                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 13 2010

                                                                       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. 09-50505

              Plaintiff - Appellee,              D.C. No. 3:09-cr-01440-LAB-1

  v.
                                                 MEMORANDUM *
CYNTHIA MARIE BARBOZA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                            Submitted October 5, 2010 **
                               Pasadena, California

Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.

       Cynthia Marie Barboza (“Barboza”) appeals her conviction for importation

of marijuana and possession of marijuana with intent to distribute. She asserts that

certain statements she gave to Immigration and Customs Enforcement (“ICE”)


        *
             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).
agents following her arrest were involuntary and thus should not have been

admitted at trial.

       A trial court’s conclusion that a statement was made voluntarily “must

appear from the record with unmistakable clarity.” United States v. Brown, 575

F.2d 746, 748 (9th Cir. 1978) (quoting Sims v. Georgia, 385 U.S. 538, 544 (1967))

(internal quotation marks omitted). The district court properly made a

determination that Barboza’s statements were voluntary. See United States v.

Jenkins, 785 F.2d 1387, 1394 (9th Cir. 1986) (citing Jackson v. Denno, 378 U.S.

368, 391 (1964)); see also Sims, 385 U.S. at 544 (holding that the district court

“need not make formal findings of fact or write an opinion” on voluntariness so

long as its conclusion “appear[s] from the record with unmistakable clarity.”). The

district court found that Barboza “[had not] offered any evidence to [the court] or

any declaration that anything she said was the product of her will being

overborne,” Trial Transcript at 191, and the evidence submitted by Barboza,

including a declaration from her counsel and a video recording of her ICE

interview, was insufficient to show “that anything that was said was the product of

coercion or improper tactics by border agents.” Trial Transcript at 192.

“[C]oercive police activity is a necessary predicate to the finding that a confession




                                          2
is not ‘voluntary’ within the meaning of the Due Process Clause . . . .” Colorado v.

Connelly, 479 U.S. 157, 167 (1986).

      “We review de novo the voluntariness of a criminal suspect’s statements to

law enforcement officers.” United States v. Okafor, 285 F.3d 842, 846–47 (9th

Cir. 2002). The district court’s factual findings underlying its determination of

voluntariness are reviewed for clear error. United States v. Haswood, 350 F.3d

1024, 1027 (9th Cir. 2003).

      The district court’s finding is entirely supported by the law. As we have

explained,

      A confession is involuntary if coerced either by physical intimidation
      or psychological pressure. In determining whether a defendant’s
      confession was voluntary, the question is whether the defendant’s will
      was overborne at the time he confessed. . . . Therefore, we must
      consider the totality of the circumstances involved and their effect
      upon the will of the defendant.

United States v. Crawford, 372 F.3d 1048, 1060 (9th Cir. 2004) (internal citations

and quotation marks omitted). There was no physical intimidation or

psychological pressure in this case. Barboza was questioned for 20 minutes in a

brightly lit office. The ICE agents sat several feet away from her, and were polite

and respectful. They ceased questioning when she asked for an attorney and

reassured her that she was within her rights in refusing to speak. Although



                                          3
Barboza was held for nine hours prior to her interview, the delay was largely a

result of Barboza’s self-reported high blood pressure condition, which required a

trip to the hospital. Thus, the totality of the circumstances makes clear that

Barboza’s statements were given voluntarily.

      AFFIRMED.




                                           4
