United States v. Miguel Alvarez-Valenzuela

231 F.3d 1198, 2000 Daily Journal DAR 11935, 2000 Cal. Daily Op. Serv. 8988, 2000 U.S. App. LEXIS 27873, 2000 WL 1672643
CourtCourt of Appeals for the Ninth Circuit
DecidedNovember 8, 2000
Docket99-10374
StatusPublished
Cited by115 cases

This text of 231 F.3d 1198 (United States v. Miguel Alvarez-Valenzuela) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Miguel Alvarez-Valenzuela, 231 F.3d 1198, 2000 Daily Journal DAR 11935, 2000 Cal. Daily Op. Serv. 8988, 2000 U.S. App. LEXIS 27873, 2000 WL 1672643 (9th Cir. 2000).

Opinions

Opinion by Judge HARLINGTON, Jr.; Dissent by Jhdge KLEINFELD.

WOOD, Circuit Judge:

In June 1999 the grand jury returned an indictment charging defendant-appellant Miguel Alvarez-Valenzuela (“Alvarez”) and two co-defendants with conspiracy to import marijuana; importation of marijuana; conspiracy to possess marijuana with intent to distribute; and use, carrying, or possession of a gun in relation to a drug-trafficking crime.2 Alvarez and his co-defendants were arrested on January 29, 1999 by Border Patrol agents in the desert near Douglas, Arizona about two miles north of the United States-Mexico border. At the time of their arrest, the men were carrying eighty-three pounds of marijuana. Agents also discovered a .380 caliber pistol on the ground near the three men. In May 1999, Alvarez and co-defendant Francisco Martines-Renteria (“Martines”) were found guilty by a jury on all counts, but only the firearms charge was seriously contested. The third co-defendant, Rodolfo Bejarano-Ponce (“Bejarano”), pled guilty to all five counts pursuant to a plea agreement and testified as a government witness against Alvarez and Martines. Only Alvarez is involved in this appeal.3 No issue except the gun issue is raised. Alvarez first challenges the sufficiency of the evidence to support the firearms conviction and, second, the district court’s response to a jury question regarding a jury instruction based on Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).

As we begin a review of the first challenge, it would be helpful to resolve our standard of review, which is disputed. Alvarez made a motion to dismiss at the end of the government’s case, which the district court denied. His motion was not renewed at the end of trial. The motion was not identified as a motion for judgment of acquittal under Fed.R.Crim.P. 29(a), but the parties have treated it as one. In this situation of non-renewal the government argues that Alvarez has effectively waived his objection, relying on United States v. Kuball, 976 F.2d 529, 531 (9th Cir.1992). Alvarez relies on United States v. Garcia-Guizar, 160 F.3d 511, 516-17 (9th Cir.1998), and related cases to support his argument that a de novo standard of review applies.

Motions for acquittal are made pursuant to Rule 29(a), so we shall examine the rule first, but it is of little help in this situation. It provides in relevant part that a judgment of acquittal may be entered after the evidence on either side is closed if the evidence is insufficient to sustain a conviction. The rule does not mention any requirement that a motion made by a defendant at the close of the government’s evidence must be renewed at the close of all the evidence or, if not, what effect non-renewal may have on the standard of review.

After reviewing the cases cited by both parties, we interpret Rule 29(a) to suggest that failure to renew the motion at the end of trial does not mean that it has been waived, but only that a higher standard of review is to be imposed. This [1201]*1201court may review an unrenewed motion for judgment of acquittal, but only to prevent a manifest miscarriage of justice, or for plain error. See United States v. Vizcarra-Martinez, 66 F.3d 1006, 1010 (9th Cir.1995); see also Garcia-Guizar, 160 F.3d at 516. The cases of both parties support that interpretation, but the difficulty is in its application, as noted in Vizcarra-Martinez, 66 F.3d at 1010. The court would be reluctant to sustain a conviction if it could be clearly seen from the record that the evidence was insufficient. See id. at 1010. However, even in a case in which the defendant has made all the proper motions, this court will not reverse in the absence of a clear showing of insufficiency. See id. If any rational trier of fact could have found the evidence sufficient, we must affirm. See id. The court in Vizcar-rar-Martinez could not envision a case “in which the result would be different because of the application of one rather than the other of the standards of review.” Id. That court escaped having to determine whether there may be any practical difference between the two standards because it found that the usual standard, which is applied when all appropriate motions are made, had been satisfied. See id.

There is another aspect of the non-renewal of the motion for acquittal raised by Alvarez. He claims, relying on United States v. Palmer, 3 F.3d 300, 304 (9th Cir.1993), and United States v. Pennington, 20 F.3d 593, 597 n. 2 (5th Cir.1994), that if the record suggests that at the time the original motion was denied it would be futile to raise it again, it need not be renewed. The government points out that Palmer is inapposite because it concerned a party’s failure to renew a pretrial motion under an evidentiary rule. We turn then to the Fifth Circuit’s decision in Pennington, a sufficiency-of-the-evidence case in which the defendants did not renew their motions for acquittal at the close of all the evidence. The Fifth Circuit held that the defendants had adequately preserved then-objection despite the fact that their motions for acquittal were not renewed at the conclusion of the defense evidence, because the actions of the district court rendered the renewal of the motions an empty ritual. See Pennington, 20 F.3d at 597 n. 2.

The record in the present case reveals that, at the close of the government’s case, there was actually no motion made for acquittal on the basis of insufficiency of the evidence, only a perfunctory “motion to dismiss generally” made by counsel for Martines. Counsel for Alvarez joined the motion of the other counsel. Neither counsel advanced any argument on behalf of the motion.

In view of the perfunctory motion and its non-renewal, the district court was given little help. In this court, the arguments have been extensive, but the district court, not having the benefit of those arguments, leaves no record of its reasoning in denying the motion. As did the court in Vizcarra-Martinez, 66 F.3d at 1010, we will leave for another day any difference that there may be in the two standards of review. When ruling on the motion, the district judge stated, “I’ll deny the motions, which preserves them anyway,” suggesting that renewal would be unnecessary. Following this comment, the defense presented its evidence, which consisted solely of Alvarez’s brief testimony in his own defense. In any event, because we conclude that there is adequate evidence to support Alvarez’s conviction under the usual standard, our analysis is unaffected by any practical difference between the standards.

In reviewing the sufficiency of the evidence, there are certain ground rules that both parties acknowledge.

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231 F.3d 1198, 2000 Daily Journal DAR 11935, 2000 Cal. Daily Op. Serv. 8988, 2000 U.S. App. LEXIS 27873, 2000 WL 1672643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-miguel-alvarez-valenzuela-ca9-2000.