United States v. Abelardo Niebla-Torres ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10261
Plaintiff-Appellee,
D.C. No.
v. 4:14-cr-02037-
RCC-DTF-1
ABELARDO NIEBLA-TORRES,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief Judge, Presiding
Argued and Submitted on September 13, 2016
San Francisco, California
Filed January 31, 2017
Before: William A. Fletcher, Morgan B. Christen,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Christen
2 UNITED STATES V. NIEBLA-TORRES
SUMMARY*
Criminal Law
The 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.
The 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.
The panel addressed other issues in a concurrently-filed
memorandum disposition.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. NIEBLA-TORRES 3
COUNSEL
Roger 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 Plaintiff-Appellee.
OPINION
CHRISTEN, Circuit Judge:
Abelardo 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 846.1 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 Niebla’s conviction.
I. BACKGROUND
Border 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
1
In the defendant’s brief to this court, his counsel refers to him as
“Niebla,” so we adopt that convention here.
4 UNITED STATES V. NIEBLA-TORRES
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.
Agent 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.
On the 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
UNITED STATES V. NIEBLA-TORRES 5
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, interviewed him.
During 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.
The 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
6 UNITED STATES V. NIEBLA-TORRES
years’ imprisonment if he did not confess. According to
Niebla, Agent Alonzo primed him for the interview during
the two-hour gap between the time Alonzo read Niebla his
rights (an event that was not videotaped) and when the
videotaped interview began.
A magistrate judge held a two-day evidentiary hearing on
the motion to suppress, at which both Agent Alonzo and
Niebla testified. Agent Alonzo testified that he advised
Niebla of his constitutional rights and that Niebla willingly
waived them and agreed to speak with the agent. The
government introduced Niebla’s signed rights form into
evidence at the hearing. By contrast, Niebla denied any
involvement in a drug-smuggling operation and testified that
he admitted to helping two groups cross the border because
Agent Alonzo “pressured me that if I didn’t say that . . . I was
going to be there for seven years. That was the reason
because he scared me. He pressured me.”
The magistrate judge credited Agent Alonzo’s description
of the interview over Niebla’s, largely because the court
found Agent Alonzo’s account to be more consistent with the
videotape. Niebla claimed that Agent Alonzo raised his voice
and pressured him into confessing, but Agent Alonzo could
not be heard doing so on the videotape. The magistrate judge
also found that Niebla’s hearing testimony was internally
inconsistent. He testified that he was on the mountain for
several days without knowing why he was there or who he
was with, but also stated on cross-examination that he
expected to be paid for the work he performed on the
mountaintop, that the work probably involved reporting on
the movement of law-enforcement officers, and that he
thought the suitcases being smuggled across the border would
contain marijuana. Despite Niebla’s insistence that he was
UNITED STATES V. NIEBLA-TORRES 7
not a member of a drug-smuggling operation, the magistrate
judge recognized that, in his hearing testimony, Niebla
ultimately admitted many of the details from his videotaped
confession. The magistrate judge recommended denying the
motion to suppress. The district court adopted the
recommendation in a pretrial ruling.
At trial, the government presented the testimony of
Agents Colella and Alonzo to describe Niebla’s arrest and
confession; an expert witness to explain how drug-trafficking
organizations use scouts in the Ajo corridor; and evidence
that Niebla was previously arrested for scouting in the same
area in 2011. Niebla made an oral motion for a judgment of
acquittal under Federal Rule of Criminal Procedure 29 after
the government presented its case. He argued that the
government failed to produce sufficient evidence to
corroborate his confession to conspiracy to distribute
marijuana independent of the confession itself. Specifically,
he contended that “the only real evidence presented by the
Government of any agreement to distribute a specific
controlled substance is Mr. Niebla’s post arrest statements.”
The district court denied the motion, and Niebla chose not to
present a defense. The district court found Niebla guilty, and
explained its verdict:
Based upon the evidence, the Court finds that
the defendant’s guilty on the charge of
conspiracy. The Court finds that being on the
hillside as he was, in the middle of nowhere,
dressed in camouflage clothes with
binoculars, radio, batteries, and a satchel is
sufficient evidence, and with his cohort, is
sufficient evidence to find that there was
agreement. The Court finds from his own
8 UNITED STATES V. NIEBLA-TORRES
words that the object of the agreement was
marijuana.2
The court sentenced Niebla to nine months’ imprisonment
and three years’ supervised release. Niebla timely appealed
his conviction. He argues that the conviction must be vacated
under the corpus delicti doctrine because the government did
not present sufficient evidence to corroborate his confession.
