United States v. Delgado

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50238
Plaintiff-Appellee,
v.  D.C. No.
CR-06-00636-H
MODESTO DELGADO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted July 16, 2008*
Pasadena, California
Filed October 7, 2008
Before: Barry G. Silverman, Johnnie B. Rawlinson, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Rawlinson
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
14211
14214 UNITED STATES v. DELGADO
COUNSEL
Mary F. Prevost, San Diego, California, for appellant
Modesto Delgado.
Lawrence E. Spong, Assistant United States Attorney, San
Diego, California, for appellee United States.
OPINION
RAWLINSON, Circuit Judge:
Appellant Modesto Delgado (Delgado) was convicted of
possession of cocaine with the intent to distribute based on
UNITED STATES v. DELGADO 14215
cocaine found during a warrantless inspection of his commer-
cial truck in Missouri. Delgado challenges the district court’s
denial of his motion to suppress. Delgado maintains that com-
mercial trucking is not subject to warrantless inspections as a
pervasively regulated industry under New York v. Burger, 482
U.S. 691 (1987). Delgado also asserts that the state trooper’s
search of Delgado’s truck violated the Fourth Amendment by
going beyond the proper regulatory scope of an administrative
search.
Additionally, Delgado challenges the district court’s denial
of his motion for judgment of acquittal due to improper
venue. Delgado posits that venue was improper in the South-
ern District of California because there was no evidence that
the cocaine was placed in his truck in southern California, and
the government impermissibly relied on his confession with-
out introducing independent corroborating evidence to sup-
port its veracity.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm the district court’s judgment.
I. BACKGROUND
Delgado was charged in a two-count indictment with con-
spiracy to distribute cocaine, and possession of cocaine with
the intent to distribute.
Delgado filed a motion in limine to suppress the evidence
found in his truck premised on Fourth Amendment violations.
During the suppression hearing, Officer Jerrold Brooks, “a
commercial vehicle officer for the Missouri State Highway
Patrol,” testified that he was responsible for enforcing Mis-
souri’s commercial vehicle regulations. Officer Brooks
observed that he had “limited police powers. The Missouri
state troopers have full police powers and they enforce all the
regulations.” Officer Brooks could not make custodial arrests.
Instead, it was his responsibility “[t]o make sure the drivers
14216 UNITED STATES v. DELGADO
are qualified to drive the trucks, have the right credentials,
driver’s license, logs, hours of service, equipment . . . [and to]
make sure that all their equipment is up to safety standards.”
According to Officer Brooks, he has the authority pursuant to
Missouri’s Code to stop vehicles “without observing any traf-
fic violations.”
While “parked on the side of I-44,” Officer Brooks saw a
passing truck with a company name that he did not recognize.
He did not notice “any violations of the vehicle code,” or
“anything illegal at that time.” Officer Brooks testified that
the unfamiliar company name was important because
“[t]here’s a lot of new companies that come up, and we have
found that sometimes they don’t always have the right creden-
tials or permits . . .” Officer Brooks stopped the truck because
“[he] just didn’t recognize the markings or didn’t know who
it was, and to the best of [his] knowledge, [he had] never
stopped it before, so [he] stopped it to do an inspection.”
After stopping the truck, Officer Brooks asked the truck’s
driver, Cesar Delgado (Cesar),1 for his driver’s license, regis-
tration permits, shipping papers, and log book. Cesar did not
respond to Officer Brooks’ questions regarding the truck’s
cargo. Instead, Delgado “stepped through the sleeper curtains
. . . and stated that they were hauling speakers.” Delgado con-
firmed that he was the truck’s owner and driver.
When reviewing Cesar’s log books, Officer Brooks
observed that Cesar “only had two days logged,” although
commercial truck drivers are “required to have the day that
they’re operating on and seven previous days of log to show
. . . what they’ve been doing in the past eight-day period.”
Cesar “only had the day that [Officer Brooks] stopped him on
and the previous day.” Cesar’s log books violated the applica-
ble regulations. Officer Brooks noticed additional discrepan-
1
Cesar Delgado is Appellant’s brother. To avoid confusion, we refer to
Appellant Modesto Delgado as Delgado, and his brother as Cesar.
UNITED STATES v. DELGADO 14217
cies between Cesar’s and Delgado’s log books regarding the
hours on-duty.
