Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 930 F.2d 30 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Gustavo Moreno MENDOZA, Defendant-Appellant.

No. 89-30278.

United States Court of Appeals, Ninth Circuit.

Argued and Submission Deferred Sept. 14, 1990.Resubmitted March 8, 1991.Decided March 27, 1991.

Before CANBY, KOZINSKI and TROTT, Circuit Judges.


MEMORANDUM* 

Gustavo Moreno Mendoza appeals his conviction and sentence for conspiracy to manufacture marijuana in violation of 21 U.S.C. §§ 841(a) (1), 841(b) (5) and 846, and for the manufacture of 785 marijuana plants in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. He claims (1) he was unlawfully detained by the arresting officers and not adequately advised of his rights, (2) the district court failed to accurately define "reasonable doubt" for the jury, and (3) the district court calculated his sentence questions of law and fact we review de novo. United States v. Alvarez, 899 F.2d 833, 836 (9th Cir. 1990), cert. denied, --- U.S. ----, 111 S. Ct. 671 (1991).

* The Stop

Mendoza claims the "anonymous and nondetailed report ... of a 'suspicious vehicle' with out-of-state plates" was insufficient to arouse suspicion of a "possible marijuana cultivation." We disagree. The officers were justified in stopping Mendoza because they had a "reasonable, articulable suspicion" that a crime was being committed. See Terry v. Ohio, 392 U.S. 1, 27 (1968).

In order to justify an investigatory stop, there must be some objective indication--an "articulable suspicion"--that the person stopped is, or is about to be, engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 417 (1981); Alvarez, 899 F.2d at 836. The stop is evaluated by looking at the "totality of the circumstances" and determining, based on the "whole picture," whether the detaining officers had a particularized objective basis for suspecting the particular person of criminal activity. Alvarez, 899 F.2d at 836.

We have held that an anonymous tip, corroborated by police observations, may provide police officers with "reasonable suspicion warranting an investigatory stop." Alvarez, 899 F.2d at 837; see also Alabama v. White, --- U.S. ----, 110 S. Ct. 2412 (1990). In the present case, officers were informed that a car with out-of-state plates was parked by the side of the road in a remote area of the woods, known for marijuana growing, with a bag of fertilizer on the ground in front of it. Further, the tip was "corroborated in every significant detail by [the police officer's] pre-stop surveillance." Alvarez, 899 F.2d at 837. As a result, we find that the officers' investigation of the caller's tip gave rise to an "articulable suspicion" that a crime was being committed, and the officers were therefore justified in stopping Mendoza.

B

Reasonableness of the Detention

Mendoza contends the statements he made as a result of the detention are inadmissible because the scope and length of the detention were unreasonable under the circumstances. In response, the Government claims the information was voluntarily given, non-coerced, and clearly justified further investigation. We agree with the Government.

It is well settled that a search must be "strictly tied to and justified by" the circumstances which rendered its initiation permissible. Terry, 392 U.S. at 18 (citing Warden v. Hayden, 387 U.S. 294, 310 (1967)). Moreover, a stop which is reasonable at its inception may violate the Fourth Amendment by virtue of its "intolerable intensity and scope," Terry, 392 U.S. at 18, and questioning that is consensual at the outset can escalate to the level of "detention" where a suspect finds himself "in a highly detentive environment...." United States v. Moreno, 742 F.2d 532, 535 (9th Cir. 1984); see also Royer, 460 U.S. at 496-98. Any statements given during such a period of "illegal detention" are inadmissible even though voluntarily given, if they are the product of the detention and not the result of an independent act of free will. Royer, 460 U.S. at 501; Dunaway v. New York, 442 U.S. 200, 218-219 (1979).

We find that the stop of Mendoza and his companions never escalated to the level of an "illegal detention." The officers' conduct was never "more intrusive than necessary to effectuate an investigative detention ... authorized by the Terry line of cases." Royer, 460 U.S. at 502-04. Rocendo's decision to show the officers the marijuana site was voluntary and not coerced. In addition, once the officers had reason to believe the suspects were involved in marijuana growing, they were justified in extending the investigative stop long enough to verify or dispel their suspicions. United States v. Woods, 720 F.2d 1022, 1026 (9th Cir. 1983). We agree with the district court's finding that, at the time Rocendo informed the officers of the marijuana site, their suspicion ripened into "full-blown probable cause."

