U.S. v. Gamez

• Citation: 301 F.3d 1138
• Decision Date: 29 August 2002
• Docket Number: No. 00-10307.,00-10307.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel GAMEZ, a.k.a. Manuel Gamez-Rubio, Gustavo Gamez, Manuel Flores-Falvez, Manuel Gomez-Rubio, Manuel Flores-Galvez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

301 F.3d 1138

UNITED STATES of America, Plaintiff-Appellee, v. Manuel GAMEZ, a.k.a. Manuel Gamez-Rubio, Gustavo Gamez, Manuel Flores-Falvez, Manuel Gomez-Rubio, Manuel Flores-Galvez, Defendant-Appellant.

No. 00-10307.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 14, 2002.

Filed August 29, 2002.

COPYRIGHT MATERIAL OMITTED

Victoria A. Brambl, Assistant Federal Public Defender, Tucson, AZ, for the appellant.

Mary Sue Feldmeier, Assistant United States Attorney, Tucson, AZ, for the appellee.

Appeal from the United States District Court for the District of Arizona; John Roll, District Judge, Presiding. D.C. No. CR-98-788-TUC-JMR.

Before: SNEED, BRUNETTI and T.G. NELSON, Circuit Judges.

SNEED, Circuit Judge.

Manuel Gamez appeals his conviction and 151-month sentence for drug importation. Gamez was charged with various marijuana and murder-related offenses. The jury acquitted him on all murder-related charges but found him guilty of all marijuana-related charges. The district court applied U.S.S.G. § 2D1.1(d)(1)'s murder cross-reference to impose a 151-month sentence on Gamez when he otherwise would have been subject to a Guidelines maximum sentence of 46 months. The district court applied the murder cross-reference because it found that murder was both foreseeable and in furtherance of the marijuana importation conspiracy in which Gamez participated even though it found that Gamez did not commit murder. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

BACKGROUND

On the night of June 2, 1998, Border Patrol Agents Alexander Kirpnick ("Kirpnick") and Steven Heiden ("Heiden") were searching for illegal aliens in Potrero Canyon, north of the Arizona-Mexico border. They saw four men walking in a line, two of whom were walking several feet in front of the others. Each was carrying a bag containing approximately twenty-five pounds of marijuana.

Kirpnick went toward the two smugglers walking in the front of the line. He told them to "sit down." Heiden approached Gamez and another smuggler in the back of the line, both of whom dropped their bags and ran away. Heiden then yelled to Kirpnick that he had found drugs. Kirpnick responded "I know." Five seconds later, one of the smugglers next to Kirpnick shot him in the head. Kirpnick died the next morning. Gamez was not the shooter.¹

On June 3, 1998, Gamez was arrested after admitting to illegal entry to the United States. He was placed in a cell at the Nogales Border Patrol station at 7:30 a.m. where he remained for the next thirty-one hours. He was fed once. Gamez was not physically or psychologically mistreated. However, he was not advised of his right to contact the Mexican Consulate.

During his detention, Gamez was interrogated on three separate occasions. The first interrogation was conducted by a Spanish-speaking FBI Agent, Robert Gauna ("Gauna"), and Sheriff Roberto Morales ("Morales"). It lasted eighty minutes. Gauna read Gamez his Miranda rights in Spanish. Gamez acknowledged that he understood his rights and signed a Spanish INS waiver form. Gauna told Gamez that a federal officer had been killed close to where Gamez was arrested and that his shoes matched the footprints found at the crime scene. Gauna also told Gamez that he was being investigated for murder.

Gamez confessed to Gauna that he had been recruited by co-defendant Bernardo Velarde-Lopez ("Velarde-Lopez") to smuggle marijuana from Mexico to the United States for $400. He said that Velarde-Lopez was armed with a .38 caliber handgun at the time of the shooting. Gamez knew that Velarde-Lopez was armed with a gun from the beginning of the trip. Gamez, in fact, handled the gun during a water break long before the shooting. Gamez said that when the group was confronted by the Border Patrol, he was third in line and dropped his bag and ran away. Forty seconds later, he heard two gunshots.

The second interrogation was conducted at 5:00 p.m. by another Spanish-Speaking FBI Agent, Jay Galindo ("Galindo") and Morales. It lasted one hour. Galindo read Gamez his Miranda rights in Spanish. Gamez indicated that he understood his rights and signed a waiver form in Spanish. When questioned about Kirpnick's murder, Gamez insisted that Velarde-Lopez must have shot Kirpnick because he was the only one with a gun. Gamez denied any involvement in Kirpnick's murder.

The next morning, June 4, 1998, Gamez was interrogated by another Spanish-speaking FBI agent, Gilbert Garcia ("Garcia"). Garcia told Gamez that he was being investigated for the murder of a Border Patrol agent. Garcia gave Gamez a Spanish polygraph consent form which explained his right not to take the test. Gamez signed the form. He was then subjected to a polygraph test in which he was asked whether he shot Kirpnick or held a revolver in his hands at the time of the shooting. Gamez answered "no" to both questions.

