United States v. Rodrigo Nieves-Cortez

FILED
OCT 27 2010

NOT FOR PUBLICATION MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 08-30417

Plaintiff - Appellee, D.C. No. 1:05-CR-30013-AA-2

v.
MEMORANDUM*
RODRIGO NIEVES-CORTEZ,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding

Argued and Submitted October 5, 2010
Portland, Oregon

Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.

Defendant Rodrigo Nieves-Cortez appeals his jury trial conviction of

conspiracy to possess with intent to distribute methamphetamine, possession of

methamphetamine with intent to distribute, and distribution of methamphetamine,

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). We affirm.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We are not persuaded that the evidence, when viewed in the light most

favorable to the government, was not sufficient to convict Nieves-Cortez of the

crimes charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.

Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc). The only elements at

issue on appeal were Nieves-Cortez’s knowledge and intent. The record contains

substantial evidence of Nieves-Cortez’s presence at drug transactions and

assistance to his wife in possession and distribution of methamphetamines on at

least two prior occasions. Defendant also drove his wife to a storage unit where

the methamphetamine was stored and then to the transaction which is the subject of

this indictment. From this evidence a trier of fact could reasonably infer that

Nieves-Cortez possessed the knowledge necessary for each of the crimes charged.

Defendant’s driving of a van loaded with methamphetamine “provides a substantial

basis for a conclusion of knowledge.” See United States v. Dixon, 460 F.2d 309

(9th Cir. 1972). Moreover, Dr. Harper’s testimony regarding Nieves-Cortez’s

limitations was qualified by his acknowledgment that others with Nieves-Cortez’s

limited capacity were involved in and aware of drugs.

Nieves-Cortez also challenges the district court’s denial of his motion to

suppress evidence seized during the execution of a search warrant. This issue is

2
moot, however, because “the government did not introduce any evidence seized

[pursuant to that search warrant] at trial.” United States v. Arias-Villanueva, 998

F.2d 1491, 1502 (9th Cir. 1993) (overturned on other grounds by United States v.

Gaudin, 515 U.S. 506 (1995)). Thus, Nieves-Cortez was not prejudiced by the

district court’s denial of his motion to suppress. Even if the issue were not moot,

we are not persuaded that the district court’s denial of the motion to suppress was

incorrect. Despite containing the wrong address, the warrant’s description of the

place to be searched was sufficiently particular. No other nearby house met the

warrant’s detailed description. There was no risk that the warrant would be

executed at the wrong house. The officer who wrote the affidavit in support of the

warrant knew which house it was intended to cover and personally participated in

the execution of the warrant. See United States v. Mann, 389 F.3d 869, 876-77

(9th Cir. 2004).

AFFIRMED.