                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 14 2009

                                                                       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. 08-50534

              Plaintiff - Appellee,              D.C. No. 07-CR-01430-JAH-1

  v.
                                                 MEMORANDUM *
DONALD BARTON DESHOTELS,

              Defendant - Appellant.



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

                          Submitted December 10, 2009 **
                               Pasadena, California


Before: HALL and SILVERMAN, Circuit Judges, and CONLON, *** 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 finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).


        ***
            The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
      Donald Barton Deshotels appeals his convictions for transportation of illegal

aliens and aiding and abetting (8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II)); bringing

in illegal aliens for financial gain and aiding and abetting (8 U.S.C. §

1324(a)(2)(B)(ii) and 18 U.S.C. § 2); and conspiracy to bring in and transport

illegal aliens (8 U.S.C. § 1324(a)(1)(A)(i), (ii), and (v)(I)). We have jurisdiction

pursuant to 28 U.S.C. § 1291, and affirm.

      State Route 94 border patrol agents discovered three illegal aliens in the

trunk of Kenneth Grant’s car after he attempted to pass through the checkpoint.

Minutes later, agents saw Deshotels walking down State Route 94. They

summoned him to the primary inspection area and asked him where he was coming

from; he responded he was in the bushes and then stated he had been dropped off.

He did not respond to an agent’s question whether he had been in the car still

present in secondary inspection. The material witnesses identified Deshotels in a

photographic showup. Two material witnesses identified him in a six-person

photographic lineup and at trial as the car passenger who met them at a prearranged

location on the United States side of the border and put them in the trunk.

      Deshotels contests the admission of his pre-Miranda incriminating

statements and testimony about his silence. Miranda warnings are only required

before custodial interrogation; a defendant’s pre-custodial, pre-Miranda statements


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and silence are admissible. United States v. Bassignani, 575 F.3d 879, 883 (9th

Cir. 2009); United States v. Beckman, 298 F.3d 788, 795 (9th Cir. 2002). The

district court’s determination that Deshotels was not in custody during the

questioning is a mixed question of law and fact warranting de novo review.

Bassignani, 575 F.3d at 883. The totality of the circumstances demonstrates

Deshotels was not in custody. Id. at 883-84. The agents summoned Deshotels to

the primary inspection booth as he attempted to circumvent the checkpoint. He

was questioned in an open area. The questioning was brief, and the agents did not

apply pressure to detain Deshotels or confront him with evidence of guilt. The

district court did not err in denying Deshotels’ motion to suppress his statements or

allowing testimony about his silence.

      Deshotels challenges the material witnesses’ identifications of him as

impermissibly suggestive. The constitutionality of pretrial identification

procedures is reviewed de novo. United States v. Johnson, 820 F.2d 1065, 1072

(9th Cir. 1987). Viewing the totality of the circumstances, the showup and lineups

were not impermissibly suggestive, and the record reflects no substantial likelihood

of misidentification. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985).

The lineup depicts six African American males of about the same age. Deshotels’

darker complexion does not render the lineup impermissibly suggestive. United


                                         -3-
States v. Nash, 946 F.2d 679, 681 (9th Cir. 1991) (photo array was not

impermissibly suggestive despite differences in hairstyles, ethnicity, and

complexions). The material witnesses’ identifications of Deshotels were reliable.

Neil v. Biggers, 409 U.S. 188, 199-200 (1972). They had an opportunity to closely

observe Deshotels as he loaded them into the trunk. Their descriptions of

Deshotels were reasonably accurate and independently consistent. The district

court did not err in denying the motion to suppress the identifications.

      Deshotels challenges the sufficiency of the evidence to support the three

convictions for aiding and abetting bringing in illegal aliens for financial gain. We

review de novo the district court’s denial of a motion under Fed. R. Crim. P. 29.

United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir. 2008). Viewing the

evidence in the light most favorable to the government, sufficient evidence

supports the convictions. Id. The record demonstrates coordination and agreement

between Deshotels and the smugglers in Mexico prior to the material witnesses’

entry into the United States. United States v. Singh, 532 F.3d 1053, 1056, 1059-60

(9th Cir. 2008); United States v. Lopez, 484 F.3d 1186, 1198-1201 (9th Cir. 2007)

(en banc). The smugglers told the material witnesses where to hide after crossing

the border (near a sign 100 meters from the border fence), for whom to wait (two

African American men), and the prearranged signal (“Juan”). Five minutes after


                                         -4-
reaching the sign, Deshotels and Grant arrived and yelled “Juan.” The district

court did not err in denying Deshotels’ three motions for acquittal.

      Deshotels contends the superseding indictment for bringing in aliens for

financial gain violates his speedy trial rights. 18 U.S.C. § 3161(b). The district

court’s application of the speedy trial act is reviewed de novo. United States v.

Lopez-Osuna, 242 F.3d 1191, 1196 (9th Cir. 2000). The bringing in aliens for

financial gain charge was new in the superseding indictment; it was not included in

the original complaint or indictment. Transportation of illegal aliens and bringing

in illegal aliens for financial gain are distinct offenses under § 1324. Lopez, 484

F.3d at 1195-96. The district court did not err in denying Deshotels’ motion to

dismiss the superseding indictment.

      AFFIRMED.




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