and Submitted on September 13, 2016 San Francisco, California
from the United States District Court for the District of
Arizona Raner C. Collins, Chief Judge, Presiding D.C. No.
H. Sigal (argued), Law Offices of Roger H. Sigal, Tucson,
Arizona, for Defendant-Appellant.
Lawrence C. Lee (argued) and Bruce M. Ferg, Assistant United
States Attorneys; Robert L. Miskell, Appellate Chief; John S.
Leonardo, United States Attorney; United States
Attorney's Office, Tucson, Arizona; for
Before: William A. Fletcher, Morgan B. Christen, and Michelle
T. Friedland, Circuit Judges.
panel affirmed a conviction for conspiracy to possess with
intent to distribute marijuana, in a case in which the
defendant argued that the district court erred by denying his
motion for a judgment of acquittal because the government did
not introduce sufficient evidence to corroborate his
confession under the corpus delicti doctrine.
panel held that the government satisfied both prongs of the
corpus delicti test set forth in United States
v. Lopez-Alvarez, 970 F.2d 583 (9th Cir. 1992), by
introducing sufficient corroborating evidence that the core
conduct of the defendant's crime actually occurred, and
sufficient evidence to corroborate the reliability of the
videotaped confession and the authenticity of the
defendant's confessed involvement in the conspiracy.
panel addressed other issues in a concurrently-filed
CHRISTEN, Circuit Judge
Niebla-Torres (Niebla), a native and citizen of Mexico,
appeals his conviction for conspiracy to possess with intent
to distribute marijuana, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(D), and 846. Niebla argues
that the district court erred by denying his motion for a
judgment of acquittal because the government did not
introduce sufficient evidence to corroborate his confession
under the corpus delicti doctrine. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm
Patrol Agent Michael Colella arrested Niebla on Pozo Redondo
Mountain in southern Arizona, near the Ajo Border Patrol
station, on November 27, 2014. According to the
government's expert trial witness, the Ajo area is a
smuggling corridor. Drug-trafficking organizations control
the majority, if not all, of the smuggling routes, and the
drug traffickers allow individuals to illegally cross into
the United States only if they pay a fee, work as backpackers
carrying drugs, or serve as scouts to look out for
law-enforcement activity. The backpackers typically carry
marijuana and travel in groups of five to ten people. They
traverse the valley floor, instead of walking through the
mountains, because each backpack weighs forty to sixty pounds
and the backpacks are easier to carry on flat ground. Scouts
track law-enforcement movement from mountaintop locations to
help the backpackers avoid detection.
Colella spotted two people on the Pozo Redondo Mountain for
several days in a row leading up to Niebla's arrest. The
individuals "weren't standing out in the open like a
normal hiker would, " and "appeared to be
concealing themselves." Agent Colella could just see the
"tops of their heads, just from their chin up, and every
so often their heads would go back down and then come back
up." Because the summit provides a relatively
unobstructed view of the valley floor (including the Border
Patrol station), Agent Colella suspected the two people were
scouting law-enforcement activities. Agent Colella had never
encountered any hikers or tourists on the mountain, and
described the terrain as very steep, rocky, and slippery.
day of Niebla's arrest, Agent Colella learned that other
agents had spotted four possible scouts on the mountain from
an aircraft equipped with a camera that detects body heat.
Agent Colella and another Border Patrol agent, Paul Gallegos,
ascended the mountain by helicopter to investigate. The
helicopter dropped them off near the mountain's summit,
where they encountered two individuals later identified as
Niebla and Andres Garcia-Espinoza. The agents apprehended
Niebla and Garcia-Espinoza and searched the area where the
men were hiding. They found cellular phones and radio
batteries in a satchel Niebla was wearing, and hand-held
radios, a pair of binoculars, and trash in two nearby caves.
Both men were wearing camouflage clothing. Agent Colella
arrested Niebla and Garcia-Espinoza on suspicion of smuggling
and arranged for transport to the Ajo Border Patrol station.
There, another Border Patrol agent, Manuel Alonzo, advised
Niebla of his constitutional rights and, two hours later,
this interview, Niebla admitted that he was on the mountain
as a scout. He said that he helped two groups of smugglers
carrying suitcases cross the border into the United States,
and stated that he did not know what was in the suitcases,
but that based on his experience, "it must be
marijuana." Niebla specified that each group contained
eight or ten people carrying roughly one suitcase per person,
and that each suitcase weighed twenty kilograms. He explained
that he knew how much the suitcases weighed because the
smugglers told him before they crossed into the United
States. Niebla said that he was on the mountain for three or
four days before Agent Colella arrested him, and that he
expected to remain on the mountain for roughly twenty more
days. The agents did not recover any marijuana.
government charged Niebla with conspiracy to possess with
intent to distribute a controlled substance (Count One) and
illegal reentry (Count Two). He pleaded guilty to the
illegal-reentry count and proceeded to a bench trial on the
conspiracy count. Niebla filed a pretrial motion to suppress
his confession as involuntary, arguing that the agent who
interviewed him, Agent Alonzo, threatened him with seven
years' imprisonment if he did not confess. According to
Niebla, Agent Alonzo primed him for the interview during ...