Unpublished Disposition, 900 F.2d 263 (9th Cir. 1990)

MEMORANDUM^** 

Dora Pena was convicted by a federal jury of possession with intent to distribute 749 pounds of marijuana in violation of 21 U.S.C. § 841(a). She now argues on appeal that the district court erred by denying her motions to suppress both the marijuana and the hearsay statements of Border Patrol Agent Sandoval. We affirm.

With respect to Pena's first argument, we note that Border Patrol Agent Moore stopped the appellant's vehicle based on the following factors: (1) the Border Patrol had received anonymous tips that a tan mini-van with tinted windows and a blue mini-van had illegally entered the United States; (2) the blue mini-van was found to contain marijuana; (3) the most likely route for a vehicle transporting marijuana in that area would have been north to Tucson via the Interstate; (4) Pena was driving north on the Interstate towards Tucson in a tan mini-van with tinted windows; and (5) her auto was the only northbound vehicle on the Interstate which matched the above description. The totality of these circumstances shows that Moore's suspicion that Pena was involved in criminal activity was properly founded on specific, articulable facts and objective and reasonable inferences drawn therefrom. See United States v. Sokolow, 109 S. Ct. 1581, 1585 (1989); United States v. Hernandez-Alvarado, 891 F.2d 1414, 1418 (CA9 1989). The delay of some two hours between the transmission of the anonymous tips and the investigatory stop did not attenuate the reasonableness of Moore's well founded suspicion. See United States v. Avalos-Ochoa, 557 F.2d 1299, 1302 (CA9) (delay of more than three hours between transmission of electronic sensor alert and stop), cert. denied, 434 U.S. 974 (1977). There was no error on this point.

The appellant's second argument is that the district court should not have permitted Sandoval to testify, under the so-called "excited utterance" exception to the hearsay rule, about the two anonymous telephone tips he received. Although Sandoval's foundation testimony showed that the caller sounded excited and the events she was describing were both startling and occurring at the time of the calls, see FRE 803(2); United States v. McLennan, 563 F.2d 943, 948 (CA9 1977), cert. denied, 435 U.S. 969 (1978), any error which could be said to have resulted from the admission of this testimony was clearly harmless. The uncontroverted testimony was that the appellant drove a vehicle containing 749 pounds of marijuana and these drugs emitted a very strong odor. This was more than sufficient evidence for a reasonable jury to have found that Pena knowingly possessed the marijuana and intended to distribute it, see United States v. Walitwarangkul, 808 F.2d 1352, 1354 (CA9) (defendant's possession of large amount of drugs permits jury reasonably to infer that the possession was knowing), cert. denied, 481 U.S. 1023 (1987); United States v. Tebha, 770 F.2d 1454, 1457 (CA9 1985) (same with respect to intent to distribute), and did not affect the substantial rights of the appellant. FRE 103. Accordingly, we find no reversible error.

AFFIRMED.