                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                              FILED
                            FOR THE NINTH CIRCUIT                                FEB 07 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 09-10352

              Plaintiff - Appellee,              D.C. No. 4:08-cr-00054-JMR-
                                                 CRP-1
  v.

RANDY PATES,                                     MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   John M. Roll, Chief District Judge, Presiding

                    Argued and Submitted November 29, 2010
                            San Francisco, California

Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.

       This is an appeal from a judgment of conviction and sentence for possession

with intent to distribute marijuana, conspiracy to import marijuana, importation of

marijuana, and conspiracy to possess with intent to distribute marijuana in




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
violation of 21 U.S.C. §§ 841, 846, 952 and 960. The district court sentenced

Pates to 90 months imprisonment, followed by 48 months of supervised release.

      Pates’ central position in this appeal is related to his low IQ score. He first

contends that the district court erred in finding that his written waiver of Miranda

rights was voluntary and knowing. Before signing the waiver, he had the rights

explained to him and indicated that he understood them. There was no evidence

that any mental deficiencies or insufficiencies affected his understanding. Nor was

there any evidence that his confession, which followed the waiver, was anything

other than voluntary. The fact that Agent Perez accused Pates of lying does not

itself make the questioning coercive. United States v. Wolf, 813 F.2d 970, 975 (9th

Cir. 1987). There was no error.

      Although the government provided the defense with a copy of Agent Perez’s

report of his interview of Pates, the defense asked, in addition, for Perez’s

handwritten notes. The district court did not err in declining to require the

government to produce the notes. The district court pointed out that all of the

matters contained in the notes of Perez’s interview with the defendant were in the

report. Therefore, even assuming that the notes were “statements” within the

meaning of the Jencks Act, the defendant did not suffer any prejudice.




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      Moreover, Agent Perez used the notes to complete the report and it was the

report that was intended to be communicated to others. For that reason, we have

explained that in a typical case only the formal interview report, through which the

agent intends to communicate to others, will be a “statement” under the Jencks Act.

United States v. Reed, 575 F.3d 900, 921 (9th Cir. 2009) (quoting United States v.

Griffin, 659 F.2d 932, 938 n.4 (9th Cir. 1981)). An agent’s handwritten notes are

usually too incomplete to constitute statements envisioned by the Jencks Act.

Griffin, 659 F.2d at 937. This case is unlike United States v. Johnson, 521 F.2d

1318 (9th Cir. 1975), upon which Pates relies. In Johnson, we held that the district

court erred in not inspecting the agent’s handwritten notes in camera because we

said that the court might have decided that the agent’s notes were “adopted and

approved” by him. Id. at 1319. Here, only the report itself was “adopted and

approved” by Perez as his own statement.

      The district court did not err in refusing to permit Pates’ sister to testify

about his mental deficiencies, as she was in no position to testify as to the

defendant’s understanding of the crime with which he was charged and convicted.

The district court also did not err in concluding that the “nine steps of

interrogation” were irrelevant because Agent Perez did not use them during the

interview. Therefore, the district court did not abuse its discretion in limiting


                                           3
defense counsel’s cross-examination of Agent Perez. Similarly, David Mendham’s

testimony was appropriately limited to exclude events that occurred almost a year

earlier, and had no relevance to defendant’s case.

      There was no error in refusing to give a diminished capacity instruction, for

as the district court observed, there is no indication that the defendant’s mental

condition affected his ability to understand the crime at the time it was committed.

For similar reasons, the district court did not err in finding that a downward

departure was unwarranted. The sentence was reasonable.

      AFFIRMED.




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