II. DISCUSSION
A. Standard of Review
Under Federal Rule of Criminal Procedure 29, “the court
on the defendant’s motion must enter a judgment of acquittal
of any offense for which the evidence is insufficient to sustain
a conviction.” We review de novo the denial of a motion for
acquittal. United States v. Corona-Garcia, 210 F.3d 973, 978
(9th Cir. 2000). We “ask whether, ‘after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’” Id. (quoting
United States v. Bahena-Cardenas, 70 F.3d 1071, 1072–73
(9th Cir. 1995)); see also Jackson v. Virginia, 443 U.S. 307,
319 (1979).
To obtain a conviction on the drug-conspiracy charge, the
government was required to prove that: (1) there was an
2
Niebla’s co-defendant, Andres Garcia-Espinoza, entered a guilty
plea to conspiracy to possess with intent to distribute a controlled
substance before a magistrate judge on February 17, 2015. The district
court accepted the guilty plea on March 4, 2015, the day after Niebla’s
bench trial concluded.
UNITED STATES V. NIEBLA-TORRES 9
agreement between two or more people to commit the crime
of possessing marijuana with the intent to distribute it; and
(2) Niebla joined in the agreement, knowing that it had an
unlawful purpose and intending to help accomplish it. See
United States v. Tran, 568 F.3d 1156, 1164 (9th Cir. 2009);
Ninth Circuit Model Criminal Jury Instructions § 9.19.
Niebla’s videotaped confession was compelling evidence of
his guilt, but, under the corpus delicti doctrine, the
“confession standing alone is not necessarily sufficient to
support his conviction.” United States v. Valdez-Novoa,
780 F.3d 906, 922 (9th Cir. 2015), cert. denied, 135 S. Ct.
2913 (2015).
B. The Corpus Delicti Doctrine
The corpus delicti doctrine requires that a conviction must
rest on more than a defendant’s uncorroborated confession.
See Opper v. United States, 348 U.S. 84, 92–94 (1954).
“Although the government may rely on a defendant’s
confession to meet its burden of proof, it has nevertheless
been long established that, in order to serve as the basis for
conviction, the government must also adduce some
independent corroborating evidence.” Corona-Garcia,
210 F.3d at 978 (citing Opper, 348 U.S. at 89). The
doctrine’s purpose is to protect against the risk of convictions
based on false confessions alone. See United States v. Lopez-
Alvarez, 970 F.2d 583, 592 (9th Cir. 1992) (citing Warszower
v. United States, 312 U.S. 342, 347 (1941)); see also Opper,
348 U.S. at 89–90 (“In our country the doubt persists that the
zeal of the agencies of prosecution to protect the peace, the
self-interest of the accomplice, the maliciousness of an enemy
or the aberration or weakness of the accused under the strain
of suspicion may tinge or warp the facts of the confession.”).
10 UNITED STATES V. NIEBLA-TORRES
In Lopez-Alvarez, we articulated a two-part test to
evaluate whether the government has met its burden under the
corpus delicti doctrine. 970 F.2d at 592. First, the
government “must introduce sufficient evidence to establish
that the criminal conduct at the core of the offense has
occurred. Second, it must introduce independent evidence
tending to establish the trustworthiness of the admissions,
unless the confession is, by virtue of special circumstances,
inherently reliable.” Id. The two prongs guard against
distinct types of false confessions. See id. at 590–92. The
first ensures that a defendant is not convicted of a non-
existent crime—that is, a crime that was not actually
committed—and the second reduces the likelihood that a
defendant is convicted based upon a false confession to an
actual crime. See id. The government must satisfy both
prongs for a case to survive a motion for a judgment of
acquittal based on insufficient evidence. Id. at 592.
“[T]he corpus deliciti rule does not require the
government to introduce evidence that would be
independently sufficient to convict the defendant in the
absence of the confession.” Valdez-Novoa, 780 F.3d at 923.
Nor does it require that the government “introduce
independent, tangible evidence supporting every element of
the corpus delicti.” Lopez-Alvarez, 970 F.2d at 591. Instead,
the government must introduce corroborating evidence “to
support independently only the gravamen of the offense—the
existence of the injury that forms the core of the offense and
a link to a criminal actor.” Id.
Niebla contends that the government failed to meet its
burden under both prongs of the Lopez-Alvarez test.