According to Officer Brooks, Cesar confirmed that he
started the trip in Phoenix, Arizona, as reflected in Cesar’s log
books. However, Delgado’s log books indicated that the load
was picked up in Otay Mesa, California, and “[t]he shipping
papers showed San Diego, California.” Delgado’s log book
also reflected that Cesar was the co-driver in California. Offi-
cer Brooks testified that Delgado’s log book “appeared to be
in order.” However, Officer Brooks was uncertain “how
[Cesar] got to Phoenix, Arizona, since he lived in the same
place that [Delgado] did.”
Officer Brooks also discovered that Cesar had a disquali-
fied California driver’s license, which violated Missouri’s
regulations and vehicle code.
Officer Brooks asked Cesar whether the truck contained the
required fire extinguisher and reflective triangles. Cesar “got
out [of the truck] and tried to open the side box to show [Offi-
cer Brooks] the fire extinguisher and triangles,” but was
unable to open the door. Delgado told Officer Brooks that “he
could unlock that door from the inside. . . . And he stepped
across and asked [Officer Brooks] to step back and shut the
driver’s door first.” Officer Brooks found this unusual,
because “[Officer Brooks] couldn’t imagine why [Delgado]
had to shut that door before he handed [Officer Brooks] . . .
the fire extinguisher and triangles.”
When Delgado unlocked the side door, Officer Brooks
“saw the fire extinguisher that was laying [sic] there and [he]
leaned up there to see that it was charged.” Delgado then
“slammed or let the bunk down pretty hard,” which Officer
Brooks thought “was a little odd.”
Officer Brooks testified that “this just didn’t seem to appear
to be a normal trucking operation.” He contacted a state
14218 UNITED STATES v. DELGADO
trooper because Officer Brooks “saw some indicators that [he]
had seen in years past that [he had] been trained in that may
be some suspicious activity . . . and because Officer Brooks
was not allowed to search or seize.” Additionally, Officer
Brooks “never did get an answer from [Cesar or Delgado]
when definitely [Cesar] got in the truck.” “It appeared to
[Officer Brooks] that something . . . was out of the ordinary.
Something wasn’t right. So, [he] called [the state trooper] to
come and investigate.”
Officer Brooks “showed [Sergeant McMullin] the bills and
the log books and something didn’t match, and one driver said
he got in in the Phoenix area, and the other one had left at the
same address or the same town that both drivers stated on
their log — or their driver’s license . . .” Officer Brooks also
informed Sergeant McMullin of the three violations Officer
Brooks had found. Finally, Officer Brooks informed Sergeant
McMullin that Delgado’s slamming down the bunk bed “was
very suspicious. It was kind of out of the ordinary and it
wasn’t normal.”
The three violations found by Officer Brooks were a light
that was out; the incomplete entries in Cesar’s log book; and
Cesar’s invalid driver’s license. Officer Brooks concluded
that the violations did not warrant a citation. However, having
false log books was a misdemeanor in Missouri.
Sergeant Jack McMullin, a state trooper for the Missouri
State Highway Patrol, testified that state troopers have “more
authority in the sense of arrest” than commercial vehicle offi-
cers (CVOs). According to Sergeant McMullin, he is con-
tacted by CVOs when there is suspected criminal activity.
Sergeant McMullin acknowledged that CVOs call him “be-
cause they suspect[ ] drug trafficking.” However, Officer
Brooks did not tell Sergeant McMullin “that he suspected that
this was a drug courier truck.” According to Sergeant McMul-
lin, Officer Brooks and his partner contacted him “[d]ue to
UNITED STATES v. DELGADO 14219
their concern about entries in the log book and responses they
had got when asked questions about the entries in the log
book.” Sergeant McMullin was also made aware of Cesar’s
invalid driver’s license. In addition, the log books were “indi-
cators that led [them] to believe there was possible criminal
activity.” The CVOs relayed that Cesar and Delgado “were
nervous.” The CVOs never told Sergeant McMullin that they
were not going to issue a citation.
After he spoke with Officer Brooks, Sergeant McMullin
asked Delgado to exit the truck. Sergeant McMullin inquired
about the discrepancies in the log books, and “the Phoenix
deal.” Delgado responded that “they were in Phoenix, but
they were there just for a short while and that they remained
in the truck. They didn’t even get out.” Sergeant McMullin
did not “get an explanation that satisfactorily explained why
there were discrepancies.” Sergeant McMullin testified that
his suspicions were based on “[t]he log book, the demeanor
of the two individuals, the situation itself . . .”
