IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50674

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER GOMEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas (EP-00-CR-745-1-DB) -------------------- March 17, 2003

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Javier Gomez appeals his convictions for

conspiracy, possession with intent to distribute marijuana, and

maintaining a place for the purposes of conspiring to possess with

intent to distribute and possession with intent to distribute

marijuana, in violation of

, 846, and 856. In a

prior opinion, we concluded that Gomez had standing to challenge

the search of a rental truck parked in his driveway by an

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. accomplice.1 On remand, the district court again denied Gomez’s

motion to suppress evidence seized from this truck because one of

his accomplices voluntarily consented to the search. The district

court reinstated Gomez’s conviction and sentence, and this appeal

followed.

The government must establish voluntary consent by a

preponderance of the evidence. As determination of voluntariness

is a factual finding, we review it for clear error.2

Voluntariness is evaluated using six factors: (1) custodial status;

(2) the presence of coercive police procedures; (3) the extent and

level of cooperation with the officers; (4) the awareness of the

right to refuse consent; (5) education and intelligence; and (6)

the belief that no incriminating evidence will be found.3 No

single factor is dispositive.4

The gravamen of Gomez’s insistence that his accomplice did not

voluntarily consent to the search of the truck is (1) the

accomplice was approached by a police officer in Gomez’s back yard,

and (2) the officer did not explicitly inform the accomplice of his

right to refuse the officer’s request to search the truck. Thus,

1 See United States v. Gomez,

(5th Cir. 2001). 2 See United States v. Gonzales,

(5th Cir. 1996). 3 See United States v. Jones,

(5th Cir. 2000). 4

2 Gomez contends, the accomplice felt “detained,” and the brief

exchange between the police officer and the accomplice reflected an

“extremely coercive environment.”

Our review of the testimony at Gomez’s suppression hearing on

remand persuades us that the district court’s finding of voluntary

consent is not clearly erroneous. The lone police officer did not

make any threats, display any force, or use any coercive tactics in

his interaction with the accomplice.5 The district court found the

accomplice to be educated and intelligent, and noted that he

cooperated with the police, as, for example, by unlocking and

opening the truck for them. Furthermore, the accomplice was not in

custody,6 and he testified at the suppression hearing that he did

not feel as though he were in custody. Although the police did not

explicitly inform the accomplice of his right to refuse the search

request, this is not indispensable to voluntariness;7 neither is

the government specifically required to show that a defendant knew

5 United States v. Tompkins,

(5th Cir. 1997) (affirming a finding of voluntariness given similar circumstances in which the police neither made any overt display of authority nor used threats or violence). 6 United States v. Solis,

(5th Cir. 2002) (affirming a finding of voluntariness in request to search a suspect’s home when the suspect was not in custody and there was no display of force by the police “beyond their presence in numbers”). 7 See

(affirming finding of voluntariness, although police “never advised [the suspect] that he had the right to refuse consent to search” his house).

3 of his right to refuse.8 In our review of the totality of the

circumstances, we do not perceive the presence of any clear error

in the district court’s finding of voluntariness.

As the district court found that the search of Gomez’s

residence, including the exterior area where officers encountered

his accomplice, was unconstitutional, Gomez briefly suggests that

(1) the testimony of one accomplice, (2) the accomplice’s keys to

the truck, and (3) the truck’s contents are all “fruit of the

poisonous tree” under Wong Sun v. United States.9 But, because

Gomez did not raise this issue below, we review it for “plain

error” only. Gomez’s argument on this point involves factual

issues that could have been determined by the district court. We

conclude that the error, if any, was not “plain.”10

Although we previously decided the issue against him, Gomez

again asserts that the introduction of post-arrest statements of

non-testifying accomplices was a violation of his Sixth Amendment

right to confront adverse witnesses, relying on Bruton v. United

States.11 We previously concluded that, as Gomez was tried

8 United States v. Hernandez,

(5th Cir. 2002) (recognizing that “the government is not required to show that the defendant was aware of her right of refusal”). 9

(1963). 10 See Robertson v. Plano City of Texas,

(5th Cir. 1995) (issues raised for first time on appeal involving factual determinations that could have been resolved below generally do not rise to level of plain error). 11

(1968).

4 separately from these accomplices, he cannot show a Bruton

violation.12 Under the “law of the case” doctrine, we generally

will follow our prior ruling in the same case, and will not

reexamine issues of law. There is, however, an exception when the

prior decision was clearly erroneous or its application would work

a manifest injustice.13 Relying on Lilly v. Virginia,14 Gomez

asserts that our jurisprudence has been overruled, and that the

prior opinion was clearly erroneous. We disagree.

The Supreme Court in Lilly did not expressly overrule our

decisions in Briscoe or Restrepo; neither have we ruled that Lilly

implicitly overruled those decisions. Furthermore, both Lilly and

Bruton are distinguishable from the present case. In Bruton, a

joint trial made it impossible to “confront” a co-defendant

regarding his prior statement, because under the Fifth Amendment,

he could not be made to testify. And, although the defendant in

Lilly was tried separately, he could not confront his accomplice

regarding the accomplice’s prior statement because the accomplice

had invoked the Fifth Amendment when called to the stand. Unlike

the defendant in Bruton, Gomez was not tried jointly with his

accomplice, and, unlike the defendant in Lilly, Gomez was tried

12 Gomez,

-99 (citing United States v. Restrepo,

(5th Cir. 1993) (requiring joint trial)); United States v. Briscoe,

(5th Cir. 1984) (same)). 13 See United States v. Becerra,

(5th Cir. 1998). 14

(1999).

5 after his accomplice had pleaded guilty, thereby mooting the

accomplice’s Fifth Amendment right against self-incrimination.

Consequently, either Gomez or the government could have called the

accomplice to testify regarding his statement, thereby allowing

Gomez to exercise his confrontation rights. Gomez’s failure to do

so constitutes waiver. Under these circumstances, our prior

holding on Gomez’s Bruton claim was not clearly erroneous, and thus

remains the law of the case.

The judgment of the district court is

AFFIRMED.

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