UNITED STATES V. NIEBLA-TORRES 11
C. The Core of the Offense
First, Niebla argues that the government did not introduce
sufficient corroborating evidence to establish that the criminal
conduct at the core of the offense occurred. The parties
dispute what constitutes the gravamen, or core, of the offense
of conspiracy to distribute a controlled substance. In the
course of this litigation, the parties have argued for three
different definitions of the core of the offense: (1) an
agreement to assist smugglers; (2) an agreement to smuggle
a controlled substance; and (3) an agreement to smuggle
marijuana.
The government has alternated between arguing that the
conduct at the core of conspiracy is an agreement to do
something illegal, and arguing that, in order to satisfy its
corpus delicti obligation, it must show that Niebla and his co-
conspirator agreed to help smuggle a controlled substance.
Niebla has likewise shifted his arguments over time. In the
district court, he maintained that the gravamen of conspiracy
under 21 U.S.C. §§ 841 and 846 is an agreement to distribute
a specific controlled substance, and that the government
failed to meet its burden because it did not present evidence
to corroborate the existence of a conspiracy to smuggle
marijuana. On appeal, Niebla argues that the government
failed to meet its burden because the evidence was “equally
consistent” with the possibility that the agreement was related
to human trafficking or to evading law enforcement after
illegal reentry into the United States. We need not decide
which definition applies because, even if we define the core
of the offense very specifically, as an agreement to possess
and distribute marijuana, the government satisfied its corpus
delicti burden.
12 UNITED STATES V. NIEBLA-TORRES
1. Conspiracy to Possess With Intent to Distribute
Marijuana
Using the most specific definition of the core of the
offense, the government had to present corroborating
evidence of a conspiracy to possess with the intent to
distribute marijuana. Niebla argues that the government
failed to offer sufficient corroborating evidence because the
agents did not find any marijuana at the time of Niebla’s
arrest. In Opper, the Supreme Court held that the corpus
delicti doctrine requires the government to introduce
corroborating evidence supporting “the essential facts
admitted sufficiently to justify a jury inference of their truth.”
348 U.S. at 93. Our court paraphrased Opper’s “essential
facts” requirement in Lopez-Alvarez: “the state is required to
support independently only the gravamen of the offense—the
existence of the injury that forms the core of the offense and
a link to a criminal actor—with tangible evidence.” 970 F.2d
at 591 (emphasis added).
The Supreme Court “has repeatedly said that the essence
of a conspiracy is ‘an agreement to commit an unlawful act.’”
United States v. Jimenez Recio, 537 U.S. 270, 274 (2003)
(quoting Iannelli v. United States, 420 U.S. 770, 777 (1975)).
The defendants in Jimenez Recio were found guilty of
conspiracy to distribute drugs even though the government
had seized the drugs before distribution—thereby making the
object of the conspiracy impossible—and the defendants
joined the conspiracy after the seizure. Id. at 272–74. The
Court reasoned that impossibility is not a defense to
conspiracy because the harm at the center of conspiracy is the
agreement. See id. at 274 (“That agreement is ‘a distinct
evil,’ which ‘may exist and be punished whether or not the
UNITED STATES V. NIEBLA-TORRES 13
substantive crime ensues.’” (quoting Salinas v. United States,
522 U.S. 52, 65 (1997))).
Our court has applied similar reasoning in the context of
conspiracies to rob stash houses. The stash-house cases
typically involve “reverse sting” operations whereby
government agents suggest to targets that they rob a fictional
stash house containing illegal drugs and money. “Once the
targets have taken steps to rob the fictional house, they are
arrested and charged with conspiracy to violate federal
narcotics laws.” United States v. Pedrin, 797 F.3d 792, 794
(9th Cir. 2015). We have affirmed drug-conspiracy
convictions arising from these scenarios even though the
object of the co-conspirators’ illegal agreement—the drugs in
the fictional stash house—did not actually exist. See, e.g.,
United States v. Williams, 547 F.3d 1187, 1197 (9th Cir.
2008) (explaining that the non-existent status of the drugs is
not a defense to a conspiracy charge).
Jimenez Recio and the stash-house cases confirm that the
failure to seize marijuana is not fatal to the government’s
prosecution of Niebla. Indeed, Niebla could have been
convicted of participating in a conspiracy to distribute
marijuana even if no marijuana had ever existed. Niebla’s
corpus delicti challenge instead turns on whether the
government presented sufficient corroborating evidence to
demonstrate that he knowingly entered into an agreement to
assist marijuana traffickers by scouting.
2. Corroborating Evidence of the Offense
“[A] conspiracy may be proven by circumstantial
evidence that the defendants acted together with a common
goal.” Williams, 547 F.3d at 1196 (quoting United States v.
