                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 14 2011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. 10-10208

              Plaintiff - Appellee,              D.C. No. 4:08-cr-00836-CW-4

  v.
                                                 MEMORANDUM *
PABLO PENALOZA ESPINO, AKA
Pablo Penaloza Espinol, AKA Pablo
Espino Penaloza,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                             Submitted July 12, 2011 **
                             San Francisco, California

Before: SILVERMAN and GRABER, Circuit Judges, and WRIGHT, District
Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Otis D. Wright, II, United States District Judge for the
Central District of California, sitting by designation.
      Defendant - Appellant Pablo Penaloza Espino stands convicted of conspiracy

to possess with intent to distribute and to distribute methamphetamine, 21 U.S.C.

§ 846; possession with intent to distribute and distribution of methamphetamine, 21

U.S.C. § 841(a)(1); and using, carrying, and possessing a firearm in connection with

a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(I), (c)(2). Espino raises three

issues on appeal. We address each in turn.

      First, Espino asserts that the district court erred by failing to suppress his post-

arrest statement, which Espino claims was taken in violation of his right to prompt

presentment before a federal magistrate judge. Fed. R. Crim. P. 5(a); see also United

States v. Redlightning, 624 F.3d 1090, 1106 (9th Cir. 2010), cert. denied, 2011 WL

1637934 (U.S. May 31, 2011) (No. 10-10219). We review the district court’s denial

of the motion to suppress de novo and the factual findings for clear error. United

States v. Ewing, 638 F.3d 1226, 1229 (9th Cir. 2011).

      Here, Espino was arrested at approximately 8:00 p.m. on November 5, 2008,

and was detained for violation of four California criminal statutes. At approximately

11:30 a.m. on November 6, 2008, well beyond the six-hour “safe harbor” period, both

a federal and state officer commenced an interview of Espino. During this interview,

Espino admitted that he had been arrested in a vehicle in which both

methamphetamine and a handgun were found, although he denied that either was his.


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On the afternoon of November 6, 2008, a county magistrate judge approved a

certificate of probable cause authorizing Espino’s detention for violation of the state

statutes. Thereafter, on November 7, 2008, the United States Attorney’s Office filed

a complaint against Espino. Espino appeared before a federal magistrate judge on

November 10, 2008.

      While there was an obvious delay between the time that Espino was arrested on

November 5, 2008, and the time that he was presented to a federal magistrate judge

on November 10, 2008, because Espino’s interview occurred while he was in state

custody and before he was federally charged, the delay cannot be found unreasonable

under the federal procedural scheme unless Espino can prove actual collusion between

the federal and state officers. None of the abovementioned facts suggests actual

collusion, nor do the arguments advanced in Espino’s briefs present any evidence

from which we conclude that the officers possessed “a deliberate intent to deprive

[Espino] of [his] federal procedural rights.” See United States v. Michaud, 268 F.3d

728, 735 (9th Cir. 2001).

      Second, Espino challenges the district court’s denial of his motion for acquittal

as to his conviction for possession of a firearm in furtherance of a drug trafficking

crime. Espino asserts that there was insufficient evidence to support his conviction.

The Court of Appeals must affirm a conviction if, “‘viewing the evidence in the light


                                          3
most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” United States v. Inzunza,

638 F.3d 1006, 1013 (9th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). Law enforcement officers searched the informant’s vehicle prior to the

controlled drug purchase transaction and found neither methamphetamine nor a

firearm. The officers kept the informant and the vehicle under surveillance during the

entire transaction. Ultimately, the officers found a loaded Smith & Wesson nine

millimeter semiautomatic handgun in the backseat of the informant’s vehicle, where

Espino was the only occupant. The firearm was located close to Espino’s feet and in

plain view. Based on this evidence, a rational trier of fact could have concluded

beyond a reasonable doubt that Espino possessed a firearm in furtherance of a drug

trafficking crime.

      Third, Espino claims that the district court abused its discretion in permitting

a rereading of the informant’s testimony without a specific jury admonition. We

review the district court’s decision to replay or reread witness testimony during jury

deliberations for an abuse of discretion. United States v. Richard, 504 F.3d 1109,

1113 (9th Cir. 2007). “Under the abuse of discretion standard, we will not reverse

unless we have a definite and firm conviction that the district court committed a clear

error in judgment.” Id. (internal quotation marks omitted).


                                          4
      Here, upon the jury’s request, the district court permitted a rereading of the

informant’s entire testimony. See id. at 1114 (stating that “the jury should ordinarily

be provided with the witness’s entire testimony – i.e., direct and cross-examination”).

The rereading was conducted in open court, with all parties present, including Espino.

See id. (“[W]e have consistently noted that it is preferable to have the testimony

reheard (or reread) in open court with all parties present.”). Upon Espino’s request

for an additional cautionary instruction, the district court invited Espino to submit a

proposed jury instruction for review, which Espino failed to do. We find no clear

error or abuse of discretion.

      AFFIRMED.




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