United States v. Niebla-Torres

• Decision Date: 31 January 2017
• Docket Number: No. 15-10261,15-10261
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Abelardo NIEBLA–TORRES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

847 F.3d 1049

UNITED STATES of America, Plaintiff–Appellee,

v.Abelardo NIEBLA–TORRES, Defendant–Appellant.

No. 15-10261

United States Court of Appeals, Ninth Circuit.

Argued and Submitted on September 13, 2016, San Francisco, California

Filed January 31, 2017

Roger H. Sigal (argued), Law Offices of Roger H. Sigal, Tucson, Arizona, for Defendant–Appellant.

Lawrence C. Lee (argued) and Bruce M. Ferg, Assistant United States Attorneys; Robert L. Miskell, Appellate Chief; John S. Leonardo, United States Attorney; United States Attorney's Office, Tucson, Arizona; for Plaintiff–Appellee.

Before: William A. Fletcher, Morgan B. Christen, and Michelle T. Friedland, Circuit Judges.

OPINION

CHRISTEN, Circuit Judge:

Abelardo Niebla–Torres (Niebla), a native and citizen of Mexico, appeals his conviction for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846.¹ Niebla argues that the district court erred by denying his motion for a judgment of acquittal because the government did not introduce sufficient evidence to corroborate his confession under the corpus delicti doctrine. We have jurisdiction under 28 U.S.C. § 1291, and we affirm Niebla's conviction.

I. BACKGROUND

Border Patrol Agent Michael Colella arrested Niebla on Pozo Redondo Mountain in southern Arizona, near the Ajo Border Patrol station, on November 27, 2014. According to the government's expert trial witness, the Ajo area is a smuggling corridor. Drug-trafficking organizations control the majority, if not all, of the smuggling routes, and the drug traffickers allow individuals to illegally cross into the United States only if they pay a fee, work as backpackers carrying drugs, or serve as scouts to look out for law-enforcement activity. The backpackers typically carry marijuana and travel in groups of five to ten people. They traverse the valley floor, instead of walking through the mountains, because each backpack weighs forty to sixty pounds and the backpacks are easier to carry on flat ground. Scouts track law-enforcement movement from mountaintop locations to help the backpackers avoid detection.

Agent Colella spotted two people on the Pozo Redondo Mountain for several days in a row leading up to Niebla's arrest. The individuals "weren't standing out in the open like a normal hiker would," and "appeared to be concealing themselves." Agent Colella could just see the "tops of their heads, just from their chin up, and every so often their heads would go back down and then come back up." Because the summit provides a relatively unobstructed view of the valley floor (including the Border Patrol station), Agent Colella suspected the two people were scouting law-enforcement activities. Agent Colella had never encountered any hikers or tourists on the mountain, and described the terrain as very steep, rocky, and slippery.

On the day of Niebla's arrest, Agent Colella learned that other agents had spotted four possible scouts on the mountain from an aircraft equipped with a camera that detects body heat. Agent Colella and another Border Patrol agent, Paul Gallegos, ascended the mountain by helicopter to investigate. The helicopter dropped them off near the mountain's summit, where they encountered two individuals later identified as Niebla and Andres Garcia–Espinoza. The agents apprehended Niebla and Garcia–Espinoza and searched the area where the men were hiding. They found cellular phones and radio batteries in a satchel Niebla was wearing, and hand-held radios, a pair of binoculars, and trash in two nearby caves. Both men were wearing camouflage clothing. Agent Colella arrested Niebla and Garcia–Espinoza on suspicion of smuggling and arranged for transport to the Ajo Border Patrol station. There, another Border Patrol agent, Manuel Alonzo, advised Niebla of his constitutional rights and, two hours later, interviewed him.

During this interview, Niebla admitted that he was on the mountain as a scout. He said that he helped two groups of smugglers carrying suitcases cross the border into the United States, and stated that he did not know what was in the suitcases, but that based on his experience, "it must be marijuana." Niebla specified that each group contained eight or ten people carrying roughly one suitcase per person, and that each suitcase weighed twenty kilograms. He explained that he knew how much the suitcases weighed because the smugglers told him before they crossed into the United States. Niebla said that he was on the mountain for three or four days before Agent Colella arrested him, and that he expected to remain on the mountain for roughly twenty more days. The agents did not recover any marijuana.

