United States v. Sergio Moreno-Flores, United States of America v. Sergio Alberto Rodriguez-Molina

Opinion by Judge T.G. NELSON; Partial Concurrence and Partial Dissent by Judge FERGUSON.

I

OVERVIEW

Sergio Moreno-Flores (Moreno-Flores) and Sergio Alberto Rodriguez-Molina (Rodriguez-Molina) appeal their jury convictions for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846 (count one), and attempt to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841 (a)(1) and 846 (count two). Moreno-Flores claims that the district court erred in refusing to suppress certain post-arrest statements because they were obtained in violation of his Miranda rights. Rodriguez-Molina argues that there was insufficient evidence to convict him on both counts of the indictment. We affirm the convictions of both defendants.

II

FACTS AND PROCEDURAL HISTORY

The evidence viewed in the light most favorable to the Government is as follows. Federal agents received information that a black Ford Taurus and a white Chevrolet Celebrity were loaded with cocaine and would be crossing into the United States from Mexico through the port of entry at Nogales, Arizona on July 8, 1992. After establishing surveillance at that location, the agents observed…

concurring in part and dissenting in part.

I dissent in the Moreno-Flores case and concur in the Rodriguez-Molina case. Once a defendant invokes his right to remain silent, it must be scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 104 , 96 S.Ct. 321, 326-27 , 46 L.Ed.2d 313 (1975). All interrogation must cease. Interrogation is express questioning or its “functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01 , 100 S.Ct. 1682, 1689-90 , 64 L.Ed.2d 297 (1980). Any statements or questions that are reasonably likely to elicit an incriminating response are prohibited. 446 U.S. at 301 , 100 S.Ct. at 1689-90 . The focus is on the defendant’s perception of the officer’s statements, although the intent of the officer is relevant. 446 U.S. at 301 , 100 S.Ct. at 1689-90 ; United States v. Disla, 805 F.2d 1340, 1347 (9th Cir.1986). “Interrogation tactics need not be violent or physical in nature to be deemed coercive. Psychological coercion is equally likely to result in involuntary statements, and thus is also forbidden.” Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 870 , 116 L.Ed.2d 776 (1992).

When Moreno-Flores was…

33 F.3d 1164 UNITED STATES of America, Plaintiff-Appellee, v. Sergio MORENO-FLORES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sergio Alberto RODRIGUEZ-MOLINA, Defendant-Appellant. Nos. 93-10222, 93-10223. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 13, 1994. Decided Aug. 31, 1994. Francisco Leon, Tucson, AZ, for defendant-appellant Moreno-Flores; and Antonio F. Riojas, Richards & Pennington, Tucson, AZ, for defendant-appellant Rodriguez-Molina. Thomas L. Fink, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee. Appeals from the United States District Court for the District of Arizona. Before: FERGUSON, NOONAN, and T.G. NELSON, Circuit Judges. Opinion by Judge T.G. NELSON; Partial Concurrence and Partial Dissent by Judge FERGUSON. T.G. NELSON, Circuit Judge: 1 * OVERVIEW 2 Sergio Moreno-Flores (Moreno-Flores) and Sergio Alberto Rodriguez-Molina (Rodriguez-Molina) appeal their jury convictions for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846 (count one), and attempt to possess cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841 (a)(1) and 846 (count two).…