                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 27 2013

                                                                        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. 12-10015

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00414-SMM-1

  v.
                                                 MEMORANDUM *
DARNELLD REBECA COLMAN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
              Stephen M. McNamee, Senior District Judge, Presiding

                     Argued and Submitted February 14, 2013
                            San Francisco, California

Before: REINHARDT and M. SMITH, Circuit Judges, and CARR, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3 .
       **
             The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.

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      Colman appeals her jury conviction for importation of cocaine in violation

of 21 U.S.C. §§ 952.960(a) and 960(b)(1)(B)(ii), and possession with intent to

distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii).

      Colman contends the district court committed reversible error by:

(1) failing to hold a voluntariness hearing to determine the voluntariness of

statements made during her custodial interrogation; (2) permitting the jury

members to view the cocaine seized from her car; (3) using the Ninth Circuit’s

model jury instruction on reasonable doubt; and (4) misstating the Ninth Circuit’s

model jury instruction on possession when reading the written instructions aloud to

the jury members.

      For the following reasons, we uphold Colman’s conviction.

      Confessions in criminal cases are admissible if voluntarily given, but

“[b]efore such confession is received in evidence, the trial judge shall, out of the

presence of the jury, determine any issue as to voluntariness.” 18 U.S.C. § 3501(a).

Despite the mandatory phrasing of the statute, this court has consistently held if

“the issue of admissibility is never raised, the trial court is not required sua sponte

to hold a § 3501(a) voluntariness hearing.” United States v. Smith, 638 F.2d 131,

133 (9th Cir. 1981). Colman did not contest the voluntariness of her statements

prior to or during trial. As such, the district court was not required to hold a



                                            2
voluntariness hearing.“Federal Rule of Criminal Procedure 12(b)(3) requires that

motions to suppress evidence be raised prior to trial; under Rule 12(f) failure to

bring a timely suppression motion constitutes a waiver of the issue.” United States

v. Wright, 215 F.3d 1020, 1026 (9th Cir. 2000).

      With regard to allowing the jury members to view a sample of the cocaine

seized, the issue is whether the district court abused its discretion under Federal

Rule of Evidence 403. A district court properly applies Federal Rule of Evidence

403 “‘[a]s long as it appears from the record as a whole that the trial judge

adequately weighed the probative value and prejudicial effect of proffered

evidence before its admission[.]’” United States v. Verduzco, 373 F.3d 1022, 1029

n.2 (9th Cir. 2004) (quoting United States v.Sangrey, 586 F.3d 1312, 1315 (1978)).

      In this case, the defendant claimed she did not know she had 40 pounds of

cocaine in the roof of her car. The government countered that it would be

extremely difficult for someone to place such a large volume of drugs in the roof of

her car without her knowledge. The district court agreed with the state that the

volume of the drugs seized was probative of the defendant’s knowledge of the

drugs in the car.

      However, aware of the potential prejudicial effect of putting such a large

quantity of cocaine on display before the jury, the district court carefully



                                           3
considered and discussed admission with the parties. Ultimately, the district court

restricted the length of observation to approximately fifteen minutes. During the

viewing, the district court cautioned the jury members that the drugs were not

evidence and were being displayed only to allow the jurors to see what the drugs

taken out of the vehicle looked like. The district court explicitly stated to the jury

members that the drugs were not proof of any fact at issue. Moreover, the district

court stated, both at the time of viewing and in its final instructions, that the drugs

were shown for “demonstrative purposes only.”

      Given the foregoing, we find the district court carefully balanced the

probative value of allowing the jury members to view the drugs against the

potential prejudice to the defendant. As such, the district court did not abuse its

discretion in admitting the evidence.

      With respect to the reasonable doubt instruction, we find the district court

did not err in using the Ninth Circuit’s model jury instruction. “The test for

determining the adequacy of a reasonable doubt instruction is whether the

supplemental instruction detracts from the heavy burden suggested by the use of

the term ‘reasonable doubt’ standing alone.”United States v. Velasquez, 980 F.2d

1275, 1278 (9th Cir. 1992). This court has consistently held that the “firmly

convinced” language in the model instruction does not detract from or imply a



                                            4
lesser burden than the ‘reasonable doubt’ language standing alone. See United

States v. Ruiz, 462 F.3d 1082, 1087 (9th Cir. 2006); See also Velasquez, 980 F.2d

at 1278–79. Accordingly, we find that the district court did not err in using the

model instruction.

      Lastly, we find the district court’s misstatement of the proper written jury

instruction on possession does not amount to reversible error. “On appeal, the

adequacy of jury instructions is not determined by the giving of any one

instruction, but by examining the instructions as a whole.” United States v.

Ancheta, 38 F.3d 1114, 1116 (9th Cir. 1994) (quotations and citation omitted). This

court has previously held that a district court’s misstatement while reading

instructions aloud does not constitute reversible error if it provides proper written

jury instructions to the jury members. Id. at 1117 (stating that the district court’s

misstatement of jury instructions did not amount to plain error because “the court

provided the jury with written instructions that properly stated the government’s

burden of proof”).

      In this case, the district court provided the jury members with proper written

instructions and explicitly suggested that they reference the instructions during

their deliberations. As such, although the district court’s slip of the tongue was

plain error, it is unlikely to have affected the outcome of the proceedings. See



                                           5
United States v. Fuchs, 218 F.3d 957, 962 (9th Cir. 2000). Accordingly, the

misstatement does not constitute reversible error.

AFFIRMED.




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