Unpublished Disposition, 937 F.2d 614 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Juan Antonio JIMENEZ-VALDEZ, Defendant-Appellant.

No. 90-10113.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 11, 1991.Decided July 5, 1991.

Before FLETCHER, WILLIAM A. NORRIS and TROTT, Circuit Judges.


MEMORANDUM* 

Juan Antonio Jimenez-Valdez appeals his jury convictions for importation of heroin and possession with intent to distribute heroin. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

FACTS

On September 11, 1989, Jimenez-Valdez left Mexico and entered the United States at the Nogales Port of Entry in Nogales, Arizona. United States Customs officials stopped the automobile in which he was a passenger and asked him and the driver whether they were bringing anything into the United States. Both Jimenez-Valdez and the driver said they were not, and they were directed to a secondary inspection area. There Customs officials searched them, discovering a packet of approximately 138 grams of heroin in Jimenez-Valdez's left boot.

Jimenez-Valdez was arrested and taken to an interview room. Shortly thereafter, Special Agent Robbins arrived to conduct the investigation. As Robbins speaks almost no Spanish, and Jimenez-Valdez speaks only a few words of English, Robbins obtained the assistance of Customs Inspector Felix, who translated Robbins's questions into Spanish and Jimenez-Valdez's responses into English. Robbins first asked Felix to advise Jimenez-Valdez of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Felix read the Miranda advisement in Spanish from a pre-printed card frequently employed by Customs. According to Jimenez-Valdez, Felix supplemented the card's text by telling him that if he cooperated with them without having a lawyer present, it would lead to a sentence significantly shorter than the ten or twenty years he could expect to get otherwise. After receiving the Miranda advisement, Jimenez-Valdez agreed to answer questions and acceded to their request that he undergo a strip search.

With Felix translating, Robbins repeatedly asked Jimenez-Valdez whether he knew what was in the packet found in his boot. Jimenez-Valdez responded numerous times that he did not. According to Robbins, Jimenez-Valdez also stated at least once that he thought the substance was marijuana. Jimenez-Valdez also was questioned repeatedly about the identity of the driver of the automobile, and he consistently answered that he did not know him. According to Jimenez-Valdez, Felix told him that if he revealed the identity of the driver, he would get a shorter sentence and would not have to go to jail alone. At no point during the interrogation did the agents threaten Jimenez-Valdez, use any force against him, or display a weapon; nor did Jimenez-Valdez request an attorney or ask that the questioning cease.

On October 4, 1989, the government filed a two-count indictment charging Jimenez-Valdez with importation of 138.4 grams of heroin, in violation of 21 U.S.C. §§ 952(a), 960(a) (1), & 960(b) (2) (A), and possession with intent to distribute the same heroin, in violation of 21 U.S.C. §§ 841(a) (1) & 841(b) (1) (B) (i). Prior to trial, Jimenez-Valdez moved to suppress the statements he made during his interrogation by Robbins and Felix on the grounds that the Miranda rights advisement was inadequate, that he did not voluntarily, knowingly, and intelligently waive his Miranda rights, and that he did not make the statements voluntarily. Following a suppression hearing at which Jimenez-Valdez and Robbins testified, but Felix did not, the district court denied the motion to suppress, concluding:

I think the Miranda warnings are sufficient. I think the background of this agent, Agent Robbins, with Agent Felix and his Spanish-speaking capabilities was established; and I think the voluntariness element of the statement was established.

After a brief trial and three and a half hours of deliberation, the jury found Jimenez-Valdez guilty on both counts. He was sentenced to 60 months in prison on each count, to run concurrently with each other, plus five years of supervised release. Jimenez-Valdez filed a timely notice of appeal, challenging his conviction, but not his sentence.

DISCUSSION

Jimenez-Valdez raises three arguments on appeal. First, he contends that the district court erred in admitting the statements he made during the interrogation by Customs agents. Second, he argues that the district court abused its discretion in admitting expert testimony concerning the "cutting" of heroin and the value of pure and "cut" heroin. Finally, he claims that the prosecutor engaged in misconduct by making improper remarks during closing argument.