14 UNITED STATES V. NIEBLA-TORRES
Iriarte-Ortega, 113 F.3d 1022, 1024 (9th Cir. 1997), amended
by United States v. Iriarte-Ortega, 127 F.3d 1200 (9th Cir.
1997)); see also Sandez v. United States, 239 F.2d 239, 244
(9th Cir. 1956) (“The corpus delicti may be proved by
circumstantial evidence.”). Here, the government introduced
independent, circumstantial evidence that Niebla knowingly
entered into an unlawful agreement to smuggle marijuana.
Agent Colella arrested Niebla in close proximity to his co-
defendant, Andres Garcia-Espinoza, on a remote mountaintop
in an area known to be frequented by marijuana smugglers
and their mountaintop scouts. Niebla was dressed in
camouflage, and Agent Colella testified that he saw two
people hiding together on the mountain for several days
before the arrest. When they were apprehended, Niebla and
Garcia-Espinoza had hand-held radios, cellular telephones,
and binoculars.3 According to the government’s expert
witness, Border Patrol Agent Carlos Rochin, scouts use these
items “to observe law enforcement movement and then relay
it back to the guide,” so the guide can avoid apprehension
while smuggling drugs across the desert. The remote
geographic area, the communications equipment, and the
expert witness’s testimony are circumstantial evidence of the
agreement that was at the heart of this drug-distribution
conspiracy. See United States v. Vargas-Ocampo, 747 F.3d
299, 302–03 (5th Cir. 2014) (en banc) (holding that presence
of scouts and defendant’s use of a push-to-talk radio
3
Niebla argued that the district court erred by admitting the
binoculars (Exhibit 55) and a photo of the binoculars and two-way radios
(Exhibit 14) at trial because the government authenticated both exhibits
with hearsay testimony. We held that it was not plain error for the district
court to admit these exhibits in a memorandum disposition filed
concurrently with this opinion.
UNITED STATES V. NIEBLA-TORRES 15
constituted circumstantial evidence of an agreement to
engage in drug trafficking).
Agent Rochin also explained that drug-trafficking
organizations control the majority, if not all, of the smuggling
routes in the Ajo Border Patrol station’s area of operations,
and that they typically traffic marijuana. Although aliens are
also smuggled along these routes, Agent Rochin testified that
one would need prior permission from the drug-trafficking
organizations in order to cross into the United States on these
routes, and that an individual must pay a fee, work as a scout,
or carry drugs across the desert in order to gain the drug-
trafficking organizations’ permission to cross.
The government also presented evidence of Niebla’s 2011
arrest to counter Niebla’s argument that he was on the
mountain for several days with no knowledge of why he was
there.4 Border Patrol Agent Vincente Paco testified that he
arrested Niebla for scouting in 2011 close to the location
where Agent Colella arrested Niebla for the current offense.
Niebla was not charged in 2011. Although Agent Paco’s
team was conducting an investigation into alien smuggling
when they encountered Niebla, Agent Paco testified that he
did not know whether Niebla was scouting for a human-
trafficking or drug-trafficking operation, but that the area
where his team found Niebla is mostly used for narcotic
smuggling.
4
Niebla argued the district court erred by admitting evidence of the
prior arrest under Federal Rule of Evidence 404(b). We held that the
district court properly admitted this evidence in a memorandum
disposition filed concurrently with this opinion.
16 UNITED STATES V. NIEBLA-TORRES
We conclude that the government satisfied the first prong
of the Lopez-Alvarez corpus delicti test by introducing
sufficient corroborating evidence that the core conduct of
Niebla’s crime actually occurred. To satisfy the corpus
delicti doctrine, “the corroborative evidence does not have to
prove the offense beyond a reasonable doubt, or even by a
preponderance, as long as there is substantial independent
evidence that the offense has been committed . . . .” Smith v.
United States, 348 U.S. 147, 156 (1954). The government
established that: (1) agents arrested Niebla in an area
controlled by drug-trafficking organizations; (2) those
organizations typically traffic marijuana; (3) Agent Colella
saw two men on the mountain trying to hide for several days
leading up to the arrest; (4) Niebla was wearing camouflage
clothing and carrying a cellular phone and radio batteries at
the time of the arrest; (5) the arresting agents found
binoculars and hand-held radios in nearby caves; (6) scouts
use these same items to help backpackers traverse the valley
floor carrying marijuana; and (7) Niebla was arrested on
suspicion of scouting for a smuggling operation in the same
area three years earlier.
