FILED
NOT FOR PUBLICATION DEC 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10566
Plaintiff - Appellee, D.C. No. 4:09-cr-00829-RCC-
JJM-3
v.
HIRALDO NEYRA-AGRAMONTE, MEMORANDUM *
AKA Agramonte Hiraldo Neyra,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-10012
Plaintiff - Appellee, D.C. No. 4:09-cr-00829-RCC-
JJM-1
v.
MICHEL MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted December 5, 2011
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: BEA and TROTT, Circuit Judges, and PALLMEYER, District Judge.**
Michel Martinez (“Martinez”) and Hiraldo Neyra-Agramonte (“Neyra-
Agramonte”) appeal from their convictions of conspiracy to possess with intent to
distribute cocaine, arising from an episode in which Martinez arranged the purchase
of five kilograms of cocaine for $90,000 from an undercover agent, and Neyra-
Agramonte arrived at the scene with a tractor trailer equipped with a custom-built
secret compartment.
Martinez argues that the district court erred when it: (1) found his consent to
search was voluntary; (2) found his waiver of his Miranda rights voluntary; and (3)
rejected or altered two of his proposed jury instructions. None of the arguments has
merit. The district court did not err in determining that Martinez voluntarily
consented to the search in light of the “totality of the circumstances,” United States
v. Drayton, 536 U.S. 194, 207 (2002), including the unarmed agents’ presentation of
a consent form, which Martinez read and signed. The district court’s credibility
finding defeats Martinez’s argument that he did not voluntarily waive his Miranda
** The Honorable Rebecca R. Pallmeyer, United States District Judge for
the Northern District of Illinois, sitting by designation.
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rights. In any case, introduction of the evidence recovered in the search, and of
Martinez’s post-arrest “statement” (a nod of the head) was harmless.
Finally, we are not persuaded that the district court erred in failing to adopt
portions of Martinez’s proposed jury instructions. Viewed as a whole, the instructions
accurately described the elements of the charged offenses and explained that the
government was required to prove there was a “meeting of the minds” to complete an
illegal transaction. The court did not explicitly remind the jury that a finding of
conspiracy requires more than evidence of an attempt to arrange or negotiate a
purchase. But the instructions did explain that the jury had to find an agreement to
commit the crime charged in the indictment–possession with intent to distribute
cocaine. The “precise formulation” of those instructions did not amount to an abuse
of discretion. United States v. Knapp, 120 F.3d 928, 930 (9th Cir. 1997). Nor has
Martinez shown he suffered any undue prejudice.
Neyra-Agramonte’s sufficiency-of-the-evidence challenge fails, as well.
Viewed in the light most favorable to the verdict, the evidence amply establishes a
conspiracy and Neyra-Agramonte’s participation in it: Appellants and undercover
agents went to a prearranged location and counted $90,000 in cash furnished by
Martinez. After a call from Martinez, Neyra-Agramonte promptly arrived driving a
tractor trailer equipped for the transport of contraband and demonstrated the workings
3
of the secret compartment. His conduct shows more than the “slight connection” to
the conspiracy required to support his conviction. See United States v. Herrera-
Gonzalez, 263 F.3d 1092, 1095 (9th Cir. 2001) (citations omitted).
Neyra-Agramonte also challenges the district court’s amendment of the
indictment on the second day of trial, but the amendment was not plain error and
merits no further discussion.
The convictions are AFFIRMED.
4