United States v. Agustin Vasquez-Olea , 463 F. App'x 704 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 23 2011
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. 11-50039
Plaintiff - Appellee, D.C. No. 3:10-cr-01754-AJB-1
v.
MEMORANDUM *
AGUSTIN VASQUEZ-OLEA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted December 9, 2011
Pasadena, California
Before: D.W. NELSON, GOULD, and IKUTA, Circuit Judges.
The district court did not abuse its discretion in determining that Agent
Tobar, a native Spanish speaker who was also fluent in English, and who had
received additional training in Spanish translation from his employer, was qualified
to verify the accuracy of the phone call translation. See United States v. Abonce-
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Barrera, 257 F.3d 959, 964–65 (9th Cir. 2001). Even if the district court had erred
in accepting Agent Tobar’s qualifications, any such error was harmless because
Vasquez-Olea has not alleged any inaccuracy in the translation. See United States
v. Pena-Espinoza, 47 F.3d 356, 360 (9th Cir. 1995).
The district court did not abuse its discretion in holding that the
government’s notice stating that Agent Tobar would testify to the “substance” of
the recorded phone call and providing a short summary of his knowledge of
Spanish met the requirements of Rule 16 of the Federal Rules of Criminal
Procedure, because the notice adequately “describe[s] the witness’s opinions, the
bases and reasons for those opinions, and the witness’s qualifications.” Fed. R.
Crim. P. 16(a)(1)(G). Even if the notice had been defective, Vasquez-Olea has not
shown a reasonable likelihood that a different verdict would have resulted if he had
received earlier or more detailed notice. See United States v. Figueroa-Lopez, 125
F.3d 1241, 1247 (9th Cir. 1997).
The district court adequately remedied any untimeliness in the government’s
production of the recorded jail cell call to Vasquez-Olea by offering him a
continuance, which he declined. See Fed. R. Crim. P. 16(d)(2)(B). Therefore, any
untimeliness under Rule 16 was harmless. See Figueroa-Lopez, 125 F.3d at 1247.
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The district court did not err in admitting Vasquez-Olea’s admissions made
in the field because Agent Barr’s apprehension of Vasquez-Olea and his
companions was a non-custodial Terry stop occasioned by reasonable suspicion,
and the questioning was reasonably limited in scope and duration to confirming
that suspicion. See United States v. Cervantes-Flores, 421 F.3d 825, 829–30 (9th
Cir. 2005) (per curiam), abrogated on other grounds by Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527, 2532 (2009). Agent Barr’s use of reasonable
force to avoid the risk of a physical confrontation or potential flight, including the
temporary display of a service weapon, did not convert the Terry stop into
custodial arrest. See United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir.
1987); United States v. Greene, 783 F.2d 1364, 1367–68 (9th Cir. 1986); see also
Cervantes-Flores, 421 F.3d at 830.
Vasquez-Olea’s admissions, which were contained in three separate
statements, were mutually corroborated by each other and their proximity in time
to one another. See United States v. Hernandez, 105 F.3d 1330, 1332–33 (9th Cir.
1997). The admissions were further corroborated by evidence of the mode of
Vasquez-Olea’s entry to the United States and the circumstances under which
Agent Barr tracked and discovered the group, including the activated sensors
beginning at the border, trail of muddy footprints down a known smuggling trail,
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and remote location in which the group was hiding when apprehended. See United
States v. Garcia-Villegas, 575 F.3d 949, 951 (9th Cir. 2009). Because a rational
factfinder could find that the element of alienage was established beyond a
reasonable doubt, Vasquez-Olea’s sufficiency of the evidence claim fails. See
United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir. 2008) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
AFFIRMED.
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