FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-10519
Plaintiff-Appellant,
v. D.C. No.
CV-05-00833-JCM
RANDY S. STANTON,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
June 13, 2007—San Francisco, California
Filed August 31, 2007
Before: Alfred T. Goodwin, Jay S. Bybee, and
Milan D. Smith, Circuit Judges.
Opinion by Judge Goodwin
11147
UNITED STATES v. STANTON 11149
COUNSEL
Peter S. Levitt, Assistant United States Attorney, Robert Ell-
man Appellate Chief, Las Vegas, Nevada, for the plaintiff-
appellant.
John G. Watkins, Las Vegas, Nevada, for the defendant-
appellee.
OPINION
GOODWIN, Circuit Judge:
A magistrate judge found Randy S. Stanton (“Stanton”)
guilty of driving while under the influence of alcohol to a
degree that rendered him incapable of safe operation. On
appeal from this conviction the district court reversed, holding
11150 UNITED STATES v. STANTON
that insufficient evidence supported the magistrate’s decision.
The United States appeals the district court’s ruling, contend-
ing that it erred by concluding that no rational trier of fact
could have found Stanton guilty beyond a reasonable doubt.
Stanton counters that we lack subject matter jurisdiction over
the government’s appeal; and, in the alternative, he argues
that the government did not adduce sufficient evidence to sup-
port his conviction. We hold first that we have jurisdiction to
hear this appeal. On the merits, we reverse the district court’s
order and remand for further proceedings.
I. BACKGROUND
Stanton’s sufficiency of the evidence argument requires us
to consider the entire record in the light most favorable to the
prosecution, to determine whether “any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). Accordingly, we discuss the record evidence in some
depth.
The United States charged Stanton by criminal complaint
with three offenses arising from his activities on the evening
of April 13, 2004. Count One alleged that he operated a motor
vehicle under the influence of alcohol, in violation of 36
C.F.R. § 4.23(a)(1). Count Two charged Stanton with operat-
ing a motor vehicle with a blood alcohol content (“BAC”) of
.08 grams or more, in violation of 36 C.F.R. § 4.23(a)(2), and
Count Three charged him with speeding, in violation of 36
C.F.R. § 4.21(c). Stanton consented to trial by a magistrate,
and proceeded to a two-day bench trial.
Trial evidence shows that on April 13, 2004, Stanton
attended a wine tasting in Boulder City, Nevada, that began
at approximately 6:15 p.m. Stanton consumed one to two
ounces of at least four different wines at the tasting, and also
had several one to two ounce “additional pours,” or re-fills.
Stanton left the wine tasting around 8:40 p.m., and went to a
UNITED STATES v. STANTON 11151
restaurant. There he ordered a glass of wine around 9 p.m.,
finished his drink around 9:25 p.m., stopped briefly at his
office, and then headed home.
National Park Service Ranger Lena Boesser-Koschmann
(“Koschmann”) was on patrol in the Lake Mead National
Recreation Area that evening. At approximately 9:40 p.m.
Koschmann clocked Stanton driving 70 miles an hour in a
posted 45 mile an hour zone within the federal recreation
area, and pulled the vehicle over. She approached the vehicle
to inform Stanton that he had been speeding, and observed “a
strong odor of an alcoholic beverage about his person.”
Koschmann also observed that “his eyes were bloodshot and
watery,” and that his speech was “very slow and deliberate.”
After Stanton stated that he had been drinking at a wine tast-
ing, Koschmann asked him to step out of the vehicle and
observed that “his balance was somewhat unsure as he walked
toward the back of the vehicle.”1 Koschmann then conducted
a set of field sobriety tests (“FSTs”), each of which indicated
Stanton was intoxicated. During the “horizontal gaze nystag-
mus test,” which measures involuntary eye movements,
Koschmann observed four of a possible six clues indicating
poor performance, and testified that she concluded “[t]here
was a high probability that he had alcohol in his system, that
it was effecting [sic] him.” Stanton challenged the validity of
these results, arguing they were tainted because he was look-
ing directly into the headlights and emergency lights on
Koschmann’s vehicle during the test. Stanton also failed the
“walk and turn test,” during which Koschmann observed six
of a possible eight clues indicating intoxication. Specifically,
Koschmann testified that Stanton: lost his balance and stepped
out of position while she gave instructions; stepped off line
multiple times; used his arms for balance; stopped walking
altogether at one point; turned incorrectly; and took an incor-
rect number of steps. Finally, Stanton failed the “one-leg
1
Koschmann also made the “general observation” that Stanton was
“swaying and wobbling” during the time he was outside of the vehicle.
