Unpublished Disposition, 898 F.2d 157 (9th Cir. 1988)

MEMORANDUM^* 

Jose Martinez-Meza (Meza), appeals from his conviction for possession with intent to distribute approximately 587.5 pounds of marijuana in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B) (vii). Meza seeks reversal on the following grounds:

1) The district court erred in concluding that the arresting officer articulated a founded suspicion at the suppression hearing that would justify an investigatory stop.

2) The district court improperly relied upon judicial notice in concluding that the stop was based upon a founded suspicion.

3) The district court erred in admitting statements obtained in violation of the Miranda rule.

4) The prosecutor committed misconduct by arguing facts that were outside the proof at trial.

5) The district court erred in denying Meza's request that the jury be instructed to the lesser included offense of possession with intent to distribute less than 50 kilograms of marijuana.

Because we have concluded that each of these contentions lack merit, we affirm. We discuss each of these contentions and the facts pertinent thereto under separate headings.

* FOUNDED SUSPICION

Meza contends that the totality of the circumstances known to the arresting officer prior to the time that he activated his siren and emergency red lights did not constitute a founded suspicion that the person in the vehicle had committed or was about to commit a criminal act. We review the facts found by a trial judge in upholding an investigatory stop for clear error. United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988). A district court's legal conclusion that a founded suspicion existed is reviewed de novo. Id.

An officer may stop a moving vehicle if he is aware of articulable facts that lead to a "reasonable or founded suspicion that the person has been in, or is about to be engaged in criminal activity." United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir. 1985). Founded suspicion must exist before the officer turns on the vehicle's siren or emergency lights. United States v. Robert L., 874 F.2d 701, 703 (9th Cir. 1989).

Border Patrol Agent Conner Parrish testified that on January 11, 1988, he was assigned to narcotics surveillance duties at the intersection of Ruby Road and Summit Motorway, 20 miles east of Arrivaca, Arizona. Ruby Road is a dirt road that requires a four-wheel-drive vehicle because of the rough terrain and its slick surface in the winter due to mud and ice. Summit Motorway, which also requires a four-wheel-drive vehicle, is a lightly traveled road that is primarily used for recreational activities or during the hunting season. Summit Motorway Road leads directly to the Mexican border. The road ends at a fence separating the two nations. There is no crossing gate or port of entry at this location. To detect smuggling activities, sensor monitors have been installed on Summit Motorway Road near the border.

Agent Parrish testified that this area was a "load area, an area commonly used to pack marijuana in and out." Agent Parrish was aware that six days earlier Border Patrol agents had discovered that a drug smuggling transaction involving a pickup truck had taken place in this same area.

On the evening Meza was arrested, Agent Parrish parked his vehicle off the intersection of Summit Motorway and Ruby Road and turned his lights off. At approximately 7:45 p.m., Agent Parrish saw headlights and observed a pickup truck turn south onto Summit Motorway. A few minutes later, Agent Parrish received a radio broadcast that informed him that the sensor monitors on Summit Motorway had been activated.

Approximately 45 minutes later, the sensor monitors were reactivated. Agent Parrish then observed a pickup truck traveling northbound on Summit Motorway Road. The pickup truck turned onto Ruby Road and proceeded west.

The pickup truck was traveling at approximately five miles per hour. Agent Parrish pulled in behind the pickup truck before turning on his headlights. When Agent Parrish turned on his headlights, the pickup truck accelerated rapidly, causing the rear tires to spin and kick up dust and gravel. Agent Parrish then turned on his siren and red emergency lights and gave pursuit. He pursued Meza for approximately 20 miles. The chase ended when Meza lost control of his vehicle causing it to flip over on its side. The pickup truck contained 22 bales of marijuana. The district court concluded that Agent Parrish had sufficient information to justify an investigatory stop. We agree.

Agent Parrish was aware that the infrequently traveled road used by Meza had been recently used by persons who smuggled contraband across the Mexican border. Six days earlier, a pickup truck had been used to load marijuana at the same location. Because the sensors were activated as Meza approached the border fence and reactivated 45 minutes later upon his return, we are persuaded that Agent Parrish's inference that the driver of the pickup truck had loaded his vehicle at the southern terminus of Summit Motorway with narcotics smuggled across the border was reasonable. Meza's rapid acceleration when Parrish turned on his headlights supported this inference. We are persuaded by these facts, after an independent examination of the record, that it was reasonable for Agent Parrish to suspect that the driver of the pickup truck had been engaged in criminal activity. The district court did not err in denying the motion to suppress.II

JUDICIAL NOTICE

Meza asserts that the district court erred in relying upon judicial notice in determining whether there was founded suspicion to justify an investigatory stop. In stating its reasons for denying the motion to suppress the evidence seized following the investigatory stop, the district court commented as follows:

I think the agent had sufficient information to which he could legally made [sic] an investigatory stop, based on the fact that this is a dope smuggling area. And I think the Court can take judicial notice that I, by myself, not counting the other judges, have had cases including drug smuggling in that particular area, and I think there was enough information from which Officer Parrish could just stop the defendant and make an investigatory stop to ask him what he was doing there, citizenship, and so forth.

No objection was made in the district court that taking judicial notice that "this is a dope smuggling area" was improper. Rule 103(a) (1) of the Federal Rules of Evidence requires that a party asserting error in the admission of evidence make a timely objection. In the absence of a proper objection, we only review for "plain errors affecting substantial rights." Fed.R.Evid. 103(d). " 'A plain error is a highly prejudicial error affecting substantial rights.' " United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986) (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 (1979)).

