NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 07 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-10352
Plaintiff - Appellee, D.C. No. 4:08-cr-00054-JMR-
CRP-1
v.
RANDY PATES, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, Chief District Judge, Presiding
Argued and Submitted November 29, 2010
San Francisco, California
Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.
This is an appeal from a judgment of conviction and sentence for possession
with intent to distribute marijuana, conspiracy to import marijuana, importation of
marijuana, and conspiracy to possess with intent to distribute marijuana in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
violation of 21 U.S.C. §§ 841, 846, 952 and 960. The district court sentenced
Pates to 90 months imprisonment, followed by 48 months of supervised release.
Pates’ central position in this appeal is related to his low IQ score. He first
contends that the district court erred in finding that his written waiver of Miranda
rights was voluntary and knowing. Before signing the waiver, he had the rights
explained to him and indicated that he understood them. There was no evidence
that any mental deficiencies or insufficiencies affected his understanding. Nor was
there any evidence that his confession, which followed the waiver, was anything
other than voluntary. The fact that Agent Perez accused Pates of lying does not
itself make the questioning coercive. United States v. Wolf, 813 F.2d 970, 975 (9th
Cir. 1987). There was no error.
Although the government provided the defense with a copy of Agent Perez’s
report of his interview of Pates, the defense asked, in addition, for Perez’s
handwritten notes. The district court did not err in declining to require the
government to produce the notes. The district court pointed out that all of the
matters contained in the notes of Perez’s interview with the defendant were in the
report. Therefore, even assuming that the notes were “statements” within the
meaning of the Jencks Act, the defendant did not suffer any prejudice.
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Moreover, Agent Perez used the notes to complete the report and it was the
report that was intended to be communicated to others. For that reason, we have
explained that in a typical case only the formal interview report, through which the
agent intends to communicate to others, will be a “statement” under the Jencks Act.
United States v. Reed, 575 F.3d 900, 921 (9th Cir. 2009) (quoting United States v.
Griffin, 659 F.2d 932, 938 n.4 (9th Cir. 1981)). An agent’s handwritten notes are
usually too incomplete to constitute statements envisioned by the Jencks Act.
Griffin, 659 F.2d at 937. This case is unlike United States v. Johnson, 521 F.2d
1318 (9th Cir. 1975), upon which Pates relies. In Johnson, we held that the district
court erred in not inspecting the agent’s handwritten notes in camera because we
said that the court might have decided that the agent’s notes were “adopted and
approved” by him. Id. at 1319. Here, only the report itself was “adopted and
approved” by Perez as his own statement.
The district court did not err in refusing to permit Pates’ sister to testify
about his mental deficiencies, as she was in no position to testify as to the
defendant’s understanding of the crime with which he was charged and convicted.
The district court also did not err in concluding that the “nine steps of
interrogation” were irrelevant because Agent Perez did not use them during the
interview. Therefore, the district court did not abuse its discretion in limiting
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defense counsel’s cross-examination of Agent Perez. Similarly, David Mendham’s
testimony was appropriately limited to exclude events that occurred almost a year
earlier, and had no relevance to defendant’s case.
There was no error in refusing to give a diminished capacity instruction, for
as the district court observed, there is no indication that the defendant’s mental
condition affected his ability to understand the crime at the time it was committed.
For similar reasons, the district court did not err in finding that a downward
departure was unwarranted. The sentence was reasonable.
AFFIRMED.
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