Sergeant McMullin received Delgado’s consent to search
the truck. While searching the truck, Sergeant McMullin
found a suitcase containing “two empty duffle bags.” Ser-
geant McMullin believed that the empty duffle bags were
unusual because, in his experience, “these were used to bring
drugs or money into the vehicle.” Sergeant McMullin also
“located a false wall at the front of the sleeper . . .” Sergeant
McMullin “lifted the lid [and] saw the drugs inside . . .”
Forty-two packages of cocaine, weighing a total of 41.99 kg.,
were seized.
Delgado denied giving Sergeant McMullin consent to
search the truck. Delgado also testified that Cesar got into the
truck at his house in Colton, California, not in Arizona.
Delgado was charged with conspiracy to distribute cocaine
and possession of cocaine with the intent to distribute, and
tried in the Southern District of California. The district court
14220 UNITED STATES v. DELGADO
denied Delgado’s motion to suppress evidence relating to the
cocaine discovered in Delgado’s truck. The court also denied
Delgado’s motion for reconsideration.
During Delgado’s trial, Officer Marvin Ringgold, a Spring-
field, Missouri police officer, testified that he served as a liai-
son to the Drug Enforcement Administration. After being
advised of his rights, Delgado agreed to be interviewed by
Officer Ringgold. According to Officer Ringgold, Delgado
stated that “he picked [the cocaine] up in Southern California
and [was] taking [the cocaine] to Philadelphia, Pennsylvania.
Delgado specified that he picked up the cocaine in San Ysi-
dro, California, based on instructions from an individual
named “Sanchotina.” Delgado “admit[ted] that he knew that
the cocaine was in his truck,” and that Sanchotina was going
to pay Delgado ten thousand dollars for its delivery to Philadel-
phia.2
The district court denied Delgado’s motion for judgment of
acquittal based on improper venue. The jury found Delgado
“guilty of possession of cocaine with intent to distribute . . .”
However, the jury was unable to reach a verdict on the con-
spiracy charge.
The district court sentenced Delgado to forty-six months
imprisonment, and three years of supervised release. Delgado
filed a timely notice of appeal.
II. STANDARDS OF REVIEW
“We review de novo the denial of a motion to suppress,
while the underlying factual findings are reviewed for clear
error.” United States v. Snipe, 515 F.3d 947, 950 (9th Cir.
2008) (citations and alteration omitted).
2
The prosecution and defense stipulated that the forty-two packages
found in Delgado’s truck contained 41.99 kilograms of cocaine.
UNITED STATES v. DELGADO 14221
“We determine jurisdiction and venue issues de novo.”
United States v. Lee, 472 F.3d 638, 641 (9th Cir. 2006) (cita-
tions omitted).
III. DISCUSSION
A. Missouri’s Inspection Statute
Delgado contends that, because commercial trucking is not
a pervasively regulated industry, Missouri’s inspection statute
violates the Fourth Amendment and fails to satisfy the
requirements established in Burger.3
[1] “As a general rule, searches and seizures violate the
Fourth Amendment unless they are based on probable cause
and executed pursuant to a valid search warrant.” United
States v. 4,432 Mastercases of Cigarettes, More or Less, 448
3
In Burger, the United States Supreme Court held that automobile junk-
yards are closely regulated industries subject to warrantless inspections.
482 U.S. at 703-04. “This warrantless inspection, however, even in the
context of a pervasively regulated business, will be deemed to be reason-
able only so long as three criteria are met. First, there must be a substantial
government interest that informs the regulatory scheme pursuant to which
the inspection is made.” Id. at 702 (citations and internal quotation marks
omitted). “Second, the warrantless inspections must be necessary to fur-
ther the regulatory scheme.” Id. (citation, alteration, and internal quotation
marks omitted). “Finally, the statute’s inspection program, in terms of the
certainty and regularity of its application, must provide a constitutionally
adequate substitute for a warrant. In other words, the regulatory statute
must perform the two basic functions of a warrant: it must advise the
owner of the commercial premises that the search is being made pursuant
to the law and has a properly defined scope, and it must limit the discre-
tion of the inspecting officers.” Id. at 703 (citations, alterations, and inter-
nal quotation marks omitted). “To perform this first function, the statute
must be sufficiently comprehensive and defined that the owner of com-
mercial property cannot help but be aware that his property will be subject
to periodic inspections undertaken for specific purposes. In addition, in
defining how a statute limits the discretion of the inspectors, we have
observed that it must be carefully limited in time, place, and scope.” Id.