III

Mendoza's Statement of July 13, 1988

Mendoza claims his statement while in jail was not "knowing and voluntary" because he did not understand his right to refuse to talk or to sign documents. To support this claim, Mendoza cites his poor English and his belief that, if he signed the written statement, he would be released from jail.

The adequacy of a Miranda warning is a legal question we review de novo, United States v. Bland, 908 F.2d 471, 472 (9th Cir. 1990), although "the factual findings underlying the adequacy challenge, such as what a defendant was told, are subject to clearly erroneous review." Id. (internal quotations omitted). A district court's determination that a defendant knowingly, intelligently, and voluntarily waived his Miranda rights is reversible only if it is clearly erroneous. United States v. Bernard S., 795 F.2d 749, 751 (9th Cir. 1986).

Whether there has been a valid waiver depends on the "totality of the circumstances," including the background, experience, and conduct of the defendant. Bernard S., 795 F.2d at 751. Any language difficulties encountered by the defendant should be considered. Id.; United States v. Heredia-Fernandez, 756 F.2d 1412, 1415 (9th Cir.), cert. denied, 474 U.S. 836 (1985). When language barriers are encountered, we have generally found waivers to be knowing and intelligent where "evidence would support a determination that the [officer and the defendant] understood each other." United States v. Gonzales, 749 F.2d 1329, 1336 (9th Cir. 1984); see also United States v. Martinez, 588 F.2d 1227 (9th Cir. 1978).

If, as here, a defendant is read his rights orally in both Spanish and English, appears to understand them, reads and signs a waiver card explaining his rights, and then continues to converse with officers, the waiver is valid. Gonzales, 749 F.2d at 1336; see also Heredia-Fernandez, 756 F.2d at 1412. Here, the district court weighed the testimony and resolved the credibility question in favor of the interviewing officer and the interpreter. Mendoza was advised of his rights in Spanish through an interpreter. He signed a written waiver form, as well as a written statement, only after each was read to him in Spanish and he indicated that he understood. We conclude, therefore, that it was not clearly erroneous for the district court to find Mendoza's waiver was knowing, intelligent and voluntary.

IV

The Reasonable Doubt Instruction

The district court refused to give Mendoza's or the Government's proposed reasonable doubt instruction, and instead formulated an independent definition. Mendoza now claims the court's instruction was inadequate. We disagree.

We review de novo whether a jury instruction was an accurate statement of the law. United States v. Terry, 911 F.2d 272, 279 (9th Cir. 1990). We must determine (1) whether, viewing the instructions as a whole, the district court gave an adequate instruction on each element of the case to ensure the jury fully understood the issues, and (2) whether the instruction was misleading or stated the law incorrectly to the prejudice of the objecting party. Id.

The district court has broad discretion in formulating the instructions, however, and neither party may demand specific language. United States v. Wellington, 754 F.2d 1457, 1463 (9th Cir.), cert. denied, 474 U.S. 1032 (1985). Challenges to the particular formulation adopted by the court are reviewed for an abuse of discretion. Id.

The district court used the same language we upheld in United States v. Bustillo, 789 F.2d 1364, 1368 (9th Cir. 1986) ("firmly convinced" of guilt). See also United States v. Nolasco, No. 88-1156, slip op. 1815, 1820 (9th Cir. Feb. 15, 1991) (en banc) ("firmly convinced" of guilt language is proper). Taken as a whole, the district court's instructions did not mislead the jury on the proper standard or state the law incorrectly to the prejudice of the defendant.

V

Mendoza's Sentence

Mendoza challenges the district court's calculation of his sentence. We review de novo the legality of a criminal sentence, as well as the district court's construction and interpretation of the Sentencing Guidelines. United States v. Litteral, 910 F.2d 547, 553 (9th Cir. 1990). The district court's factual findings are reviewed for clear error. United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir. 1989).

