Unpublished Disposition, 902 F.2d 41 (9th Cir. 1990)

MEMORANDUM^* 

Appellants Alejandro Moreno-Ballesteros and Marco Antonio

Ballesteros ("the Ballesteros"), and Manuel Barrios Yanez

were charged with conspiracy to possess with intent to

distribute 440 pounds of marijuana, and with possession with

intent to distribute that same marijuana, in violation of 21

U.S.C. §§ 846, 841(a) (1) (1988). A jury found the

appellants guilty as charged. We consolidated the resulting

appeals and now affirm.

DISCUSSION

Barrios' single argument on appeal is that the district court erred in denying his motion to suppress statements he made after his arrest. Barrios contends that there was a conflict in the evidence as to whether he was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), in a manner he could understand. Specifically, Barrios suggests that he may not have understood the officer who advised him of his rights because the officer did not employ an interpreter, and/or because children's screams prevented him from understanding the information. Barrios urges that we decide the conflict in his favor, and rule that his statements must be suppressed because he did not waive his rights under Miranda.

The basis for overturning a district court's determination that a defendant knowingly and voluntarily waived his rights under Miranda is not premised on the existence of a conflict in the evidence. Rather, the trial court's determination of voluntariness is a factual inquiry reviewed for clear error. United States v. Whitworth, 856 F.2d 1268, 1278 (9th Cir. 1988), cert. denied, 109 S. Ct. 1541 (1989). "On appeal, evidence regarding the question of consent must be viewed in the light most favorable to the fact-finder's decision." United States v. Kaplan, No. 84-1260, slip op. 1245, 1253 (9th Cir. February 7, 1990).

The government presented evidence that Barrios was advised of his rights by a Spanish-speaking officer, in Spanish, and that he affirmatively indicated that he understood the information conveyed to him. We therefore see no basis for Barrios' argument that there was "a language problem," or that children's screams prevented Barrios from understanding the information. Based on this evidence, the district court's conclusion that Barrios knowingly and voluntarily waived his rights under Miranda was not clearly erroneous.

When Border Patrol Agent Hawkins testified as to the events surrounding the arrest of all the appellants, the district court cautioned the jury that any testimony regarding Barrios' post-arrest statements could not be considered in determining the guilt of the Ballesteros. Agent Hawkins then responded to a question regarding Barrios' statements by saying that

he [Barrios] said [the marijuana] had arrived at about 11 o'clock that morning when the other fellows had arrived, the other two that were arrested with him. He said that one of the--

At that point the district court interrupted agent Hawkins and ordered a recess. Barrios never took the stand. The Ballesteros moved for a mistrial under the rule expressed in Bruton v. United States, 391 U.S. 123, 136 (1968), that the confession of a nontestifying codefendant cannot be used to incriminate a defendant without violating the defendant's rights under the sixth amendment's confrontation clause, even if the trial court cautions the jury not to consider the confession in assessing the guilt of the defendant.

Although we generally review denials of mistrial motions under an abuse of discretion standard, United States v. Segal, 852 F.2d 1152, 1155 (9th Cir. 1988), an appeal based on an alleged Bruton error raises constitutional issues which we review de novo. United States v. Yarbrough, 852 F.2d 1522, 1536 (9th Cir.), cert. denied, 109 S. Ct. 171 (1988). If a Bruton error occurred, reversal is not required if the error is harmless beyond a reasonable doubt. United States v. Sutton, 794 F.2d 1415, 1428 (9th Cir. 1986).

We conclude that the facts of this case place it outside the parameters of the Bruton rule. In Richardson v. Marsh, 481 U.S. 200 (1987), the Supreme Court explained that the Bruton rule is a "narrow exception" to the general rule that jurors follow their instructions. Id. at 207. As such, the Bruton rule properly applies where the nontestifying codefendant's confession " 'expressly implicates' the defendant as his accomplice," id. at 208 (quoting Bruton, 391 U.S. at 135), because in that situation it is doubtful that "the jury can possibly be expected to forget [the confession] in assessing the defendant's guilt." Id. However, where the confession of the nontestifying codefendant does not incriminate the defendant on its face, "it may not always be simple for the members of a jury to obey the instruction that they disregard an incriminating inference, [but] there does not exist the overwhelming probability of their inability to do so that is the foundation of Bruton [ ]."

In this case agent Hawkins' testimony did not facially incriminate the Ballesteros. First, the testimony did not refer to the Ballesteros by name. Second, and more important, the testimony simply placed the Ballesteros at the scene of arrest; it did not provide any evidence that the Ballesteros were in any way involved in the crimes charged. To arrive at the conclusion that the Ballesteros were guilty as charged, the jury must have considered evidence other than the one relating to Barrios' statements.¹  Thus, their case falls outside the "narrow exception" identified in Bruton.

Since Bruton does not apply to this case, the Ballesteros can only prevail by showing that the jury failed to follow the district court's instruction not to consider Barrios' testimony in determining the Ballesteros' guilt. This the Ballesteros have not shown.

AFFIRMED.