Opinion
No. 08-50534.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 14, 2009.
David Daniel Leshner, Bruce R. Castetter, Stewart Michael Young, Assistant U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Holly A. Sullivan, Law Office of Holly A. Sullivan, San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, John A. Houston, District Judge, Presiding. D.C. No. 07-CR-01430-JAH-1.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Donald Barton Deshotels appeals his convictions for transportation of illegal aliens and aiding and abetting ( 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II)); bringing in illegal aliens for financial gain and aiding and abetting ( 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2); and conspiracy to bring in and transport illegal aliens ( 8 U.S.C. § 1324(a)(1)(A)(i), (ii), and (v)(i)). We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
State Route 94 border patrol agents discovered three illegal aliens in the trunk of Kenneth Grant's car after he attempted to pass through the checkpoint. Minutes later, agents saw Deshotels walking down State Route 94. They summoned him to the primary inspection area and asked him where he was coming from; he responded he was in the bushes and then stated he had been dropped off. He did not respond to an agent's question whether he had been in the car still present in secondary inspection. The material witnesses identified Deshotels in a photographic showup. Two material witnesses identified him in a six-person photographic lineup and at trial as the car passenger who met them at a prearranged location on the United States side of the border and put them in the trunk.
Deshotels contests the admission of his pre- Miranda incriminating statements and testimony about his silence. Miranda warnings are only required before custodial interrogation; a defendant's pre-custodial, pre- Miranda statements and silence are admissible. United States v. Bassignani 575 F.3d 879, 883 (9th Cir. 2009); United States v. Beckman, 298 F.3d 788, 795 (9th Cir. 2002). The district court's determination that Deshotels was not in custody during the questioning is a mixed question of law and fact warranting de novo review. Bassignani, 575 F.3d at 883. The totality of the circumstances demonstrates Deshotels was not in custody. Id. at 883-84. The agents summoned Deshotels to the primary inspection booth as he attempted to circumvent the checkpoint. He was questioned in an open area. The questioning was brief, and the agents did not apply pressure to detain Deshotels or confront him with evidence of guilt. The district court did not err in denying Deshotels' motion to suppress his statements or allowing testimony about his silence.
Deshotels challenges the material witnesses' identifications of him as impermissibly suggestive. The constitutionality of pretrial identification procedures is reviewed de novo. United States v. Johnson, 820 F.2d 1065, 1072 (9th Cir. 1987). Viewing the totality of the circumstances, the showup and lineups were not impermissibly suggestive, and the record reflects no substantial likelihood of misidentification. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985). The lineup depicts six African American males of about the same age. Deshotels' darker complexion does not render the lineup impermissibly suggestive. United States v. Nash, 946 F.2d 679, 681 (9th Cir. 1991) (photo array was not impermissibly suggestive despite differences in hairstyles, ethnicity, and complexions). The material witnesses' identifications of Deshotels were reliable. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). They had an opportunity to closely observe Deshotels as he loaded them into the trunk. Their descriptions of Deshotels were reasonably accurate and independently consistent. The district court did not err in denying the motion to suppress the identifications.
Deshotels challenges the sufficiency of the evidence to support the three convictions for aiding and abetting bringing in illegal aliens for financial gain. We review de novo the district court's denial of a motion under Fed.R.Crim.P. 29. United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir. 2008). Viewing the evidence in the light most favorable to the government, sufficient evidence supports the convictions. Id. The record demonstrates coordination and agreement between Deshotels and the smugglers in Mexico prior to the material witnesses' entry into the United States. United States v. Singh, 532 F.3d 1053, 1056, 1059-60 (9th Cir. 2008); United States v. Lopez, 484 F.3d 1186, 1198-1201 (9th Cir. 2007) ( en banc). The smugglers told the material witnesses where to hide after crossing the border (near a sign 100 meters from the border fence), for whom to wait (two African American men), and the prearranged signal ("Juan"). Five minutes after reaching the sign, Deshotels and Grant arrived and yelled "Juan." The district court did not err in denying Deshotels' three motions for acquittal.
Deshotels contends the superseding indictment for bringing in aliens for financial gain violates his speedy trial rights. 18 U.S.C. § 3161(b). The district court's application of the speedy trial act is reviewed de novo. United States v. Lopez-Osuna, 242 F.3d 1191, 1196 (9th Cir. 2000). The bringing in aliens for financial gain charge was new in the superseding indictment; it was not included in the original complaint or indictment. Transportation of illegal aliens and bringing in illegal aliens for financial gain are distinct offenses under § 1324. Lopez, 484 F.3d at 1195-96. The district court did not err in denying Deshotels' motion to dismiss the superseding indictment.