G. The District Court's Enhancement of Machuca's Sentence

117

Machuca asserts that the district court erred in increasing his offense level under the Sentencing Guidelines from 32 to 36 based on the probation department's argument that he was a leader of the conspiracy. Machuca argues that this conclusion is contradicted by the substantial evidence of his direct participation in this criminal enterprise. In essence, Machuca argues simply that leaders of criminal enterprises do not "dirty their hands" by helping to offload marijuana as did the appellant. On this basis Machuca asks this court to remand his case for resentencing.

118

Findings of fact underlying a sentence determination are reviewed for clear error. United States v. Burns, 894 F.2d 334 (9th Cir.1990); United States v. Wills, 881 F.2d 823 (9th Cir.1989).

119

From the testimony and information related in the presentence report, we hold that there is sufficient evidence to support the conclusion that Machuca played more than just a minor role in the conspiracy. Machuca was seen consulting with Orduno, the driver of the loaded truck, on several different occasions beginning from the time that Orduno drove the truck into the customs inspection area through the period when the truck was parked in the truck stop lot. Machuca apparently is the president of the trucking firm whose letterhead was printed on the forms given to U.S. customs. Machuca was the driver of the white Jetta seen in the vicinity of the loaded truck when it was first driven across the border, when it was parked at the truck stop, and when it backed into Gonzalez' yard. The presentence report noted that Orduno and Machuca were evidently partners in a trucking business established in Mexico.

120

From these facts the district court's conclusion that Machuca was one of the leaders of the conspiracy is not clearly erroneous.

121

H. Whether the Nature of the Conspiracy and the Dominion and Control Required for Possession with Intent to Distribute were Established as to Gomez only for the 1475 Pounds of Marijuana in the Ryder van.

122

Gomez argues that since the government proved he rented the Ryder van into which 1,475 pounds of marijuana were loaded at the time of arrest, he cannot be held accountable for the balance of the 4,484 pounds found at the arrest site. He argues that the charging instrument was defective by charging one conspiracy rather than several smaller conspiracies.

123

Once a conspiracy exists, evidence establishing a defendant's connection with that conspiracy, even though the connection is slight, is sufficient to convict him of knowing participation in the conspiracy. Penagos, 823 F.2d at 348. In this case, the appellants conspired to possess with intent to distribute 4,484 pounds of marijuana, all of which were secreted in a hidden compartment in the loaded truck. At the time of arrest, Gomez and his co-defendants were in the midst of transferring the marijuana into the Ryder van. Gomez himself possessed the screws for the hidden door leading to the compartment secreting the marijuana in the loaded truck, indicating he personally gained access to entire 4,484 pounds of marijuana. Officer Fouse saw Gomez get out of the truck and begin to load bales of marijuana into the Ryder van as they were handed to him from the truck. Lastly, Gomez himself rented the Ryder van into which the marijuana was being loaded. We conclude that the evidence adduced at trial, particularly when viewed in the light most favorable to the government, amply supports the government's charge of a single conspiracy to possess with intent to distribute 4,484 pounds of marijuana.

124

I. Whether Gomez' Sentence was Improper.

125

The Probation Department calculated Gomez' sentencing guideline range at 121-151 months. The district court adopted the findings and calculations of the Probation Department and imposed a sentence of 136 months. In adopting the Probation Department's recommendation the district court stated: "The fact that [Gomez] presented a demand and got paid three thousand dollars, I think, should come into focus somewhere." Appellant argues that the district court erred in taking the $3,000 into consideration.

126

A district court's imposition of a sentence within the guideline range is not subject to appellate review on the grounds that the defendant believes he should have received a sentence at the lower end of the range. United States v. Pelayo-Bautista, 907 F.2d 99 (9th Cir.1990) (no jurisdiction for review of a sentence that is within the correctly applied guideline range and not imposed in violation of law); United States v. Soliman, 889 F.2d 441, 443-444 (2d Cir.1989). When co-defendants convicted of the same offense receive lesser sentences within the same guideline range, the sentence is reviewed for abuse of discretion. United States v. Castro, 887 F.2d 988 (9th Cir.1989).

127

Gomez claims that the district court erred when it sentenced him to 136 months in custody when certain of his co-defendants received sentences of only 121 months. Gomez compares himself to Medina, who received a sentence of 121 months. Both had a guideline range of 121-151 months.