11152 UNITED STATES v. STANTON
stand test.” Stanton exhibited all four clues this test examines
(swaying, hopping, putting foot down, using arms to balance),
and after he placed his foot on the ground a third time, Kosch-
mann stopped the test because she “was concerned for his
safety.” Koschmann testified repeatedly that the tests were
performed on a flat, paved surface on the side of the road, and
also testified that the weather was clear and dry. Conversely,
Stanton testified that the roadside testing took place on un-
level ground, but at no time did he alert Koschmann to any
problems or difficulties he had performing the tests.
Koschmann thereafter conducted a preliminary breath test
(“PBT”) at the scene, which indicated Stanton’s BAC was .115.2
Given the totality of the circumstances and her observations
of Stanton, Koschmann placed him under arrest and took him
to a nearby ranger station. At the station, approximately fifty
minutes after the initial stop, Koschmann administered two
breath tests using an Intoxilyzer machine. At trial Koschmann
testified that Stanton blew a .141 on the first test, and a .144
on the second. However, the magistrate sustained a defense
objection to any testimony about whether these results placed
Stanton over the legal BAC limit, because the government
had failed to lay a sufficient foundation for what the Intoxi-
lyzer results represented. The magistrate later granted Stan-
ton’s Rule 29 motion for acquittal on Count Two.
On the night of his arrest, after being advised of his
Miranda rights, Stanton stated that he had not eaten since
having a protein shake that morning, that he had begun drink-
ing at 6 p.m. that night, and — despite his own testimony
about the 9 p.m. glass of wine at the restaurant — that he had
his last drink of the evening at approximately 8 p.m. Stanton
also stated that on a scale from one (low) to ten (high), “he
2
A violation of 36 C.F.R. § 4.23(a)(2), charged as Count Two in this
case, requires a BAC of .08 or more. The magistrate admitted Stanton’s
PBT result solely for its probative value to establish probable cause for
arrest.
UNITED STATES v. STANTON 11153
felt he was a four” with regard to the extent he was under the
influence of alcohol. Finally, Stanton concluded, “I feel
buzzed. I felt more of a buzz when you pulled me over.”
Stanton also testified at trial before the magistrate. He
stated that he had attended and partaken at the wine tasting,
and later ordered the glass of wine at the restaurant. He also
stated that he did not believe the wine placed him in a condi-
tion that he could not safely operate his vehicle. He also testi-
fied that he did not believe he was driving seventy miles an
hour when Koschmann encountered him, that he told the
ranger so, and that he generally travels five to ten miles per
hour over the speed limit on that stretch of road.
At the close of evidence and argument, the magistrate gave
a short verbal ruling on the two remaining counts. First, the
magistrate convicted Stanton of the speeding charge in Count
Three, stating that she was persuaded beyond a reasonable
doubt that the government had proven its case. The magistrate
also found Stanton guilty of Count One, holding that under
the totality of circumstances he was incapable of safely oper-
ating his vehicle because of the degree to which he was under
the influence of alcohol. The magistrate accepted Stanton’s
argument regarding the “horizontal gaze nystagmus test,” and
placed no weight on the test because it was “conducted under
less than idea[l] circumstances.” Nonetheless, the magistrate
relied particularly on the Intoxilyzer results (which indicated
Stanton had been drinking even if they did not conclusively
show an above-limit BAC), Koschmann’s field observations,
the speed at which Stanton was driving, his disregard for the
speed at which he was driving, and his post-custody state-
ments that he was more intoxicated at the time of his stop than
at the time he was questioned. Considering all the evidence
adduced as a whole, the magistrate concluded that the govern-
ment had proved its case on Count One, and found Stanton
guilty of that charge. The magistrate then sentenced Stanton
to a twelve-month term of unsupervised probation, a $500
11154 UNITED STATES v. STANTON
fine, sixty-four hours of community service, and DUI coun-
seling.
