United States v. Madden , 220 F. App'x 290 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 28, 2007
Charles R. Fulbruge III
No. 06-50428 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YOLANDA JEAN MADDEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
No. 7:05-CR-134
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
After a bench trial, the district court found Yolanda Madden
guilty of possession with intent to distribute methamphetamine
within 1000 feet of a university, a junior high school, and a play-
ground. She contends she did not validly waive her right to a jury
trial, despite that she executed a waiver in accordance with FED.
R. CRIM. P. 23(a) and makes no claim of prejudice. By executing the
waiver, and absent a claim of prejudice, she is presumed validly to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-50428
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have waived her right to a jury trial. See United States v. Tobi-
as, 662 F.2d 381, 387 (Former 5th Cir. Nov. 1981). Moreover,
Rule 23 “is a formulation of the constitutional guaranty of trial
by jury,” and its waiver provision “embodies existing practice, the
constitutionality of which has been upheld.” FED. R. CRIM. P. 23(a)
advisory committee’s notes (1944). Madden therefore shows no con-
stitutional or other reversible error in connection with her waiver
of a jury trial.
Madden contends that the warrantless search of her vehicle was
not supported by probable cause because the informant who led pol-
ice to her was not shown to be reliable. The informant identified
Madden by name and by photograph, and he provided credible and de-
tailed information about her, including her history of selling
methamphetamine to him, where she lived, her father’s place of bus-
iness, and what vehicles she drove. As police observed, the infor-
mant initiated two telephone conversations with Madden to arrange
to buy methamphetamine from her. Police corroborated information
about her vehicle, and the informant accurately predicted her ar-
rival at the set location in the vehicle she was driving. Under
the totality of the circumstances, the information given by the
informant provided probable cause to stop and search Madden’s ve-
hicle. See United States v. Delario, 912 F.2d 766, 767-68 (5th
Cir. 1990) (finding probable cause on similar information); United
States v. Reyes, 792 F.2d 536, 539 (5th Cir. 1986) (same).
No. 06-50428
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Madden contends that her admission to police that there was
methamphetamine in her vehicle should not have been admitted, be-
cause it was either the fruit of an illegal stop or obtained in vi-
olation of Miranda v. Arizona, 384 U.S. 436 (1966). Because the
information provided by the informant established probable cause or
at least reasonable suspicion for the stop, Madden’s admission was
not the fruit of an illegal stop.
Madden’s statement was not obtained in violation of Miranda.
Police had only just stopped her at the meeting site, and a detec-
tive had explained that police were conducting a drug investigation
and had reason to believe she possessed methamphetamine, when she
blurted out that there was methamphetamine in a bag inside her ve-
hicle. She was not in custody. See United States v. Bengivenga,
845 F.2d 593, 596 (5th Cir. 1988) (en banc). Miranda therefore did
not apply. See United States v. Courtney, 463 F.3d 333, 336 (5th
Cir. 2006).
In addition, Madden was not being interrogated. Nothing in
the record suggests that the officers expected her to blurt out
that she was carrying illegal drugs before being arrested, Miran-
dized, or questioned further. See Rhode Island v. Innis, 446 U.S.
291, 301 (1980); United States v. Savell, 546 F.2d 43, 46 (5th Cir.
1977).
Madden contends that the district court should have departed
downward to cancel out her two-level sentence increase based on the
crime’s proximity to two schools and a playground. She argues that
No. 06-50428
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police entrapped her into appearing at that location. To the ex-
tent this is a legal question concerning the application of
U.S.S.G. § 2D1.1, comment. (n.14), we have jurisdiction to review
the decision. Note 14 to § 2D1.1 does not apply because, by its
own terms, note 14 provides for a potential downward departure “in
a reverse sting (an operation in which a government agent sells or
negotiates to sell a controlled substance to a defendant).
§ 2D1.1, comment. (n.14). This was not a reverse sting, because
the government was not acting as the seller. Moreover, the evi-
dence shows no sentence entrapment, but rather that the site for
the meeting was chosen by Madden and the informant, without police
input, because it was convenient for Madden.
The judgment is AFFIRMED.