Jimenez-Valdez objects to the admission of the statements he made to the Customs agents, particularly the statement that he thought the substance in his boot was marijuana. He argues, first, that the government did not adequately advise him of his fifth amendment right against self-incrimination and his sixth amendment right to counsel, as required by Miranda v. Arizona, 384 U.S. 436 (1966). Second, he contends that he did not voluntarily, knowingly, and intelligently waive his Miranda rights before making his statements. Finally, he claims that he did not make the statements voluntarily.

We review de novo the district court's determination that the Miranda advisement was adequate. United States v. Bland, 908 F.2d 471, 472 (9th Cir. 1990). However, we review the factual findings underlying the adequacy challenge--i.e., what the defendant was told--for clear error. Id.

Jimenez-Valdez argues that Felix, the agent who actually gave the Miranda advisement, rendered it inadequate by telling him that things would go better for him if he talked to the agents without demanding a lawyer. He argues that the government failed to sustain its burden of proving that the Miranda advisement was adequate because the only people who testified at the suppression hearing were Robbins and Jimenez-Valdez. Since Robbins does not speak Spanish, he could not verify that Felix gave Jimenez-Valdez a straight rendition of the Miranda advisement.

Although Felix did not testify at the suppression hearing, he did testify at trial. "Testimony at trial may be used to sustain the denial of a motion to suppress evidence, even if such testimony was not given at the suppression hearing." United States v. Sanford, 673 F.2d 1070, 1072 (9th Cir. 1982). At trial, Felix testified that he read the Miranda advisement, in Spanish, straight from a pre-printed card. [Supp. ER at 47] Felix denied making any promises or offers to Jimenez-Valdez about what would happen if he talked to them. [Id. at 54] Felix also testified that he said nothing to Jimenez-Valdez about any sort of punishment he could face for his crime. [Id. at 57] Finally, on cross-examination, Felix denied telling Jimenez-Valdez that his sentence would be reduced if he cooperated. [Id. at 61] Even if the government failed to carry its burden at the suppression hearing because of its exclusive reliance on Robbins's testimony, Felix's subsequent testimony fully supports the district court's finding that Jimenez-Valdez received a straightforward and adequate Miranda advisement.

To be valid, a waiver of Miranda rights must be voluntary, knowing, and intelligent. Moran v. Burbine, 475 U.S. 412, 421 (1986). The government bears the heavy burden of overcoming the presumption against waiver. North Carolina v. Butler, 441 U.S. 369, 373 (1979). We review de novo the voluntariness of a waiver of Miranda rights. Terrovona v. Kincheloe, 852 F.2d 424, 428 (9th Cir. 1988). We review the district court's findings about whether Jimenez-Valdez's waiver was knowing and intelligent for clear error. Derrick v. Peterson, 924 F.2d 813, 823 (9th Cir. 1990); United States v. Doe, 819 F.2d 206, 209 (9th Cir. 1985).

It is undisputed that Jimenez-Valdez agreed to answer questions without a lawyer. However, Jimenez-Valdez contends that the government has failed to prove that his Miranda waiver was voluntary for essentially the same reasons noted above: Robbins's testimony did not sustain the government's burden of proof because he could not understand the conversation between Jimenez-Valdez and Felix, and Felix's attempts to convince Jimenez-Valdez that things would go better for him if he talked without a lawyer rendered his waiver involuntary. The government emphasizes that the agents did not threaten or use force against Jimenez-Valdez or otherwise intimidate him at any point during the interrogation.

Although Robbins's testimony at the suppression hearing may not have sufficed to demonstrate that Jimenez-Valdez waived his Miranda rights voluntarily, we again look to Felix's trial testimony in considering this issue. See Sanford, 673 F.2d at 1072. According to that testimony, Felix asked Jimenez-Valdez whether he understood his rights and whether he would waive them, and Jimenez-Valdez answered that he did and would answer questions. [Supp. ER at 49] Furthermore, as noted above, Felix denied making any threats, promises, or offers to Jimenez-Valdez to induce him to waive his rights and speak to them without a lawyer. Based on our independent review of the record, considering Felix's testimony together with the notable absence of any threatening conduct or use of force by the agents, we agree with the district court that the waiver was voluntary.