Stanton appealed to the district court, arguing insufficient
evidence supported his conviction on Count One. In a one-
page order the district court reversed, holding that considering
the evidence in the light most favorable to the prosecution, no
rational trier of fact could have found the essential elements
of Count One beyond a reasonable doubt. The government’s
timely appeal — and Stanton’s unsuccessful motion in this
court to dismiss for lack of subject matter jurisdiction — fol-
lowed.
II. DISCUSSION
A. Jurisdiction
[1] Stanton’s contention that we lack jurisdiction to enter-
tain the government’s appeal is without merit. Stanton accu-
rately identifies the fundamental rule that “the United States
cannot appeal in a criminal case without express congressio-
nal authorization.” United States v. Martin Linen Supply Co.,
430 U.S. 564, 568 (1977). He also correctly points out that the
governing statute, the Criminal Appeals Act, on its face
authorizes the United States to appeal only from a “judgment
. . . of a district court dismissing an indictment or information
. . . except that no appeal shall lie where the double jeopardy
clause of the United States Constitution prohibits further pros-
ecution.” 18 U.S.C. § 3731. However, his argument flowing
from these two basic premises is flawed.
Because express congressional authorization is required to
support a government appeal in a criminal case, and because
§ 3731 does not on its face authorize the government to
appeal from a district court order reversing a conviction
entered by a magistrate, and ordering an entry of acquittal,
Stanton argues that this court is stripped of jurisdiction.
Although we have not yet addressed this issue, Stanton’s posi-
UNITED STATES v. STANTON 11155
tion is contrary to controlling Supreme Court authority, and
to the jurisprudence of every other circuit that has considered
the question.
In United States v. Wilson, 420 U.S. 332 (1975), the jury
returned a guilty verdict that was subsequently vitiated by the
trial court’s post-verdict dismissal of the indictment on speedy
trial grounds. 420 U.S. at 334. The government sought to
appeal, but the Third Circuit held that because the district
court’s ruling was effectively an acquittal, the Double Jeop-
ardy Clause prevented the government from constitutionally
appealing the ruling. Id. at 335. Considering the present ver-
sion of § 3731, which had recently undergone substantial revi-
sion, the Supreme Court first noted that the revised statute
eliminated many of the prior limitations on the government’s
appeal rights. Id. at 336-37. In combination with the new lan-
guage, the court considered at length the legislative history
underlying the revised Act and determined it was “clear that
Congress intended to remove all statutory barriers to Govern-
ment appeals and to allow appeals whenever the Constitution
would permit.” Id. at 337. Because “Congress was determined
to avoid creating nonconstitutional bars to the Government’s
right to appeal,” the Court turned next to a lengthy double
jeopardy analysis. Id. at 339. Having surveyed the evolution
of double jeopardy jurisprudence, the Court concluded that
“where there is no threat of either multiple punishment or suc-
cessive prosecutions, the Double Jeopardy Clause is not
offended.” Id. at 344. Because the jury had rendered a guilty
verdict, and because reversal of the district court’s order on
appeal would do nothing more than reinstate that verdict, the
appeal presented no threat of a successive prosecution or mul-
tiple punishments for the same offense. Id. at 344-45, 353.
Accordingly, there was no double jeopardy violation, and the
government was constitutionally free to bring the appeal
under § 3731. Id. at 353.
