United States v. Cynthia Barboza , 399 F. App'x 312 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50505
Plaintiff - Appellee, D.C. No. 3:09-cr-01440-LAB-1
v.
MEMORANDUM *
CYNTHIA MARIE BARBOZA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted October 5, 2010 **
Pasadena, California
Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.
Cynthia Marie Barboza (“Barboza”) appeals her conviction for importation
of marijuana and possession of marijuana with intent to distribute. She asserts that
certain statements she gave to Immigration and Customs Enforcement (“ICE”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
agents following her arrest were involuntary and thus should not have been
admitted at trial.
A trial court’s conclusion that a statement was made voluntarily “must
appear from the record with unmistakable clarity.” United States v. Brown, 575
F.2d 746, 748 (9th Cir. 1978) (quoting Sims v. Georgia, 385 U.S. 538, 544 (1967))
(internal quotation marks omitted). The district court properly made a
determination that Barboza’s statements were voluntary. See United States v.
Jenkins, 785 F.2d 1387, 1394 (9th Cir. 1986) (citing Jackson v. Denno, 378 U.S.
368, 391 (1964)); see also Sims, 385 U.S. at 544 (holding that the district court
“need not make formal findings of fact or write an opinion” on voluntariness so
long as its conclusion “appear[s] from the record with unmistakable clarity.”). The
district court found that Barboza “[had not] offered any evidence to [the court] or
any declaration that anything she said was the product of her will being
overborne,” Trial Transcript at 191, and the evidence submitted by Barboza,
including a declaration from her counsel and a video recording of her ICE
interview, was insufficient to show “that anything that was said was the product of
coercion or improper tactics by border agents.” Trial Transcript at 192.
“[C]oercive police activity is a necessary predicate to the finding that a confession
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is not ‘voluntary’ within the meaning of the Due Process Clause . . . .” Colorado v.
Connelly, 479 U.S. 157, 167 (1986).
“We review de novo the voluntariness of a criminal suspect’s statements to
law enforcement officers.” United States v. Okafor, 285 F.3d 842, 846–47 (9th
Cir. 2002). The district court’s factual findings underlying its determination of
voluntariness are reviewed for clear error. United States v. Haswood, 350 F.3d
1024, 1027 (9th Cir. 2003).
The district court’s finding is entirely supported by the law. As we have
explained,
A confession is involuntary if coerced either by physical intimidation
or psychological pressure. In determining whether a defendant’s
confession was voluntary, the question is whether the defendant’s will
was overborne at the time he confessed. . . . Therefore, we must
consider the totality of the circumstances involved and their effect
upon the will of the defendant.
United States v. Crawford, 372 F.3d 1048, 1060 (9th Cir. 2004) (internal citations
and quotation marks omitted). There was no physical intimidation or
psychological pressure in this case. Barboza was questioned for 20 minutes in a
brightly lit office. The ICE agents sat several feet away from her, and were polite
and respectful. They ceased questioning when she asked for an attorney and
reassured her that she was within her rights in refusing to speak. Although
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Barboza was held for nine hours prior to her interview, the delay was largely a
result of Barboza’s self-reported high blood pressure condition, which required a
trip to the hospital. Thus, the totality of the circumstances makes clear that
Barboza’s statements were given voluntarily.
AFFIRMED.
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