In considering whether Jimenez-Valdez's waiver was knowing and intelligent, we focus on whether his mind was "overborne" at the time of the alleged waiver. Derrick, 924 F.2d at 823. Jimenez-Valdez contends that his mind was overborne, and his cooperation induced, by Felix's promise that his sentence would be much lighter if he talked to them without a lawyer and revealed the name of the driver. However, Felix denied making such a promise, and we cannot say that the district court's refusal to believe Jimenez-Valdez's version of the interrogation was clearly erroneous. We conclude that Jimenez-Valdez made a voluntary, knowing, and intelligent decision to waive his Miranda rights.

Finally, Jimenez-Valdez argues that the interrogation techniques allegedly employed by Robbins and Felix rendered his statements involuntary, making the admission of the statements a violation of his fifth amendment rights. We must determine "whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means." Miller v. Fenton, 474 U.S. 104, 116 (1985). We review this claim de novo. Id. at 112; Derrick, 924 F.2d at 817.

While Jimenez-Valdez's claim that his statement was involuntary is distinct from his claim that his Miranda waiver was involuntary, our conclusions regarding the two issues are the same. Jimenez-Valdez was questioned persistently for an hour, but there are no indications that he was coerced or pressured into making the statements. Jimenez-Valdez suggests that he was induced to make the statements by what he viewed as plea negotiations, based on Felix's promises that he would receive a lower sentence if he cooperated. However, under the law of our circuit, a defendant's belief that he is involved in plea negotiations must be objectively reasonable in view of all of the circumstances. United States v. Pantohan, 602 F.2d 855, 857 (9th Cir. 1979). Viewed in its entirety, the record does not support Jimenez-Valdez's belief and contention that the parties were engaged in plea discussions or negotiations. His reliance on two cases from other circuits, United States v. Herman, 544 F.2d 791 (5th Cir. 1977), and Grades v. Boles, 398 F.2d 409 (4th Cir. 1968), is misplaced. In both Herman and Grades, there were much clearer (and undisputed) statements and offers made concerning plea arrangements than there were in the present case.1  We conclude that the statements were voluntary. The district court did not err in denying the motion to suppress.2 

II. ADMISSION OF EXPERT TESTIMONY ON VALUE OF HEROIN

In a motion in limine and in an objection at trial, Jimenez-Valdez sought to prevent Customs Agent Huerta from testifying as an expert witness on the process of cutting heroin of high purity, like that found on Jimenez-Valdez, and the value of cut heroin. He argued that the testimony should have been excluded as irrelevant, see Fed.R.Evid. 401 & 402, and more prejudicial than probative, see Fed.R.Evid. 403. On appeal he reiterates these arguments and further claims that Huerta's testimony should not have been admitted because it did not "assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. We review the district court's determinations about whether evidence is relevant, and whether it is more probative than prejudicial, for abuse of discretion. United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989). The same standard of review applies to the district court's decision to admit or exclude expert testimony. United States v. Aguon, 851 F.2d 1158, 1171 (9th Cir. 1988) (en banc).

Huerta's expert testimony clearly was relevant to Jimenez-Valdez's intent, and was similarly admissible under Fed.R.Evid. 702 as helpful to the jury in determining that issue. In United States v. Golden, 532 F.2d 1244 (9th Cir.), cert. denied sub nom. Trowery v. United States, 429 U.S. 842 (1976), a district court had admitted expert testimony by a DEA agent concerning the market price of heroin found on the defendants. The court of appeals found no abuse of discretion, because the heroin's value "was relevant to both appellants' knowledge of the presence of the heroin and intent to distribute." Id. at 1247 (internal citations omitted); see also United States v. Sanchez-Lopez, 879 F.2d 541, 555 (9th Cir. 1989) (price, quantity, and quality of drugs found relevant to intent to distribute drugs and to knowledge of their presence in car).