The procedural posture in Wilson — a trial court’s dis-
missal of an indictment — fit squarely within the terms of
11156 UNITED STATES v. STANTON
§ 3731, regardless of the Court’s broad interpretation of the
statute. Just two years later, the Court gave a similarly broad
construction to a different portion of the statute in United
States v. Martin Linen Supply Co., 430 U.S. 564 (1977). In
that case a “hopelessly deadlocked” jury was discharged after
failing to reach a verdict. 430 U.S. at 565. After the jury’s dis-
missal the district court granted the defendants’ motions for
judgment of acquittal under Federal Rule of Criminal Proce-
dure 29, a decision from which the government sought appeal
under § 3731. Id. at 566-67. Noting that the statute by its
terms authorizes appeal from a “dismiss[al]” rather than “ac-
quittal,” the Court nonetheless followed the Wilson example
of construing the statute broadly, stating that unless barred by
the Constitution, Rule 29 acquittals may be appealed because
“the form of the ruling is not dispositive of appealability in a
statutory sense.” Id. at 567 n.4; see also id. at 568. The Court
then applied the Wilson constitutional analysis, beginning
from the premise that since its common-law origins, double
jeopardy protection has been “directed at the threat of multi-
ple prosecutions, not at Government appeals, at least where
those appeals would not require a new trial.” Id. at 568-69
(quoting Wilson, 420 U.S. at 342). Because no guilty verdict
was returned before the district court granted the defendants’
motions for acquittal, reversing the district court would have
necessarily created the threat of a second prosecution for the
same act, in violation of the Double Jeopardy Clause. Id. at
569-70; 575-76. Accordingly, no appellate review was avail-
able under § 3731.
[2] Sitting as an appellate court reviewing the magistrate’s
decision, the district court here did not style its order as a
Rule 29 acquittal. Instead, the district court stated that
because of “the insufficiency of the evidence to support the
finding of guilt on Count I,” Stanton’s conviction on that
count was ordered reversed, and a finding of not guilty was
ordered to be entered. Regardless of its form, the district
court’s order is clearly an acquittal in substance because it
represents “a determination that the evidence was insufficient
UNITED STATES v. STANTON 11157
to convict.” United States v. Ogles, 440 F.3d 1095, 1103 (9th
Cir. 2006) (en banc).
[3] Accordingly, under Martin Linen the district court’s
judgment of acquittal is appealable unless reversing the dis-
trict court’s order would violate the Double Jeopardy Clause.
Stanton makes no argument on this point, nor can he. Because
reversal of the district court’s order would merely reinstate
the guilty verdict entered by the magistrate, our review “does
not offend the policy against multiple prosecution.” Wilson,
420 U.S. at 345. Not only does this conclusion flow naturally
from Wilson and Martin Linen, but it also aligns with the
jurisprudence of the other circuits that have considered the
issue, each of which has determined that § 3731 authorizes a
government appeal where a district court either reverses a
conviction entered by a magistrate (as here), or affirms a mag-
istrate’s judgment of acquittal after a jury verdict of guilty.
See United States v. Duncan, 164 F.3d 239, 242 (5th Cir.
1999); United States v. Aslam, 936 F.2d 751, 754 (2d Cir.
1991); United States v. Forcellati, 610 F.2d 25, 29-30 (1st
Cir. 1979); United States v. Moore, 586 F.2d 1029, 1031-32
(4th Cir. 1978).
[4] We dispose quickly of Stanton’s other jurisdictional
argument — that § 3731 does not apply because he was
charged under a criminal complaint, rather than an indictment
or information. The various charging documents are unques-
tionably distinct. Compare Fed. R. Crim. P. 3, with Fed. R.
Crim. P. 6(f) and Fed. R. Crim. P. 7(c). However, Stanton’s
position cannot be reconciled with Wilson’s central holding
that § 3731 should be applied to “allow appeals whenever the
Constitution would permit.” Wilson, 420 U.S. at 339. Nor can
it be squared with the statutory mandate that § 3731 “shall be
liberally construed to effectuate its purposes,” which the
Supreme Court has identified as “avoid[ing] creati[on] [of]
nonconstitutional bars to the Government’s right to appeal.”
Id. Stanton has simply shown no constitutional reason why
§ 3731 should not apply because he was charged under a
11158 UNITED STATES v. STANTON
criminal complaint, rather than under an indictment or infor-
mation. Accordingly, we join the Second and Fourth Circuits
in holding that § 3731 authorizes a government appeal under
the circumstances of this case. See Aslam, 936 F.2d at 754;
Moore, 586 F.2d at 1031.