128

The evidence at trial demonstrated that Gomez played a greater role in the drug smuggling organization than Medina. Gomez rented the Ryder van into which the marijuana was loaded. Gomez telephoned Gonzalez' residence from the Travelodge in Ontario the day before the truck was unloaded. Gomez also accessed the secret compartment in the loaded truck, as evidenced by his possession of the screws at the time of arrest. From this evidence it cannot be said that the district court abused its discretion in sentencing Gomez to a term of imprisonment in the middle of the guideline range. The sentence is AFFIRMED.

129

J. Whether the Eyewitness Identification of Customs Agent Henry was Sufficient to Convict Gonzalez.

130

Gonzalez argues that eyewitness identification is inherently unreliable and that therefore Customs Inspector Henry's identification of him as the driver of the decoy truck is insufficient to sustain his conviction.

131

A conviction is supported by the evidence if, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences therefrom, there was relevant evidence from which any rational trier of fact could reasonably have found the defendant guilty beyond a reasonable doubt of each essential element of the crime charged. Hernandez, 876 F.2d at 777; Disla, 805 F.2d at 1348.

132

The credible testimony of a single identification witness is sufficient to support a conviction. United States v. Smith, 563 F.2d 1361, 1363 (9th Cir.1977), cert. denied, 434 U.S. 1021 (1978).

133

In this case, Henry testified that he had been an inspector for the Customs Service for over two years, and that his training included "behavioral analysis." Henry readily identified Gonzalez at trial as the driver of the decoy truck during daylight on December 5, 1988. Henry met with Gonzalez the first time when Gonzalez spoke to him on the dock prior to inspection of the decoy truck. Henry remembered the truck and driver in particular because he thought charcoal was an unusual cargo.

134

Gonzalez came before Henry a second time to let Henry know the decoy truck was unloaded and ready for inspection. One-half hour after inspection and clearance, Henry noticed the truck had not yet departed the dock. Henry began to inquire of the whereabouts of the driver and then searched for Gonzalez knowing of his appearance. After searching and paging for Gonzalez for about another half-hour, Henry found him on the dock at the back of the decoy truck. Henry and a Customs supervisor then went up to Gonzalez and told him he needed to vacate the space to allow the inspection of waiting trucks. Henry remembers Gonzalez rubbed his stomach and explained he had stomach trouble. Henry's memory and perception were tested on cross examination, and the jury found his testimony credible beyond a reasonable doubt. Viewed in the light most favorable to the Government, we hold that Henry's eyewitness identification of Gonzalez is sufficient for a rational trier of fact to have found him guilty beyond a reasonable doubt. Accordingly, the conviction is AFFIRMED.

135

K. Whether the District Court Erred by Not, Sua Sponte, Giving a Cautionary Instruction on Eyewitness Identification.

136

Gonzalez argues that the district court, on its own and without a defense request, should have given the jury a cautionary instruction on eyewitness identification.

137

A defendant's failure to request a jury instruction waives any error but plain error. United States v. Aguilar, 883 F.2d 662 (9th Cir.1989), cert. denied, 59 U.S.L.W. 3481 (January 14, 1991).

138

This issue is controlled by United States v. Amaral, 488 F.2d 1148 (9th Cir.1973). In Amaral, this court held that it is not plain error for a district court to fail to give a jury instruction sua sponte on the "inherent unreliability" of eyewitness identification. Amaral has been reaffirmed by this circuit. See, e.g., United States v. Field, 625 F.2d 862, 872 (9th Cir.1980); United States v. Lone Bear, 579 F.2d 522, 524 (9th Cir.1978); United States v. Masterson, 529 F.2d 30, 32 (9th Cir.), cert. denied, 426 U.S. 908 (1976). As such, we hold that the district court did not err by declining to give the requested instruction.

139

L. Whether Orduno was Denied Effective Assistance of Counsel.

140

Orduno contends that his trial counsel failed to effectively represent him because counsel did not adequately argue his motions to suppress evidence based on alleged violations of Fourth Amendment rights.

141

Whether a defendant was denied effective assistance of counsel is a mixed question of fact and law, and is reviewed de novo. United States v. Baker, 850 F.2d 1365 (9th Cir.1988).

142

A criminal defendant is entitled to reasonably effective assistance of counsel. The right to effective assistance of counsel is the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted, even if defense counsel has made demonstrable errors, the requirements of the Sixth Amendment have been met. United States v. Cronic, 466 U.S. 648, 656 (1984). Counsel is presumed competent. As such, the burden rests on the defendant to establish a constitutional violation. Id. at 658.