The evidence also was relevant to the intent to distribute in that the heroin was of such a high purity that, when cut, the quantity would far exceed an amount that would be employed for personal use. Jimenez-Valdez contends, however, that any such probative value was outweighed by the prejudicial effect of Huerta's references in his testimony to "Mexican brown heroin." In support of this contention, Jimenez-Valdez relies on United States v. Doe, 903 F.2d 16 (D.C. Cir. 1990), in which the court found improper a police detective's expert testimony regarding the Jamaican "takeover" of the Washington, D.C., drug market. Jimenez-Valdez contends that Huerta's references to "Mexico" and "Mexican" had the same prejudicial impact as the detective's testimony in Doe concerning Jamaican drug dealers.

The present case is nothing like Doe. Huerta's references to "Mexico" and "Mexican" were strictly geographical; he did not make any prejudicial statements regarding Mexico or Mexican citizens. His statements were not at all similar to the repeated references to Jamaicans and their conquest of the D.C. drug market that were found to have racist overtones, and thus prejudicial effect on the Jamaican defendants' trial, in Doe. See Doe, 903 F.2d at 21-23. Huerta's testimony was not more prejudicial than probative, and the district court did not abuse its discretion in admitting it.

III. PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT

In closing argument, the prosecutor emphasized the value of the heroin found on Jimenez-Valdez, particularly its value when cut, and referred to the heroin as "nasty stuff." Jimenez-Valdez claims that these remarks constituted prosecutorial misconduct. We generally "review [] allegations of prosecutorial misconduct to consider whether the conduct materially affected the fairness of the trial." United States v. Solomon, 825 F.2d 1292, 1300 (9th Cir. 1987) (internal quotation omitted), cert. denied, 484 U.S. 1046 (1988). However, because Jimenez-Valdez failed to object to the prosecutor's remarks at trial, he must overcome the greater hurdle of establishing plain error. Id. In reviewing for plain error, we examine the entire trial record and will reverse only if necessary to prevent a "miscarriage of justice." Id. at 1298.

Jimenez-Valdez's claim is without merit. The prosecutor's remarks simply reiterated Agent Huerta's testimony about the process of cutting heroin and the value of the heroin found on Jimenez-Valdez. The appellation "nasty stuff" is hardly of sufficient potency to inflame a jury to the extent that it would neglect the evidence. The prosecutor's comments were within the permissible range of rhetoric employed in closing argument and did not affect the fairness of the trial. Certainly they did not lead to a miscarriage of justice requiring reversal.3 

CONCLUSION

The convictions are 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 Ninth Circuit Rule 36-3

 1

We also note that the Fifth Circuit panel in Herman applied a solely subjective standard for considering whether plea negotiations had occurred--a standard subsequently rejected by both the Fifth Circuit and our own. See United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978) (en banc); Pantohan, 602 F.2d at 857

 2

It is not clear whether Jimenez-Valdez is making a separate argument based on 18 U.S.C. § 3501, which requires the district court to consider the voluntariness of a confession before permitting it to go before a jury, but such an argument would not succeed in any event. Section 3501(b) requires the district court to consider all the circumstances and identifies several non-exclusive factors that are either irrelevant in the present case or identical to factors considered in the assessment of voluntariness in the context of a Miranda waiver or due process argument. Thus, even if Jimenez-Valdez is relying separately on section 3501, our conclusion that the statements were voluntary would remain the same for the reasons stated above

 3

Relying on United States v. Endicott, 803 F.2d 506, 512-513 (9th Cir. 1986), Jimenez-Valdez contends that the district court should have admonished the prosecutor for her comments and given a curative instruction to the jury. However, even if the prosecution's remarks had been improper, Jimenez-Valdez's failure to object to them at trial and request such actions by the district court distinguishes the present case from Endicott, in which the defendant asserted timely and successful objections to the prosecution's improper comments