* Mendoza's Base Level Offense

Mendoza first asserts that the district court erroneously calculated his base level offense using the total number of plants, without reducing that number to account for "seedlings." This claim is without merit.

Sentencing is governed by the substantive offense, 21 U.S.C. § 841(a), and the United States Sentencing Commission Guidelines (the "Guidelines"). Section 841(a) (1) is governed by 2D1.1 of the Guidelines, which refers in subsection (a) (3) to the Drug Quantity Table for determination of the base offense level. For each offense level, the table lists two measurements for marijuana--weight and number of plants. The table does not expressly indicate which measure should be used, but the Drug Equivalency Table lists one marijuana plant as equal to 100 grams of marijuana.

In the present case, seven hundred eighty-five marijuana plants were found at the grow site. They were split "fairly close to fifty-fifty" between those already in the ground and those in styrofoam cups not yet planted. Over Mendoza's objection, the district court calculated his base level offense based on the total number of plants, without regard to their size.

Relying on United States v. Graham, 710 F. Supp. 1290 (N.D. Cal. 1989), aff'd United States v. Corley, 909 F.2d 359 (9th Cir. 1990), Mendoza asserts the district court should have excluded at least half the plants as "seedlings." To do otherwise, he argues, would "effect inconsistent results" and "promote disparity in sentencing." In response, the Government asserts the clear policy of the Guidelines is to count all plants, unless a greater sentence would arise from using the projected weight of the plants. See U.S.S.G. Sec. 2D1.1 at 2.45.

We agree with the Government for two reasons. First, the district court correctly read the Graham decision to conclude that, where live plants are found, the Guidelines contemplate using solely the number of plants as the appropriate measure. See Graham, 710 F. Supp. at 1291. If this were not the case, a defendant's sentence would depend on the stage of the "grow cycle" during which he was arrested. Weight is irrelevant at this stage because the actual amount of usable marijuana, had the plant been allowed to grow, is unknown. Id.

Second, the district court did not exceed its discretion in finding the total number of plants should be used to determine the sentence. In Graham, the district court accepted the probation officer's decision to subtract 800 seedlings from the total number of plants. On appeal, Judge Schroeder noted that the Guidelines' definition of "plant" is not limited to mature and healthy organisms. Id. at 361; see also United States v. Carlisle, 907 F.2d 94, 96 (9th Cir. 1990) ("cuttings" with sufficient root formation to survive are "plants").

Most important, although the Graham court's determination was upheld, the court noted: "There is no basis for [defendant's] position that only plants taller than one foot be counted. Indeed, the district court clearly seems to have given defendants the benefit of the doubt by excluding seedlings from the sentencing computation." Corley, 909 F.2d at 362 (emphasis added). Accordingly, it is within the district court's discretion to exclude seedlings or not, and it was not clear error for the district court to refuse to discount for seedlings.

B

Upward Adjustment for Obstruction of Justice

Mendoza also appeals the district court's upward adjustment of his offense level under Guideline Section 3C1.1, which directs the sentencing judge to increase a defendant's offense level by two points " [i]f the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense." The district court's determination that Mendoza obstructed justice is a factual finding, which this court reviews for clear error. United States v. Barbosa, 906 F.2d 1366, 1369 (9th Cir.), cert. denied, --- U.S. ----, 111 S. Ct. 394 (1990).

The district court found Mendoza obstructed justice because he gave materially false testimony at trial. The court found "there was a distinct difference in the various versions [of the facts] given by the defendant.... The version [given to the police officers] and the version at trial are substantially different." Mendoza attacks the application of section 3C1.1 on two grounds: (1) There was no "willful intent" by Mendoza to obstruct justice, and (2) the sentencing judge failed to evaluate Mendoza's testimony and statements "in the light most favorable to the defendant" pursuant to Application Notes (1) and (2). We reject these arguments.