B. Sufficiency of the evidence
We next consider whether the district court erred by con-
cluding that insufficient evidence existed to support Stanton’s
conviction on Count One.
On appeal to the district court, Stanton was not entitled to
a trial de novo. Rather, the appropriate scope of the district
court’s review “is the same as in an appeal to the court of
appeals from a judgment entered by a district judge.” Fed. R.
Crim. P. 58(g)(2)(D). That standard is familiar and well-
defined. Claims of insufficient evidence are reviewed de
novo. United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th Cir.
2004). There is sufficient evidence to support a conviction if,
“viewing the evidence in the light most favorable to the prose-
cution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson,
443 U.S. at 319. As Jackson explained, this deferential stan-
dard of review protects the trier of fact’s responsibility to
resolve conflicting testimony, weigh the evidence, and draw
reasonable inferences from the evidence presented. Id. A
reviewing court need not “ask itself whether it believes that
the evidence at the trial established guilt beyond a reasonable
doubt.” Id. at 318-19 (internal quotation marks and citation
omitted). Rather, the reviewing court must respect the prov-
ince of the trier of fact by considering all evidence in the light
most favorable to the prosecution and drawing all reasonable
inferences in favor of the prosecution. Wright v. West, 505
U.S. 277, 296-97 (1992); United States v. Alvarez-Valenzuela,
231 F.3d 1198, 1201 (9th Cir. 2000). Finally, “a reviewing
court faced with a record of historical facts that supports con-
flicting inferences must presume — even if it does not affir-
UNITED STATES v. STANTON 11159
matively appear in the record — that the trier of fact resolved
any such conflicts in favor of the prosecution, and must defer
to that resolution.” Wright, 505 U.S. at 296-97 (internal quo-
tation marks omitted).
To convict on Count One the magistrate was required to
find beyond a reasonable doubt that Stanton: (1) was operat-
ing a vehicle; (2) while under the influence of alcohol; (3) to
a degree that rendered him incapable of safe operation. 36
C.F.R. § 4.23(a)(1). The first two elements are not in dispute.
Considering the evidence put on at trial in the light most
favorable to the government, drawing all reasonable infer-
ences therefrom and resolving any evidentiary conflicts in the
government’s favor, we hold that a rational trier of fact could
have found beyond a reasonable doubt that Stanton was inca-
pable of safely operating his vehicle.
[5] First, the record reflects that over the course of three
hours Stanton consumed numerous glasses of at least four dif-
ferent wines. After having done so, he took a nighttime drive
at seventy miles an hour — twenty-five miles per hour above
the posted limit — and when he was pulled over he told
Koschmann he did not think he was going that fast. The rea-
sonable inferences arising from these facts alone support the
magistrate’s conclusion that Stanton “was speeding but
wasn’t paying attention to what his speedometer said.”
[6] Second, Koschmann’s observations of Stanton in the
field significantly support the conviction. Koschmann, who
had made between fifty and seventy-five stops for driving
under the influence, and approximately twenty arrests,
observed a “strong odor” of alcohol on Stanton’s person. She
also saw that his eyes were bloodshot and watery, and that his
speech was very slow and deliberate. Furthermore, Kosch-
mann observed that Stanton’s balance was unsteady when he
stepped out of the car, and that he generally swayed and wob-
bled during the course of her field evaluation. Although any
of these factors — singly or collectively — might be
11160 UNITED STATES v. STANTON
explained innocently, “the prosecution need not affirmatively
rule out every hypothesis except that of guilt.” Wright, 505
U.S. at 296 (internal quotation marks and citation omitted).
Given the uncontroverted record evidence that Stanton had
consumed wine consistently from 6-9 p.m., these field obser-
vations support the reasonable inference that Stanton was
under the influence of alcohol to an unsafe degree.
