United States v. Zamora
This text of United States v. Zamora (United States v. Zamora) 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.
Opinion
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 26 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-1618 D.C. No. Plaintiff - Appellee, 2:20-cr-00160-RMP-1 v. MEMORANDUM* MERCED ZAMORA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted September 13, 2024 Seattle, Washington
Before: W. FLETCHER and SUNG, Circuit Judges, and RAKOFF, District Judge.**
Defendant-Appellant Merced Zamora appeals the district court’s denial of
several motions related to his criminal trial. We have jurisdiction under 28 U.S.C.
§ 1291. We affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. On the final day of trial, Zamora argued for the first time that Count Three
of the superseding indictment should be dismissed under Rule 29 of the Federal
Rules of Criminal Procedure for “missing the in furtherance of [any such crime]
elements” of 18 U.S.C. § 924(c)(1)(A). The Government confused the two clauses
of § 924(c)(1)(A) by charging defendant with “possess[ing]” a firearm (part of the
second clause) “during and in relation to a drug trafficking crime” (part of the first
clause). Although Zamora cited Rule 29 in support of his argument, the district
court observed that he did “not challenge the sufficiency of the evidence to
establish his guilt under Count Three of the superseding indictment,” and that his
motion was thus “more properly construed as a motion to dismiss pursuant to Rule
12 because it alleges a defect in the superseding indictment.” “The substance of the
motion, not its form, controls its disposition,” and we agree with the district court
that Zamora’s motion is best understood as seeking relief under Rule 12 of the
Federal Rules of Criminal Procedure. Andersen v. United States, 298 F.3d 804, 807
(9th Cir. 2002).
Zamora’s motion fails even if properly construed as a Rule 12 motion. Rule
12 provides that a defect in the indictment “must be raised by pretrial motion.”
Fed. R. Crim. P. 12(b)(3)(B)(v) (emphasis added). While Rule 12 treats a motion
as “untimely” if “a party does not meet the deadline for making a Rule 12(b)(3)
motion,” it also provides that “a court may consider the defense, objection, or
2 request if the party shows good cause.” Fed. R. Crim. P. 12(c)(3). But Zamora’s
counsel repeatedly declined opportunities to identify good cause excusing his
untimeliness. We thus affirm the district court’s denial of his motion as untimely.
Zamora next argues that the district court erred by denying his motion to
suppress evidence obtained under two search warrants.1 He alleges that deputies
from the Spokane County Sheriff’s Office did not have authority under state law to
impound the vehicle in question and thus violated his Fourth Amendment rights by
conducting an inventory search. This Court reviews a district court’s denial of a
motion to suppress evidence de novo and any underlying factual findings for clear
error. United States v. Torres, 828 F.3d 1113, 1118 (9th Cir. 2016). “Once a
vehicle is impounded, police may conduct an inventory search.” United States v.
Maddox, 614 F.3d 1046, 1049 (9th Cir. 2010). To determine whether evidence
secured through the inventory search of a vehicle is admissible, we must evaluate
whether the officer complied with state law governing impoundments and
inventory searches. United States v. Wanless, 882 F.2d 1459, 1463–64 (9th Cir.
1989).
In this case, Deputy Mitchell Othmer of the Spokane County Sheriff’s
1 Zamora references the search warrant for the cellphone and tablet, but the Government was not able to extract any data from these sources. Zamora’s challenge practically focuses, then, on the evidence discovered during the vehicle’s search.
3 Office impounded the car because Zamora “committed a traffic offense for which
the legislature has expressly authorized impoundment,” a circumstance in which a
vehicle may be impounded under Washington law. State v. Tyler, 302 P.3d 165,
170 (Wash. 2013); see also Wash. Rev. Code § 46.55.113. Deputy Othmer also
considered “reasonable alternatives,” as required by Washington law. Tyler, 302
P.3d at 170. Washington courts have approved of impoundments in similar
circumstances. See State v. Peterson, 964 P.2d 1231, 1232–33 (Wash. App. 1998).2
The district court did not err by denying Zamora’s motion to suppress.
Zamora’s other arguments, which generally assert that the district court
abused its discretion, also fail. First, Zamora challenges the district court’s
exclusion as hearsay of certain statements he made to Deputy Othmer during the
traffic stop. Zamora offers no legal support for his argument that his statements can
be introduced for their effect on a listener who did not hear them, and the district
court properly excluded these statements as hearsay. Second, Zamora has not
2 Zamora also argues that Deputy Othmer’s inventory search was pretextual. The district court found Deputy Othmer’s testimony to be credible and concluded that his administrative purpose for searching the vehicle was “well supported by the record,” without making any finding as to his subjective expectation. When a district court hears testimony, we give special deference to its credibility determinations and review factual findings for clear error. See United States v. Arreguin, 735 F.3d 1168, 1174 (9th Cir. 2013). Even if Deputy Othmer subjectively expected to find evidence of criminal activity in Zamora’s vehicle, the court correctly concluded that this “would not invalidate an otherwise reasonable inventory search.” United States v. Garay, 938 F.3d 1108, 1112 (9th Cir. 2019).
4 shown the “clear, manifest, or undue prejudice” required to warrant reversal of the
district court’s denial of his motion to sever Count Two of the superseding
indictment. See United States v. VonWillie, 59 F.3d 922, 930 (9th Cir. 1995)
(quotation marks omitted). Indeed, the evidence of Zamora’s “guilt . . . was
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