The government charged Niebla with conspiracy to possess with intent to distribute a controlled substance (Count One) and illegal reentry (Count Two). He pleaded guilty to the illegal-reentry count and proceeded to a bench trial on the conspiracy count. Niebla filed a pretrial motion to suppress his confession as involuntary, arguing that the agent who interviewed him, Agent Alonzo, threatened him with seven years' imprisonment if he did not confess. According to Niebla, Agent Alonzo primed him for the interview during the two-hour gap between the time Alonzo read Niebla his rights (an event that was not videotaped) and when the videotaped interview began.

A magistrate judge held a two-day evidentiary hearing on the motion to suppress, at which both Agent Alonzo and Niebla testified. Agent Alonzo testified that he advised Niebla of his constitutional rights and that Niebla willingly waived them and agreed to speak with the agent. The government introduced Niebla's signed rights form into evidence at the hearing. By contrast, Niebla denied any involvement in a drug-smuggling operation and testified that he admitted to helping two groups cross the border because Agent Alonzo "pressured me that if I didn't say that ... I was going to be there for seven years. That was the reason because he scared me. He pressured me."

The magistrate judge credited Agent Alonzo's description of the interview over Niebla's, largely because the court found Agent Alonzo's account to be more consistent with the videotape. Niebla claimed that Agent Alonzo raised his voice and pressured him into confessing, but Agent Alonzo could not be heard doing so on the videotape. The magistrate judge also found that Niebla's hearing testimony was internally inconsistent. He testified that he was on the mountain for several days without knowing why he was there or who he was with, but also stated on cross-examination that he expected to be paid for the work he performed on the mountaintop, that the work probably involved reporting on the movement of law-enforcement officers, and that he thought the suitcases being smuggled across the border would contain marijuana. Despite Niebla's insistence that he was not a member of a drug-smuggling operation, the magistrate judge recognized that, in his hearing testimony, Niebla ultimately admitted many of the details from his videotaped confession. The magistrate judge recommended denying the motion to suppress. The district court adopted the recommendation in a pretrial ruling.

At trial, the government presented the testimony of Agents Colella and Alonzo to describe Niebla's arrest and confession; an expert witness to explain how drug-trafficking organizations use scouts in the Ajo corridor; and evidence that Niebla was previously arrested for scouting in the same area in 2011. Niebla made an oral motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29 after the government presented its case. He argued that the government failed to produce sufficient evidence to corroborate his confession to conspiracy to distribute marijuana independent of the confession itself. Specifically, he contended that "the only real evidence presented by the Government of any agreement to distribute a specific controlled substance is Mr. Niebla's post arrest statements." The district court denied the motion, and Niebla chose not to present a defense. The district court found Niebla guilty, and explained its verdict:

Based upon the evidence, the Court finds that the defendant's guilty on the charge of conspiracy. The Court finds that being on the hillside as he was, in the middle of nowhere, dressed in camouflage clothes with binoculars, radio, batteries, and a satchel is sufficient evidence, and with his cohort, is sufficient evidence to find that there was agreement.

The Court finds from his own words that the object of the agreement was marijuana.²

The court sentenced Niebla to nine months' imprisonment and three years' supervised release. Niebla timely appealed his conviction. He argues that the conviction must be vacated under the corpus delicti doctrine because the government did not present sufficient evidence to corroborate his confession.

II. DISCUSSION

A. Standard of Review

Under Federal Rule of Criminal Procedure 29, "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." We review de novo the denial of a motion for acquittal. United States v. Corona–Garcia , 210 F.3d 973, 978 (9th Cir. 2000). We "ask whether, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Id. (quoting United States v. Bahena–Cardenas , 70 F.3d 1071, 1072–73 (9th Cir. 1995) ); see also Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

To obtain a conviction on the drug-conspiracy charge, the government was required to prove that: (1) there was an agreement between two or more people to commit the crime of possessing marijuana with the intent to distribute it; and (2) Niebla joined in the agreement, knowing that it had an unlawful purpose and intending to help...