143

To prevail, a defendant's claim that counsel's assistance was so defective as to require reversal of a conviction must satisfy two tests. First, the defendant must show that counsel's performance was deficient. Second, the defendant must show that the deficient performance prejudiced the defense to such a degree as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984).

144

Orduno's appellate counsel argues that Orduno's trial counsel failed to adequately argue the motion to suppress evidence based on the Government's search of the loaded truck and the search of the curtilage area of Gonzalez' residence. However, based on our earlier analysis of the search of the truck and of Gonzalez' backyard, it is clear that the district court's rulings were supported by the facts and the law. The district court heard evidence from five witnesses over the course of three pretrial hearings and found that the search of the loaded truck was a proper extended border search, and that Officer Fouse's observations did not violate the Fourth Amendment. It is unlikely that any argument by Orduno's counsel would have changed the outcome of the rulings. In addition, even assuming that Orduno's trial counsel did not aggressively argue the motion to suppress the fruits of the search of Gonzalez' backyard, such conduct does not constitute ineffective assistance of counsel because Orduno lacked standing to raise this objection. Gordon v. Duran, 895 F.2d 610 (9th Cir.1990) (counsel was not ineffective in failing to raise Fourth Amendment claim where standing was doubtful). Hence, we reject Orduno's claim that his trial counsel rendered him ineffective assistance of counsel.

SUMMARY

145

The convictions and sentences of all defendants except Francisco Gonzalez-Martinez are affirmed. The case against Francisco Gonzalez-Martinez is remanded for a determination by the district court as to whether Officer Fouse had legitimate prior permission to be on the neighboring property and, depending on the district court's finding, the granting of a new trial or resubmission to this panel.

146

SO ORDERED.

*

Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3

1

Orduno-Martinez ("Orduno"), Gonzalez-Martinez ("Gonzalez"), Urias-Gastelum ("Urias"), Tirado-Garcia ("Tirado"), and Trujillo-Garcia ("Trujillo") were convicted in the first of the bifurcated trials. Co-defendants Rivera-Morales ("Rivera"), Machuca-Leyva ("Machuca"), Gonzalez-Morales ("Morales"), Medina-Hermosillo ("Medina"), and Gomez-Padilla ("Gomez") were convicted in the second of the bifurcated trials

2

Appellants were convicted on the following counts:

(1) Conspiracy to import marijuana, in violation of 21 U.S.C. Secs. 952, 960, and 963 (Machuca, Rivera, Morales, Orduno and Gonzalez).

(2) Importation of Marijuana, in violation of 21 U.S.C. 21 Secs. 952 and 960, (Machuca, Rivera, Morales, Orduno and Gonzalez).

(3) Conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (each appellant).

(4) Possession of marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (each appellant).

Orduno and Machuca were sentenced to custody for 211 months. Gonzalez was sentenced to custody for 156 months. Gomez was sentenced to 136 months. Rivera, Morales, Medina, Urias, Tirado, and Trujillo were sentenced to custody for 121 months.

3

Machuca is the president and part owner of the trucking company listed on the manifest of the loaded truck presented to U.S. Customs

4

After securing the area the officers obtained search warrants through which the officers recovered marijuana not in plain view, as well as the half kilogram of cocaine in the residence

5

It was widely held that the plurality opinion in Coolidge also required that the discovery of the incriminating evidence be inadvertent. The Supreme Court recently explicitly dispensed with this requirement in Horton v. California, 110 S.Ct. 2301 (1990)

6

For example, Senator Kennedy noted during the debate on the Anti-Drug Abuse Act:

The widespread use of illegal drugs is one of the most pressing problems facing our society. Illegal drugs are killing children and destroying families. Vast profits from the sale of illegal drugs have created a new criminal underworld which promotes violence and feeds on death.

132

Cong.Rec. S14282 (daily ed. Sept. 30, 1986)

7

See State v. Benitez, 395 So.2d 514 (Fla.1981); Brugman v. State, 339 S.E.2d 244 (Ga.1986)

8

Several appellants, in making their due process claims, cite United States v. Roberts, 726 F.Supp. 1359 (D.D.C.1989), in which the court held the guidelines unconstitutional as applied to five cases before it. In that case the court determined that there was evidence of "failure to consider the defendant's cooperation with the government," and evidence of "vindictive retaliation by the prosecutors." The appellants' point in discussing this case is not obvious. None of the appellants have alleged that either of these circumstances arose in their case