(citations and internal quotation marks omitted).
14222 UNITED STATES v. DELGADO
F.3d 1168, 1176 (9th Cir. 2006) (citation omitted). “The pro-
tection against unreasonable searches and seizures extends to
commercial premises . . .” Id. (citation omitted). “The United
States Supreme Court, however, has carved out a limited
number of contexts within which a warrant is not required.
Administrative searches of closely regulated industries are
one such exception and may be conducted without a warrant,
so long as they meet certain standards of reasonableness.” Id.
(citation and internal quotation marks omitted). “We do not
require a warrant in such situations because the federal regu-
latory presence is sufficiently comprehensive and defined that
the owner of the commercial property cannot help but be
aware that his property will be subject to periodic inspections
undertaken for specific purposes.” Id. (citation and internal
quotation marks omitted).
[2] For the stop of Delgado’s truck to be a permissible
administrative search, we must determine that commercial
trucking is a pervasively regulated industry. See id. We have
not extensively addressed the regulatory status of the com-
mercial trucking industry.4 However, the First, Fifth, Sixth,
Eighth, and Tenth Circuits have concluded that commercial
trucking is a pervasively regulated industry under Burger. See
United States v. Maldonado, 356 F.3d 130, 135 (1st Cir.
2004); United States v. Castelo, 415 F.3d 407, 410 (5th Cir.
2005); United States v. Fort, 248 F.3d 475, 480 (5th Cir.
2001); United States v. Dominguez-Prieto, 923 F.2d 464, 468
(6th Cir. 1991); United States v. Mendoza-Gonzalez, 363 F.3d
4
In other Fourth Amendment contexts, we have recognized that com-
mercial trucking is a pervasively regulated industry. In upholding drug
testing regulations for commercial drivers, we observed that “[t]he privacy
expectations of commercial truck drivers are markedly less than those of
the public in general. The trucking industry is highly regulated and drivers
have long been subjected to federal regulation of their qualifications.” Int’l
Bhd. of Teamsters v. Dep’t of Transp., 932 F.2d 1292, 1300 (9th Cir.
1991), as amended (citation omitted). Although demonstrative of the
highly regulated nature of commercial trucking, this precedent does not
address searches conducted pursuant to state inspection statutes.
UNITED STATES v. DELGADO 14223
788, 794 (8th Cir. 2004); United States v. Mitchell, 518 F.3d
740, 751 (10th Cir. 2008).
[3] We similarly conclude that commercial trucking is a
pervasively regulated industry. Commercial trucking is sub-
ject to extensive federal regulation. See, e.g., 49 U.S.C.
§ 31142; 49 C.F.R. § 391.11; 49 C.F.R. § 391.15; 49 C.F.R.
§ 395.3; 49 C.F.R. § 395.8. Numerous states also impose sub-
stantial regulatory and inspection standards for commercial
vehicles. See, e.g., Ariz. Rev. Stat. Ann. § 41-2066(A)(4);
Cal. Veh. Code § 2813; Haw. Rev. Stat. § 286-209(a); Mont.
Code Ann. § 61-10-141(1)(a); Nev. Rev. Stat. § 581.057(4);
Or. Rev. Stat. § 825.250(1); Wash. Rev. Code § 46.32.010(2).
Thus, Burger provides the appropriate analytical framework
because “the myriad federal and state statutes that govern
commercial trucking place it squarely within the class of
industries to which Burger applies.” Castelo, 415 F.3d at 410
(citation omitted).5
Under Burger, Missouri’s warrantless inspections of com-
mercial vehicles survive Fourth Amendment scrutiny if “1)
the underlying regulatory scheme advances a substantial gov-
ernment interest; 2) warrantless inspections are necessary to
further the regulatory scheme; and 3) the inspection program
provides a constitutionally adequate substitute for a warrant.”
4,432 Mastercases of Cigarettes, 448 F.3d at 1179 (citations
and internal quotation marks omitted).
5
Delgado maintains that, because commercial trucking is not a perva-
sively regulated industry, the search of the truck is controlled by Delaware
v. Prouse, 440 U.S. 648 (1979). In Fort, the Fifth Circuit “reject[ed] [the
appellant’s] contention that Prouse forbids random, suspicionless stops
and inspections of commercial trucks. The concerns that informed the
analysis in Prouse have less applicability in the context of statutory or reg-
ulatory inspections in the pervasively regulated industry of commercial
trucking.” Fort, 248 F.3d at 481. We also conclude that Prouse is inappo-
site.