[7] Objective evidence that Stanton failed two FSTs also
supports the magistrate’s verdict. Koschmann testified that
Stanton failed all four portions of the “one-leg stand test,”
which the ranger ultimately stopped to ensure Stanton’s
safety. The record also shows that Stanton showed six of eight
possible clues of intoxication during the “walk-and-turn test,”
in which evidence of two clues can generally establish impair-
ment that makes driving unsafe. Furthermore, Koschmann
explained the significance of the “walk-and-turn test” in that
it tests “many of the same skills needed for driving,” such as
small muscle control, information processing, reaction, bal-
ance, coordination, and short-term memory. Stanton’s admis-
sions further support the magistrate’s verdict. He does not
dispute that after drinking from 6-9 p.m. that night he rated
himself a “four” on a 1-10 scale of intoxication, nor does he
dispute that he told the interviewing officer: “I feel buzzed. I
felt more of a buzz when you pulled me over.”
Viewing this body of evidence as a whole and in the light
most favorable to the government, and drawing all reasonable
inferences therefrom in the government’s favor, Stanton can-
not show that “no rational trier of fact could have found proof
of guilt beyond a reasonable doubt.” Garcia v. Carey, 395
F.3d 1099, 1102 (9th Cir. 2005) (quoting Jackson, 443 U.S.
at 324). His arguments to the contrary may be disposed of
quickly.
Stanton first contends the magistrate ignored numerous
contradictions in Koschmann’s testimony. However, to the
extent any inconsistency bore on Koschmann’s credibility it
UNITED STATES v. STANTON 11161
can reasonably be inferred that the magistrate chose to credit
the ranger’s testimony, a function squarely within its prov-
ince. Alvarez-Valenzuela, 231 F.3d at 1201-02. To the extent
any inconsistency militates against a finding that the govern-
ment carried its burden of proof, consideration of the evidence
in this case in the light most favorable to the government, as
discussed above, persuades us that a rational trier of fact
could have found proof of guilt beyond a reasonable doubt.
Jackson, 443 U.S. at 319.
Stanton also argues that the magistrate ignored evidence
that the FSTs were conducted on un-level ground, and there-
fore are not trustworthy. However, record evidence also indi-
cates that the tests were performed on a flat, dry, paved
surface. Under binding precedent we must presume, “even if
it does not affirmatively appear in the record,” that the magis-
trate resolved this conflict in favor of the prosecution, and we
must defer to that resolution. Jackson, 443 U.S. at 326.
Stanton did not object at trial to admitting the PBT results
to establish probable cause, but objected to their use for any
other purpose, and the magistrate admitted the results solely
for the limited purpose of establishing probable cause to
arrest. Even assuming that Stanton’s failure to object to
admission of the evidence for this limited purpose constitutes
forfeiture, rather than waiver, plain error analysis applies.
United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en
banc). Simply, Stanton has not shown how the magistrate
erred, much less plainly erred. Stanton’s related argument that
Koschmann did not have probable cause to arrest is similarly
without merit. In addition to the PBT tests indicating his BAC
was above the legal limit, Koschmann had observed Stanton’s
watery and bloodshot eyes, unsteady balance, slow speech,
and strong odor of alcohol. She had also observed him fail
two FSTs. Given the totality of the circumstances known to
Koschmann at the time, there was a “fair probability that [the
suspect] had committed a crime.” Peng v. Penghu, 335 F.3d
970, 976 (9th Cir. 2003) (alteration in original).
11162 UNITED STATES v. STANTON
Stanton also argues that the magistrate ignored evidence
indicating that he was sober. However, as noted, we must pre-
sume that the magistrate resolved any conflict between evi-
dence indicating sobriety and the substantial evidence
indicating impairment, and resolved that conflict in favor of
the prosecution. Moreover, we must defer to that resolution.
Wright, 505 U.S. at 296-97.
[8] Given the record evidence, and all reasonable infer-
ences arising therefrom, considered in the light most favor-
able to the government, a rational trier of fact could have
found beyond a reasonable doubt that Stanton was impaired
to the point that he could not safely operate his vehicle.
Accordingly, we reverse the district court’s ruling to the con-
trary. On remand the district court is ordered to reinstate the
magistrate’s guilty verdict.
REVERSED and REMANDED.