FILED
NOT FOR PUBLICATION DEC 14 2009
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 08-50547
Plaintiff - Appellee, D.C. No. 3:08-cr-01456-LAB-1
v.
MEMORANDUM *
KERMIT PEREDA-REBOLLO,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 08-50552
Plaintiff - Appellee, D.C. No. 3:08-cr-01456-LAB-2
v.
MEMORANDUM *
DANNY PRECIADO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted December 10, 2009 **
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Before: HALL and SILVERMAN, Circuit Judges, and CONLON, *** District
Judge.
Kermit Pereda-Rebollo and Danny Preciado appeal from their convictions
under 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(ii) for transportation of illegal aliens.
Both contend the district court erred by denying them an evidentiary hearing and
denying their motion to suppress evidence obtained during an investigatory stop of
their vehicle. Pereda-Rebollo appeals the denial of his motion to dismiss the
indictment and motion to suppress post-arrest statements. Preciado appeals the
denial of his motion for judgment of acquittal. We have jurisdiction under 28
U.S.C. § 1291, and we affirm. The parties are familiar with the facts and
procedural history, so we repeat them here only as necessary.
The district court did not err in denying Pereda-Rebollo’s motion to dismiss
the indictment because of improper grand jury instructions. The challenged
instructions are constitutional. See United States v. Cortez-Rivera, 454 F.3d 1038,
1040-41 (9th Cir. 2006); United States v. Navarro-Vargas, 408 F.3d 1184, 1202-06
(9th Cir. 2005) (en banc).
***
The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
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Pereda-Rebollo argues his post-Miranda statements should have been
suppressed because the administrative warnings and Miranda warnings given to
him in quick succession were contradictory. We review the adequacy of Miranda
warnings de novo, United States v. San Juan-Cruz, 314 F.3d 384, 387 (9th Cir.
2002), and we reject Pereda-Rebollo’s contention that he received contradictory or
inconsistent warnings. The record shows he was fully informed of his right to
counsel before and during questioning, and that he knowingly and voluntarily
waived that right. We also reject Pereda-Rebollo’s assertion that the Miranda
warnings provided to him in Spanish were insufficient to convey the government’s
obligation to provide an accused indigent with counsel. Duckworth v. Eagan, 492
U.S. 195, 202-03 (1989) (no talismanic incantation is required to satisfy Miranda’s
strictures). The totality of the warnings adequately informed Pereda-Rebollo of the
right to appointed counsel if he could not afford a lawyer. United States v. Miguel,
952 F.2d 285, 288 (9th Cir. 1991). The district court did not err in denying Pereda-
Rebollo’s motion to suppress statements.
We review for abuse of discretion a district court’s decision whether to
conduct an evidentiary hearing on a motion to suppress. United States v. Quoc Viet
Hoang, 486 F.3d 1156, 1163 (9th Cir. 2007). A hearing is only required “when the
moving papers allege facts with sufficient definiteness, clarity, and specificity to
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enable the trial court to conclude that contested issues of fact exist.” United States
v. Howell, 231 F.3d 615, 620 (9th Cir. 2000). Because appellants’ moving papers
raised no disputed factual issue regarding the investigatory stop, the district court
did not abuse its discretion in denying an evidentiary hearing. Absent a disputed
issue of fact, the district court was not required to make findings of fact on the
record pursuant to Fed. R. Crim. P. 12(d). Neither appellant raised in the district
court the argument that Preciado makes for the first time on appeal – that the
Border Patrol radio call could not possibly have been the impetus for the
appellants’ arrest, because it was broadcast after the appellants had already been
arrested.
Appellants contend the border patrol agents lacked reasonable suspicion to
stop their vehicle. We review de novo the district court’s denial of the motion to
suppress, and we may affirm on any basis supported in the record. United States v.
Lemus, 582 F.3d 958, 961 (9th Cir. 2009). In the border patrol context, reasonable
suspicion to perform an investigatory stop may be based on: (1) characteristics of
the area; (2) proximity to the border; (3) usual traffic patterns on a particular road;
(4) previous smuggling in the area; (5) driver’s behavior; (6) passengers’ behavior;
(7) aspects of the vehicle; and (8) officer experience. United States v. Garcia-
Barron, 116 F.3d 1305, 1307 (9th Cir. 1997).
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The border patrol agents had reasonable suspicion to perform the
investigatory stop. One agent first became suspicious after seeing appellants in a
dump truck driving eastbound close to the Mexican border. In the agent’s
experience, it was unusual for a dump truck to be in that area on a Sunday
morning. Later that morning, agents heard a radio dispatch regarding a citizen’s
report of a dump truck picking up illegal aliens. The location corresponded to the
direction in which one of the agents earlier saw the dump truck heading. The area
was known for alien smuggling, especially when the nearby checkpoint was
closed, as it was that day. Shortly after hearing the radio transmission, agents
observed the dump truck returning westbound. They performed an investigatory
stop. The totality of the circumstances supports a finding of reasonable suspicion
of criminal activity. United States v. Arvizu, 534 U.S. 266, 273 (2002).
The district court did not err in denying Preciado’s Fed. R. Crim. P. 29
motion for judgment of acquittal. The testimony of the border patrol agents and
material witnesses, as well as the evidence of appellants’ post-arrest statements,
were sufficient to establish that Preciado knowingly aided and abetted the
transportation of illegal aliens.
AFFIRMED.
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