Following the test, Garcia told Gamez that he was going to be charged with murder and that "it would behoove [him]" to identify Kirpnick's shooter. Gamez again reiterated that Velarde-Lopez shot Kirpnick. Gamez also gave detailed directions to Velarde-Lopez's house in Nogales. There was no other source for this information. Utilizing this intelligence, the FBI and the Mexican police were able to arrest co-defendants Velarde-Lopez and Luis Arenas-Hernandez ("Arenas-Hernandez"), both of whom were extradited to the United States for prosecution.

Gamez made his initial appearance before a magistrate on the afternoon of June 4, 1998 at 2:00 p.m. The FBI failed to take Gamez to a magistrate on June 3, 1998 because on that day the first available Spanish-speaking FBI agent arrived at the Border Patrol station at 10 a.m. It was then too late to schedule an appearance before the magistrate. Although it would have been standard procedure for the FBI to take Gamez to the federal prison in Tucson the previous night, the FBI could not do so because all agents in the area were involved in the murder investigation.

Gamez and his co-defendants, Velarde-Lopez and Arenas-Hernandez, were indicted with the following seven counts: (1) conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846 (count 1); (2) possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (count 2); (3) possession of a firearm during a drug trafficking crime in which death results, in violation of 18 U.S.C. § 924(c)(1) and (j)(1) (count 3); (4) murder of a federal officer while engaged in his official duties, in violation of 18 U.S.C. §§ 1111 and 1114 (count 4); (5) murder of a federal officer during commission of a narcotics felony, in violation of 21 U.S.C. § 848(e)(1)(B) (count 5); (6) conspiracy to import marijuana, in violation of 21 U.S.C. §§ 952(a) and 963 (count 6); and, (7) importation of marijuana, in violation of 21 U.S.C. § 952(a) (count 7).

Subsequently, the district court denied Gamez's motion to suppress his statements to the FBI. It also denied Gamez's motion to dismiss the indictment due to the government's failure to bring him before a magistrate without unnecessary delay.

Following a 15-day trial, the jury found Gamez guilty of counts 1, 2, 6, and 7 of the indictment. It acquitted him on counts 3, 4, and 5 of the indictment.² Thus, Gamez was found guilty of all marijuana-related charges but acquitted on all murder-related charges.

Velarde-Lopez was found guilty of Kirpnick's murder and sentenced to two consecutive life terms. Arenas-Hernandez pleaded guilty to counts 1 and 3 of the indictment and was sentenced to 15 years.

The district court sentenced Gamez to 151 months imprisonment followed by 36 months of supervised release. Although the district court found that Gamez did not murder Kirpnick, it applied the murder cross-reference of U.S.S.G. § 2D1.1(d)(1) to enhance Gamez's sentence by 105 months. It did so because it found that Kirpnick's murder was both foreseeable and in furtherance of the marijuana-importation conspiracy in which Gamez participated.

Gamez appeals his conviction on the ground that his statements to the FBI were involuntary. Gamez also appeals his sentence on the ground that application of U.S.S.G. § 2D1.1(d)(1)'s murder cross-reference to enhance his sentence by 105 months violated his constitutional rights.

DISCUSSION

I. Gamez's Statements to the FBI Were Voluntary.

A. Gamez's Pre-Arraignment Delay Did Not Require Suppression of His Statements.

Gamez contends that his statements to the FBI during his 31-hour detention should be excluded because they were a product of pre-arraignment delay. Federal Rule of Criminal Procedure 5(a) requires that a person arrested for a federal offense be taken before a magistrate "without unnecessary delay." Fed. R.Crim.P. 5(a). We look to 18 U.S.C. § 3501(c) to determine whether pre-arraignment statements obtained in violation of Rule 5(a) are admissible. United States v. Van Poyck, 77 F.3d 285, 288 (9th Cir. 1996), cert. denied, 519 U.S. 912, 117 S.Ct. 276, 136 L.Ed.2d 199 (1996).

Section 3501(c) creates a six-hour "safe harbor" during which a confession will not be excluded because of delay. United States v. Alvarez-Sanchez, 975 F.2d 1396, 1399-1400 (9th Cir.1992), rev'd on other grounds, 511 U.S. 350, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994). A court may exclude statements made outside the six-hour safe harbor if the delay was unreasonable or public policy does not favor admission. Van Poyck, 77 F.3d at 289. Neither of these standards suggests that Gamez's statements should be excluded for pre-arraignment delay.

Gamez was brought to the Border Patrol station at 7:30 a.m. He was taken to a magistrate at 2:00 p.m. the next day. Although Gamez's statements fall outside the six-hour safe harbor, his 31-hour detention was reasonable. Gamez did not speak English and could not have been interrogated prior to approximately 10:30 a.m. on the first day of his detention when the first available...