14224 UNITED STATES v. DELGADO
[4] Although not extensively considered by our court, other
circuit courts are in accord that warrantless inspections of
commercial trucks are necessary and serve a substantial gov-
ernmental interest. See Fort, 248 F.3d at 481 (“Commercial
trucks pass quickly through states and out of the jurisdictions
of the enforcement agencies. Because of the transitory nature
of the commercial trucking industry, we conclude that the
need for warrantless stops and inspections is even more com-
pelling than the warrantless inspections of automobile junk-
yards upheld in Burger.”) (citations and footnote reference
omitted); Maldonado, 356 F.3d at 136 (“[B]ecause violations
of the regulatory scheme often are not apparent to a patrolling
officer, inspections are sometimes the only way in which vio-
lations can be discovered. We conclude, therefore, that effec-
tive enforcement of the regulatory regime would be
impossible in the absence of impromptu inspections.”);
Dominguez-Prieto, 923 F.2d at 469 (“Like the stolen cars and
automobile parts which pass quickly through an automobile
junkyard, trucks pass quickly through states and out of the
jurisdictions of the enforcement agencies; the facts presented
here in support of warrantless inspections are more compel-
ling than those present in Burger.”).
[5] Given this weight of authority, we similarly conclude
that the warrantless inspection of commercial vehicles “ad-
vances a substantial government interest,” and is “necessary
to further the regulatory scheme.” 4,432 Mastercases of Ciga-
rettes, 448 F.3d at 1179 (citations and internal quotation
marks omitted).
Delgado also posits that the Missouri statute is an inade-
quate substitute for a warrant because it provides enforcement
officers with unfettered discretion in conducting inspections
without observing a regulatory violation. However, Delgado’s
argument imports into the Burger analysis a requirement that
Burger does not mandate. In Burger, the approved statute did
not limit the inspectors’ discretion only to commercial prem-
ises with observable violations. See Burger, 482 U.S. at 694
 UNITED STATES v. DELGADO 14225
n.1.6 The Supreme Court observed that “[i]t was unclear from
the record why, on that particular day, Burger’s junkyard was
selected for inspection. The junkyards designated for inspec-
tion apparently were selected from a list of such businesses
compiled by New York City police detectives.” Id. at 694 n.2
(citations omitted). Despite the lack of clarity, the statute still
provided a proper warrant substitute because it “inform[ed]
the operator of a vehicle dismantling business that inspections
will be made on a regular basis. Thus, the vehicle dismantler
knows that the inspections to which he is subject do not con-
stitute discretionary acts by a government official but are con-
ducted pursuant to statute.” Id. at 711 (citations omitted).
Additionally, “the permissible scope of these searches is nar-
rowly defined: the inspectors may examine the records, as
well as any vehicles or parts of vehicles which are subject to
the record keeping requirements of this section and which are
on the premises.” Id. at 711-12 (citation and internal quotation
marks omitted). Burger, therefore, does not support Delgado’s
proposition that the enforcement officers must observe a vio-
lation before stopping a commercial vehicle for inspection.
Cf. Maldonado, 356 F.3d at 136 (“[B]ecause violations of the
regulatory scheme often are not apparent to a patrolling offi-
cer, inspections are sometimes the only way in which viola-
tions can be discovered.”).
[6] We conclude that the Missouri statute provides a similar
permissible warrant substitute. The inspection statute is lim-
ited to commercial vehicles. Mo. Stat. Ann.
§ 304.230.4(2)(2004). The enforcement inspectors “determine
compliance with commercial vehicle laws, rules, and regula-
tions, [and] compliance with the provisions of sections
6
The statute mandated that “[u]pon request of an agent of the commis-
sioner or of any police officer and during his regular and usual business
hours, a vehicle dismantler shall produce such records and permit said
agent or police officer to examine them and any vehicles or parts of vehi-
cles which are subject to the record keeping requirements of this section
and which are on the premises.” Burger, 482 U.S. at 694 n.1.