D. Reliability of the Confession
Niebla also argues that the government’s evidence was
insufficient to corroborate his confession under Lopez-
Alvarez’s second prong. This part of the corpus delicti test
requires that the government “introduce independent evidence
tending to establish the trustworthiness of the admissions,
unless the confession is, by virtue of special circumstances,
inherently reliable.” Lopez-Alvarez, 970 F.2d at 592. In
Valdez-Novoa, we held that the fact that a confession “is
recorded, voluntary, and the result of an interrogation that is
conducted in a manner consistent with the constitutional
UNITED STATES V. NIEBLA-TORRES 17
protections afforded the accused supports a determination that
it is ‘inherently reliable’ under Lopez-Alvarez’s second
prong.” 780 F.3d at 925.
Niebla emphasizes the two-hour delay between the time
he received the Miranda-advisement and the time his
interview was videotaped, and maintains that his demeanor
during the interview is consistent with pre-interview
coaching. Niebla does not challenge whether his “statement
was voluntary and Miranda-compliant, but rather, whether
there was evidence which shed doubt on the confession’s
reliability.”
Niebla’s argument that his confession was coached is not
supported by the videotape. In fact, the district court’s
finding that the videotape demonstrates Niebla’s confession
was “spontaneous and unrehearsed” is well supported.
Contrary to Niebla’s claim, Agent Alonzo did not raise his
voice or speak harshly during Niebla’s interview. Niebla is
soft-spoken and has slumped, downcast posture in the video,
but he does not appear frightened of Agent Alonzo or
intimidated into answering questions. Cf. United States v.
Preston, 751 F.3d 1008, 1012 (9th Cir. 2014) (en banc).
Contrary to his assertion that he was coached, the videotape
shows that Niebla corrected Agent Alonzo several times
during the interview, and sometimes responded negatively to
Alonzo’s leading questions. The record demonstrates that
Agent Alonzo did not insist on particular answers to his
questions or repeatedly badger Niebla until he received
satisfactory responses. See Preston, 751 F.3d at 1013.
Niebla failed to show that his interrogation was
inconsistent “with the constitutional protections afforded the
accused.” See Valdez-Novoa, 780 F.3d at 925. The recording
18 UNITED STATES V. NIEBLA-TORRES
allowed the court to see how the interview unfolded and to
assess the voluntariness of Niebla’s responses. “Where the
government complies with all of the procedural protections
afforded the accused and the defendant’s videotaped
statement is shown to the [trier of fact], there is no elevated
risk that the confession was the product of coercion or that
the defendant’s words were misconstrued.” Id.
Furthermore, the same physical and circumstantial
evidence that corroborates Niebla’s confession to the core of
the offense also verifies the authenticity of his confessed
involvement in the conspiracy. See id. at 924–25. Niebla
stated that he was on the mountain for several days before the
arrest, which is consistent with Agent Colella’s observation
of two people hiding together on the mountain for that period
of time. Niebla explained that he helped two groups of eight
or ten people cross the border into the United States, and that
each suitcase weighed twenty kilograms. Testimony from the
government’s expert witness was in accord. The expert
testified that smugglers typically traverse the valley floor in
groups of five to ten people carrying backpacks that weigh
between forty and sixty pounds each, which is consistent with
Niebla’s twenty-kilogram estimate. The agents found hand-
held radios, radio batteries, cell phones, and binoculars on the
mountain, and in his videotaped confession Niebla admitted
that he and his co-conspirator used these items to
communicate with and guide smugglers across the desert
undetected. The government’s expert also testified that
scouts for marijuana-trafficking organizations in the Ajo
corridor use these devices. We conclude that the government
introduced sufficient corroborating evidence to satisfy Lopez-
Alvarez’s second prong.
UNITED STATES V. NIEBLA-TORRES 19
For the foregoing reasons, Niebla’s confession was
adequately corroborated under the corpus delicti doctrine.
Because the confession is sufficiently corroborated, viewing
all the evidence (including the confession) in the light most
favorable to the prosecution, any rational trier of fact could
have found beyond a reasonable doubt that Niebla knowingly
entered into an unlawful agreement to serve as a scout for
marijuana traffickers. See Corona-Garcia, 210 F.3d at 978.
III. CONCLUSION
Niebla failed to meet his burden of showing that the
government did not introduce sufficient independent evidence
to corroborate his confession. Because the evidence adduced
at trial satisfied the corpus delicti doctrine, the district court
correctly denied Niebla’s motion for a judgment of acquittal
under Federal Rule of Criminal Procedure 29.
AFFIRMED.