U.S. v. Stanton

• Decision Date: 31 August 2007
• Docket Number: No. 06-10519.,06-10519.
• Citation: 501 F.3d 1093
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Randy S. STANTON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

501 F.3d 1093

UNITED STATES of America, Plaintiff-Appellant, v. Randy S. STANTON, Defendant-Appellee.

No. 06-10519.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 2007.

Filed August 31, 2007.

Peter S. Levitt, Assistant United States Attorney, Robert Ellman Appellate Chief, Las Vegas, NV, for the plaintiff-appellant.

John G. Watkins, Las Vegas, NV, for the defendant-appellee.

Appeal from the United States District Court for the District of Nevada; James C. Mahan, District Judge, Presiding. D.C. No. CV-05-00833-JCM.

Before: ALFRED T. GOODWIN, JAY S. BYBEE, and MILAN D. SMITH, JR., Circuit Judges.

GOODWIN, Circuit Judge:

A magistrate judge found Randy S. Stanton ("Stanton") guilty of driving while under the influence of alcohol to a degree that rendered him incapable of safe operation. On appeal from this conviction the district court reversed, holding that insufficient evidence supported the magistrate's decision. The United States appeals the district court's ruling, contending that it erred by concluding that no rational trier of fact could have found Stanton guilty beyond a reasonable doubt. Stanton counters that we lack subject matter jurisdiction over the government's appeal; and, in the alternative, he argues that the government did not adduce sufficient evidence to support his conviction. We hold first that we have jurisdiction to hear this appeal. On the merits, we reverse the district court's order and remand for further proceedings.

I. BACKGROUND

Stanton's sufficiency of the evidence argument requires us to consider the entire record in the light most favorable to the prosecution, to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, we discuss the record evidence in some depth.

The United States charged Stanton by criminal complaint with three offenses arising from his activities on the evening of April 13, 2004. Count One alleged that he operated a motor vehicle under the influence of alcohol, in violation of 36 C.F.R. § 4.23(a)(1). Count Two charged Stanton with operating a motor vehicle with a blood alcohol content ("BAC") of .08 grams or more, in violation of 36 C.F.R. § 4.23(a)(2), and Count Three charged him with speeding, in violation of 36 C.F.R. § 4.21(c). Stanton consented to trial by a magistrate, and proceeded to a two-day bench trial.

Trial evidence shows that on April 13, 2004, Stanton attended a wine tasting in Boulder City, Nevada, that began at approximately 6:15 p.m. Stanton consumed one to two ounces of at least four different wines at the tasting, and also had several one to two ounce "additional pours," or refills. Stanton left the wine tasting around 8:40 p.m., and went to a restaurant. There he ordered a glass of wine around 9 p.m., finished his drink around 9:25 p.m., stopped briefly at his office, and then headed home.

National Park Service Ranger Lena Boesser-Koschmann ("Koschmann") was on patrol in the Lake Mead National Recreation Area that evening. At approximately 9:40 p.m. Koschmann clocked Stanton driving 70 miles an hour in a posted 45 mile an hour zone within the federal recreation area, and pulled the vehicle over. She approached the vehicle to inform Stanton that he had been speeding, and observed "a strong odor of an alcoholic beverage about his person." Koschmann also observed that "his eyes were bloodshot and watery," and that his speech was "very slow and deliberate." After Stanton stated that he had been drinking at a wine tasting, Koschmann asked him to step out of the vehicle and observed that "his balance was somewhat unsure as he walked toward the back of the vehicle."¹ Koschmann then conducted a set of field sobriety tests ("FSTs"), each of which indicated Stanton was intoxicated. During the "horizontal gaze nystagmus test," which measures involuntary eye movements, Koschmann observed four of a possible six clues indicating poor performance, and testified that she concluded "[t]here was a high probability that he had alcohol in his system, that it was effecting [sic] him." Stanton challenged the validity of these results, arguing they were tainted because he was looking directly into the headlights and emergency lights on Koschmann's vehicle during the test. Stanton also failed the "walk and turn test," during which Koschmann observed six of a possible eight clues indicating intoxication. Specifically, Koschmann testified that Stanton: lost his balance and stepped out of position while she gave instructions; stepped off line multiple times; used his arms for balance; stopped walking altogether at one point; turned incorrectly; and took an incorrect number of steps. Finally, Stanton failed the "one-leg stand test." Stanton exhibited all four clues this test examines (swaying, hopping, putting foot down, using arms to balance), and after he placed his foot on the ground a third time, Koschmann stopped the test because she "was concerned for his safety." Koschmann testified repeatedly that the tests were performed on a flat, paved surface on the side of the road, and also testified that the weather was clear and dry. Conversely, Stanton testified that the roadside testing took place on unlevel ground, but at no time did he alert Koschmann to any problems or difficulties he had performing the tests.