14226 UNITED STATES v. DELGADO
303.024 and 303.025, RSMo . . .” Id. The Missouri statute,
therefore, informs operators of commercial vehicles that they
are subject to inspection. As in Burger, the permissible scope
is limited to the enforcement officers’ inspections of commer-
cial vehicles for regulatory compliance. See Burger, 482 U.S.
at 711-12; see also Castelo, 415 F.3d at 411; Fort, 248 F.3d
at 482.7
[7] We, therefore, conclude that Officer Brooks’ stop of
Delgado’s truck pursuant to the Missouri inspection statute
did not violate the Fourth Amendment.8
7
Unlike the statute in Burger, the Missouri statute does not designate
when the enforcement officers may conduct inspections. See Burger, 482
U.S. at 711. However, as the Sixth Circuit observed, “[s]uch a limitation
would, of course, render the entire inspection scheme unworkable and
meaningless. Trucks operate twenty-four hours a day and the officers
must, necessarily, have the authority to conduct these administrative
inspections at any time. Thus, this difference between the statutes is incon-
sequential.” Dominguez-Prieto, 923 F.2d at 470.
8
Delgado faults the Missouri statute because it does not require the
enforcement officers to have a reasonable belief of a violation similar to
the Tennessee statute in Dominguez-Prieto. However, in Dominguez-
Prieto, the Sixth Circuit opined that the validity of the Tennessee statute
was bolstered because “the inspection scheme in Burger required no level
of suspicion while the Tennessee inspection scheme requires a reasonable
belief that a violation is occurring.” Dominguez-Prieto, 923 F.2d at 469
(internal quotation marks omitted) (emphasis added). The Sixth Circuit did
not establish that reasonable belief of a violation was a requirement under
Burger. Delgado’s reliance on Marshall v. Barlow’s, Inc., 436 U.S. 307
(1978), is also misplaced. In that case, the Supreme Court considered
whether warrantless searches of work areas conducted pursuant to the
Occupational Safety and Health Act of 1970 (OSHA) comported with the
Fourth Amendment. Marshall, 436 U.S. at 309, 311. The Supreme Court
reasoned that “the Secretary attempts to support a conclusion that all busi-
nesses involved in interstate commerce have long been subjected to close
supervision of employee safety and health conditions. . . . It is quite
unconvincing to argue that the imposition of minimum wages and maxi-
mum hours on employers who contracted with the Government under the
Walsh-Healey Act prepared the entirety of American interstate commerce
for regulation of working conditions to the minutest detail.” Id. at 314
 UNITED STATES v. DELGADO 14227
B. Sergeant McMullin’s Search of Delgado’s Truck
Delgado contends that Officer Brooks did not have reason-
able suspicion to contact Sergeant McMullin based solely on
the regulatory violations that Officer Brooks uncovered. Del-
gado asserts that “[Officer Brooks] simply told Sergeant
McMullin that the log books had some errors . . .”
The record reflects a contrary conclusion. Sergeant McMul-
lin testified that Officer Brooks discussed “some discrepan-
cies with the log books”; Cesar’s disqualified driver’s license;
“and [that the CVOs] were having trouble making a determi-
nation of where this one individual had got in the truck, and
they were getting what they thought [were] deceptive
answers.”
Additionally, Officer Brooks testified that he “told [Ser-
geant McMullin] that [he] couldn’t quite figure out the combi-
nation on the log book, they seemed to be hiding something.
It appeared to be more than maybe just . . . driving too long
or falsifying the log, that something wasn’t exactly right,
didn’t appear to be a normal operation.” Officer Brooks was
unable to reconcile Cesar’s and Delgado’s stories. Officer
Brooks informed his partner that he “thought that something
wasn’t exactly right, and they didn’t seem to want to answer
any more questions. . . . [Officer Brooks] told [his partner that
he] was going to call one of the troopers out to let him talk
to them, see what he thought about the situation.” Officer
(emphasis added). However, the Missouri inspection regime does not
implicate “all businesses involved in interstate commerce” or “the entirety
of American interstate commerce.” See id. Instead, inspections are limited
to commercial vehicles. Mo. Ann. Stat. § 304.230.4(2)(2004). Although
commercial vehicles constitute a broad category, commercial vehicles,
unlike “the work area of any employment facility within [OSHA’s] juris-
diction,” Marshall, 436 U.S. at 309, are heavily regulated, thus justifying
warrantless inspections. See Mitchell, 518 F.3d at 751; see also Castelo,
415 F.3d at 410.
14228 UNITED STATES v. DELGADO
Brooks also became suspicious when Delgado closed the driv-
er’s door after entering the sleeping compartment.