As an example of "conduct which may provide a basis for applying this adjustment," the Application Notes include "testifying untruthfully or suborning untruthful testimony concerning a material fact." U.S.S.G. Sec. 3C1.1, Application Note 1(c). According to 18 U.S.C. § 3742(e), a court reviewing the imposition of a sentence under the Guidelines should give "due regard to the opportunity of the district court to judge the credibility of the witnesses" and "due deference to the district court's application of the Guidelines to the facts." See Barbosa, 906 F.2d at 1370.

Although the Application Notes to section 3C1.1 require a suspect's testimony and statements to be evaluated in "a light most favorable to the defendant," we have acknowledged that the trial court is not required to believe the defendant, but merely to "resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction." Id. In short, the district court may exercise its discretion in determining the truthfulness of the defendant's trial testimony.

Further, it is not necessary for the district court to present "elaborate enumerations of which of [the defendant's] false statements induced its decision to apply the two-level upward adjustment.... Neither this court nor the Supreme Court has ever imposed a requirement that a district court make specific findings as to those portions of a defendant's testimony it believes to have been falsified." Id. Indeed, many cases have held that an "obstruction of justice" enhancement is proper if the district court deems testimony to be untruthful, even though there is no formal or specific charge of perjury.2 

For the above reasons, we hold the district court was not clearly erroneous in finding that Mendoza obstructed justice by lying at trial. We therefore affirm the two-point increase.

C

Downward Adjustment for "Acceptance of Responsibility"

Mendoza asserts the district court erred in denying him a downward adjustment for acceptance of responsibility under section 3E1.1 of the Guidelines. " [W]hether or not a defendant has accepted responsibility for his crime is a factual issue, subject to the clearly erroneous standard of review." United States v. Cooper, 912 F.2d 344, 345 (9th Cir. 1990). In addition, the Commentary to section 3E1.1 emphasizes:

[T]he sentencing judge is in a unique position to evaluate the defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference and should not be disturbed on review unless it is without foundation.

Application Note 5.

The district court found Mendoza had failed to acknowledge the true extent of his participation in the offense. At the outset, Mendoza accepted responsibility in the written statement. At trial, however, he denied the extent of his involvement, and the accuracy of his written statement. Now, he attempts to understate his role in the offense. These facts support the district court's finding that Mendoza failed to accept responsibility. See United States v. Sanchez, 908 F.2d 1443, 1451 (9th Cir. 1990). We therefore affirm the court's denial of the downward adjustment.

D

Downward Adjustment for Minor Role in the Offense

Mendoza also asserts the district court erred in denying him a downward adjustment for his minor role in the offense under section 3B1.2 of the Guidelines. Whether a defendant is a "minor" participant in criminal activity is a factual determination we review for clear error. Sanchez, 908 F.2d at 1448. The defendant must prove his status as a minor participant by a preponderance of the evidence. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990).

A "minor participant" is defined in the Application Notes to section 3B1.2(b) as "any participant who is less culpable than most other participants, but whose role could not be described as minimal." The Guidelines do not contemplate automatic conveyance of "minor participant" status each time a defendant is less culpable than his codefendants, United States v. Rexford, 903 F.2d 1280, 1282 (9th Cir. 1990), and the downward adjustments for minor participation in the criminal activity are intended to be used infrequently. United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989) (per curiam).

There is nothing in the record contradicting the district court's conclusion that Mendoza was not a minor participant in the offense. Further, the district court's "simple statement that the defendant was 'not a minor participant' will suffice as a factual finding." Sanchez-Lopez, 879 F.2d at 557.3  As a result, the district court's finding that Mendoza was not a minor participant was not clearly erroneous.

For the foregoing reasons, the district court's judgment is

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.Rule 36-3

 2

See, e.g., United States v. Grayson, 438 U.S. 41, 52 (1978); Barbosa, 906 F.2d at 1369; United States v. Belgard, 894 F.2d 1092, 1099 (9th Cir.), cert. denied, --- U.S. ----, 111 S. Ct. 164 (1990)

 3

See also United States v. Howard, 894 F.2d 1085, 1088 (9th Cir. 1990); United States v. Rigby, 896 F.2d 392, 394-395 (9th Cir. 1990)