Koschmann thereafter conducted a preliminary breath test ("PBT") at the scene, which indicated Stanton's BAC was .115.² Given the totality of the circumstances and her observations of Stanton, Koschmann placed him under arrest and took him to a nearby ranger station. At the station, approximately fifty minutes after the initial stop, Koschmann administered two breath tests using an Intoxilyzer machine. At trial Koschmann testified that Stanton blew a .141 on the first test, and a .144 on the second. However, the magistrate sustained a defense objection to any testimony about whether these results placed Stanton over the legal BAC limit, because the government had failed to lay a sufficient foundation for what the Intoxilyzer results represented. The magistrate later granted Stanton's Rule 29 motion for acquittal on Count Two.

On the night of his arrest, after being advised of his Miranda rights, Stanton stated that he had not eaten since having a protein shake that morning, that he had begun drinking at 6 p.m. that night, and— despite his own testimony about the 9 p.m. glass of wine at the restaurant — that he had his last drink of the evening at approximately 8 p.m. Stanton also stated that on a scale from one (low) to ten (high), "he felt he was a four" with regard to the extent he was under the influence of alcohol. Finally, Stanton concluded, "I feel buzzed. I felt more of a buzz when you pulled me over."

Stanton also testified at trial before the magistrate. He stated that he had attended and partaken at the wine tasting, and later ordered the glass of wine at the restaurant. He also stated that he did not believe the wine placed him in a condition that he could not safely operate his vehicle. He also testified that he did not believe he was driving seventy miles an hour when Koschmann encountered him, that he told the ranger so, and that he generally travels five to ten miles per hour over the speed limit on that stretch of road.

At the close of evidence and argument, the magistrate gave a short verbal ruling on the two remaining counts. First, the magistrate convicted Stanton of the speeding charge in Count Three, stating that she was persuaded beyond a reasonable doubt that the government had proven its case. The magistrate also found Stanton guilty of Count One, holding that under the totality of circumstances he was incapable of safely operating his vehicle because of the degree to which he was under the influence of alcohol. The magistrate accepted Stanton's argument regarding the "horizontal gaze nystagmus test," and placed no weight on the test because it was "conducted under less than idea[l] circumstances." Nonetheless, the magistrate relied particularly on the Intoxilyzer results (which indicated Stanton had been drinking even if they did not conclusively show an above-limit BAC), Koschmann's field observations, the speed at which Stanton was driving, his disregard for the speed at which he was driving, and his post-custody statements that he was more intoxicated at the time of his stop than at the time he was questioned. Considering all the evidence adduced as a whole, the magistrate concluded that the government had proved its case on Count One, and found Stanton guilty of that charge. The magistrate then sentenced Stanton to a twelve-month term of unsupervised probation, a $500 fine, sixty-four hours of community service, and DUI counseling.

Stanton appealed to the district court, arguing insufficient evidence supported his conviction on Count One. In a one-page order the district court reversed, holding that considering the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of Count One beyond a reasonable doubt. The government's timely appeal — and Stanton's unsuccessful motion in this court to dismiss for lack of subject matter jurisdiction — followed.

II. DISCUSSION

A. Jurisdiction

Stanton's contention that we lack jurisdiction to entertain the government's appeal is without merit. Stanton accurately identifies the fundamental rule that "the United States cannot appeal in a criminal case without express congressional authorization." United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). He also correctly points out that the governing statute, the Criminal Appeals Act, on its face authorizes the United States to appeal only from a "judgment . . . of a district court dismissing an indictment or information . . ....