Officer Brooks contacted Sergeant McMullin based on his
experience regarding “suspicious activity.” Sergeant McMul-
lin verified that CVOs contact him when there is suspected
criminal activity. Although Officer Brooks did not tell Ser-
geant McMullin that Delgado had a drug courier truck, Ser-
geant McMullin confirmed that CVOs contact him “because
they suspected drug trafficking.” According to Sergeant
McMullin, the log books were “indicators that led [the offi-
cers] to believe there was possible criminal activity.”
Delgado, therefore, fails to provide factual or legal support
for his premise that Officer Brooks was required to have rea-
sonable suspicion before contacting Sergeant McMullin. The
record reflects that Officer Brooks acted on more than just the
log book discrepancies, and instead suspected that, based on
his training and observations of Delgado’s behavior, Delgado
was engaged in potential criminal activity. Officer Brooks,
therefore, had a reasonable basis to contact Sergeant McMul-
lin. See Dominguez-Prieto, 923 F.2d at 470.
[8] In any event, pursuant to Missouri law, Sergeant
McMullin was authorized to inspect commercial vehicles
based on a statute governing a pervasively regulated industry.
See, e.g., State v. Rodriguez, 877 S.W.2d 106, 110 (Mo. 1994)
(en banc) (“Initial discovery of violations of state and federal
laws and regulations prompted the inspectors to conduct a
more thorough search and contact Trooper Henson, who pos-
sessed independent authority to inspect the [defendant’s]
vehicle under state law.”). Thus, Sergeant McMullin had an
independent basis to question Delgado about the log books,
irrespective of Officer Brooks’ actions. See id.
[9] Sergeant McMullin was not prohibited from question-
ing Delgado about matters unrelated to the administrative
inspection, and asking for Delgado’s consent to a search. See
UNITED STATES v. DELGADO 14229
United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007)
(“[M]ere police questioning does not constitute a seizure
unless it prolongs the detention of the individual, and, thus, no
reasonable suspicion is required to justify questioning that
does not prolong the stop.”) (citation and internal quotation
marks omitted); see also United States v. Turvin, 517 F.3d
1097, 1099-1100 (9th Cir. 2008).9 Sergeant McMullin, there-
fore, had a valid basis to search Delgado’s truck, given Delga-
do’s consent. See United States v. McWeeney, 454 F.3d 1030,
1033-34 (9th Cir. 2006) (“Consensual searches are allowed
because it is reasonable for law enforcement agents to con-
duct a search after receiving consent.”) (citation omitted).
[10] We conclude that Sergeant McMullin’s questioning of
Delgado and the search of Delgado’s truck comported with
the Fourth Amendment. See Castelo, 415 F.3d at 412;
Dominguez-Prieto, 923 F.2d at 470.
C. Venue in the Southern District of California
Delgado contends that the government failed to establish
that venue was proper in the Southern District of California.
In analyzing venue issues, we must identify “the nature of
the crime alleged . . .” United States v. Hernandez, 189 F.3d
785, 788 (9th Cir. 1999) (citation omitted). Delgado was con-
9
Delgado’s reliance on United States v. $124,570 U.S. Currency, 873
F.2d 1240 (9th Cir. 1989), and United States v. Bulacan, 156 F.3d 963
(9th Cir. 1998), as amended, is misplaced. Although these cases involved
administrative searches, they dealt with security screenings at federal
buildings and airports, not inspections of pervasively regulated industries.
See Bulacan, 156 F.3d at 965-66; $124,570 U.S. Currency, 873 F.2d at
1241. For pervasively regulated industries, the Burger Court reasoned that
“[t]he discovery of evidence of crimes in the course of an otherwise proper
administrative inspection does not render that search illegal or the admin-
istrative scheme suspect.” Burger, 482 U.S. at 716 (citation omitted).
Thus, to accept Delgado’s premise, we would have to unreasonably limit
the inspection statute to regulatory violations, despite Delgado’s suspi-
cious behavior and Delgado’s consent to a search of the truck.
14230 UNITED STATES v. DELGADO
victed of possession of cocaine with the intent to distribute in
violation of 21 U.S.C. § 841(a)(1) and aiding and abetting in
violation of 18 U.S.C. § 2.
