Unpublished Disposition, 900 F.2d 263 (9th Cir. 1990)

No. 87-1204.

United States Court of Appeals, Ninth Circuit.

Before CANBY and WILLIAM A. NORRIS, Circuit Judges, and STEPHEN V. WILSON^** , District Judge.

MEMORANDUM^* 

Antonio Nido-Martinez appeals his conviction, following a jury trial, for possessing, with intent to distribute, 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B) (vii). He argues that the district court erred by (1) overruling his objection to the admission of two post-arrest statements he made to DEA agents, and by (2) denying his motion for judgment of acquittal. We uphold both decisions of the district court and affirm the conviction.

* Nido-Martinez argues that the district court should have sustained his objection to the admission of two post-arrest statements. He contends that because he does not speak English and was intoxicated at the time DEA agents questioned him, he was not able to understand the Miranda warnings and could not have made an intelligent waiver of his rights.¹  At a suppression hearing, the district court found that Nido-Martinez was coherent at the time of questioning and knowingly waived his rights; consequently, the court overruled the objection. Having reviewed the record, we conclude that the district court's finding was not clear error, and therefore we uphold the decision to overrule. See United States v. Alderdyce, 787 F.2d 1365, 1368 (9th Cir. 1986) (district court's finding that defendant knowingly and voluntarily waived rights is reversible only if clearly erroneous).

Evidence adduced at the suppression hearing lends substantial support to the finding that Nido-Martinez knowingly waived his rights. DEA Officer Garcia, who speaks fluent Spanish, testified that he gave Nido-Martinez his Miranda warnings in Spanish (Nido-Martinez's native language) on two separate occasions, and that Nido-Martinez indicated he understood the warnings and was willing to answer questions.

Although Nido-Martinez claims to have been drinking heavily prior to arrest, both Garcia and his partner, Officer Coulson, testified that they detected no odor of alcohol or other indication of intoxication, and there were no cans or bottles inside the van. In addition, as the district judge observed at the hearing, Nido-Martinez had been able to purchase a van for cash earlier in the day, drive from Tucson to an Indian reservation in the desert in the middle of the night, and execute instructions for a rendezvous that he had received by telephone--conduct that is somewhat inconsistent with the claim of heavy intoxication. Further, the police arrested Nido-Martinez at 5:00 AM and DEA agents began questioning him at 11:00 AM; thus, he made his waiver fully six hours after his alleged drinking ceased. This circumstantial evidence, together with the direct testimony of the DEA officers, constitutes more than adequate support for the district court's finding that the waiver was knowing.

II

At the close of the prosecution's case, Nido-Martinez moved for judgment of acquittal pursuant to Fed. R. Crim. P. 29 on the ground that the government had presented insufficient evidence for a rational jury to find beyond a reasonable doubt that the quantity of marijuana involved was more than 100 kilograms. The district court denied the motion. Having reviewed the evidence "in the light most favorable to the Government," as we must, we conclude that there was "substantial relevant evidence from which the jury reasonably could have found [Nido-Martinez] guilty beyond a reasonable doubt." See United States v. Sarault, 840 F.2d 1479, 1487 (9th Cir. 1988). We therefore uphold the denial as proper.

The government presented testimony and photographic evidence that the van Nido-Martinez was driving when arrested contained fifteen large plastic bags, all similarly tied with rope; that the arresting officer smelled fresh marijuana when he approached the van and confirmed his suspicion by opening one of the bags; that the fifteen bags weighed a total of 383 pounds (well in excess of 100 kilograms); and that chemical analysis of core samples taken from five randomly selected bags verified that the substance was marijuana.

Nido-Martinez contends that because the government neither analyzed the contents of the other ten bags, nor weighed the five bags whose contents were analyzed, a jury could not have found beyond a reasonable doubt that he was in possession of the required quantity of marijuana. We disagree. From the testimony and photographs, the jury could have concluded quite reasonably that all fifteen bags contained the same thing. The similarity of the bags themselves, combined with the fact that they were seized at precisely the same place and time, permitted that inference.

AFFIRMED.