As discussed above, the record shows that Agent Parrish was aware of articulable facts demonstrating a reasonable suspicion that Meza had participated in the smuggling of narcotics across the Mexican border. Thus, the district court's purported reliance on judicial notice did not prejudice Meza's substantial rights.

III

ALLEGED MIRANDA VIOLATION

Meza asserts that the government failed to meet its burden of demonstrating that he knowingly and voluntarily waived his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436 (1966). Meza appears to argue that, as a matter of law, a confession must be suppressed if the evidence shows that (1) the defendant was rendered semiconscious and received no medical attention the day before he waived his constitutional rights, (2) he was read his constitutional rights in Spanish by an officer who was not fluent in Spanish, and (3) he was questioned by a second officer one hour later who did not advise him of his rights. Meza has not cited any authority that would compel an automatic reversal under these circumstances. Whether a defendant knowingly and voluntarily waived his constitutional rights prior to a police interrogation is a mixed question of law and fact which we review de novo. United States v. Wolf, 813 F.2d 970, 974 (9th Cir. 1987).

The record shows that Meza was advised of his constitutional rights in Spanish at approximately 8:00 p.m. on the night of his arrest. The next morning, he was again advised of his rights in Spanish. Meza told the officer he understood his rights. Agent Porter testified that Meza was "wide awake and coherent and he obviously understood" the admonition. Furthermore, Meza signed an advisement of rights form in two places to show that he understood his rights and that he was willing to waive them.

Based on our independent review of the record, we conclude that Meza knowingly and voluntarily waived his Miranda rights.

IV

ALLEGED PROSECUTORIAL MISCONDUCT

Meza also claims that the prosecutor argued facts to the jury that were not part of the proof presented at trial. The prosecutor told the jury that

Drug smugglers come in all sizes and all shapes. It takes all kinds of people, a large number to effectively smuggle drugs in the United States. You have heard testimony of Agent Long and you will recall that he said in his training and experience the owners of the marijuana do not themselves ... do not themselves bring the marijuana into the United States. Others bring it in for them.

Meza's objection that this statement was not supported by the testimony at trial was overruled. Before this court, the government has conceded that the statement "owners of the marijuana do not themselves bring the marijuana into the United States" was outside the record. The evidence of guilt in this matter was overwhelming. Meza was apprehended near the Mexican border after a 20-mile chase in a pickup truck loaded with 22 bales containing marijuana. Under such circumstances, the error was harmless. See Colley v. Sumner, 784 F.2d 984, 991 (9th Cir.) (prosecutorial misconduct in closing argument is harmless where the comment is brief and the evidence of guilt was overwhelming), cert. denied, 479 U.S. 839 (1986).

V

NECESSITY FOR LESSER INCLUDED OFFENSE INSTRUCTION

Meza's final contention is that reversal is warranted because the district court refused a lesser included offense instruction. At trial, photographs of the pickup truck showing the 22 bales of marijuana were introduced into evidence. A DEA chemist testified that core samples taken from each of the 22 bales contained marijuana. The total weight of the bales found in the back of the pickup truck was 587.5 pounds.

Meza was charged with possession with intent to distribute 100 kilograms (220 pounds) or more of marijuana. He maintains that since the DEA chemist tested only 26.1 grams of marijuana, and the 22 bales were not brought into court for viewing by the jury, the government failed to meet its burden of proving beyond a reasonable doubt that he possessed 100 kilograms or more of marijuana with the intent to distribute it. He claims that under these circumstances, the district court was required to give an instruction on the crime of possession of less than 50 kilograms of marijuana with the intent to distribute it.

The thrust of Meza's argument appears to be that proof of the quantity of marijuana possessed must be proved by direct evidence. No authority is cited for this proposition. Indirect evidence was presented to the jury through photographs and the testimony of the officers that 22 bales of marijuana weighing far more than 100 kilograms were found in the back of the pickup truck. The evidence is uncontradicted that core samples taken from each bale contained marijuana.

Contrary to Meza's argument, the law does not distinguish between direct and circumstantial evidence as proof of the existence of a fact at issue. The "basic rule which we must follow is that circumstantial and testimonial evidence are indistinguishable insofar as the jury's fact finding function is concerned and that circumstantial evidence can be used to prove any fact, including facts from which another fact is to be inferred." United States v. Brady, 579 F.2d 1121, 1127 (9th Cir. 1978), cert. denied, 439 U.S. 1074 (1979); see United States v. Osgood, 794 F.2d 1087, 1095 (5th Cir.) (approving identification of a controlled substance through the use of circumstantial evidence), cert. denied, 479 U.S. 994 (1986); United States v. Harrell, 737 F.2d 971, 978 (11th Cir. 1984) (same), cert. denied, 469 U.S. 1164, cert. denied, 470 U.S. 1027 (1985). The indirect evidence presented to the jury was sufficient to permit it to infer that the 22 bales contained 100 kilograms or more of marijuana.

The district court must give a lesser included offense instruction if the evidence would permit a rational jury to find him guilty of the lesser offense and acquit him of the charged crime. Hopper v. Evans, 456 U.S. 605, 612 (1982). " [D]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction." Id. at 611 (emphasis in original). We conclude from our review of the entire record that a lesser included offense instruction was not warranted and that the evidence was sufficient to persuade a rational jury beyond a reasonable doubt that Meza possessed 100 kilograms or more of marijuana with the intent to distribute it.

The judgment is AFFIRMED.