[11] “Possession is a continuing crime, for which venue
properly lies in any district in which the possession took
place.” United States v. Valdez-Santos, 457 F.3d 1044, 1046
(9th Cir. 2006) (citation omitted). Additionally, “[w]e have
upheld venue in a district in which individuals other than the
defendant possessed drugs, so long as the defendant aided and
abetted that possession by his participation in the chain of
possession in another district.” Id. “The government bears the
burden of establishing venue by a preponderance of the evi-
dence.” United States v. Pace, 314 F.3d 344, 349 (9th Cir.
2002), as amended (citation omitted).
[12] Delgado asserts that the government relied exclusively
on Delgado’s confession to establish venue, without proffer-
ing independent corroborating evidence of its veracity. “Al-
though 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 corrobo-
rating evidence.” United States v. Corona-Garcia, 210 F.3d
973, 978 (9th Cir. 2000) (citation omitted). “Although inde-
pendent evidence is not necessary to establish the whole of
the corpus delicti, such evidence must support the essential
facts admitted sufficiently to justify a jury inference of their
truth.” Id. (citation, alteration, and internal quotation marks
omitted). “[A]lthough a confession must be corroborated by
independent evidence, the corroboration need not indepen-
dently establish any element beyond a reasonable doubt, but
must merely fortify the truth of the confession.” United States
v. Lopez-Garcia, 683 F.2d 1226, 1228 (9th Cir. 1982) (cita-
tion, alteration, and internal quotation marks omitted).10
10
We require the corroboration of confessions to prove the core offense.
See United States v. Lopez-Alvarez, 970 F.2d 583, 591 (9th Cir. 1992)
UNITED STATES v. DELGADO 14231
[13] In his statement to Officer Ringgold, Delgado
explained that he picked up the cocaine in San Ysidro, Cali-
fornia pursuant to Sanchotina’s instructions, and that he knew
that the cocaine was in the truck. However, the government
did not rely exclusively on Delgado’s statements. The ship-
ping records reflected that the load was picked up in southern
California. Delgado’s log books also indicated that the trip
started in San Diego, California “when the load was picked
up.” In addition, the government was able to conduct a con-
trolled delivery of the cocaine based on Delgado’s statement.
We, therefore, conclude that Delgado’s confession was suffi-
ciently corroborated, as the government presented “evidence
that fortifies, augments, or supports it—from which a jury
may infer that the defendant’s confession was a trustworthy
admission to core conduct that actually occurred.” Corona-
Garcia, 210 F.3d at 979 (footnote reference omitted).
[14] Delgado further maintains that venue was improper
because there was no evidence that the cocaine was actually
placed into his truck in San Ysidro, California. However, “di-
rect proof of venue is not necessary where circumstantial evi-
dence in the record as a whole supports the inference that the
crime was committed in the district where venue was laid.”
Pace, 314 F.3d at 349 (citation and alteration omitted). Given
Delgado’s statements, the log books, and the shipping
records, we conclude that the government satisfied its burden
(“[T]he state no longer need introduce independent, tangible evidence sup-
porting every element of the corpus delicti. Instead, 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.”). However, “[w]hile venue presents a
question of fact and must be proved by the government, it is not an essen-
tial element of the offense. . . . Thus, the failure to establish venue does
not go to guilt or innocence.” United States v. Kaytso, 868 F.2d 1020,
1021 (9th Cir. 1989), as amended (citation omitted). It appears that Delga-
do’s venue argument places a higher burden on the government than war-
ranted by our precedent. In any event, we conclude that Delgado’s
confession was sufficiently corroborated.
14232 UNITED STATES v. DELGADO
of proving venue by a preponderance of the evidence. See
United States v. Childs, 5 F.3d 1328, 1332 (9th Cir. 1993).11
IV. CONCLUSION
The district court committed no error when it denied Delga-
do’s motion to suppress the drugs discovered in Delgado’s
commercial vehicle. The warrantless administrative search
did not violate the Fourth Amendment. Venue in the Southern
District of California was established by evidence in the
record other than Delgado’s statement of the origin of the trip.
AFFIRMED.
11
Delgado’s reliance on United States v. Corona, 34 F.3d 876 (9th Cir.
1994), is misplaced. In Corona, the defendant was convicted in Nevada of
cocaine offenses, although “[t]he actual distribution . . . took place in Cali-
fornia.” Id. at 878. The defendant “never set foot” in Nevada. Id. at 879.
In contrast, Delgado’s statement, the log books, and shipping records sup-
port the inference that he was present in southern California.