                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 23 2011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. 11-50039

              Plaintiff - Appellee,               D.C. No. 3:10-cr-01754-AJB-1

  v.
                                                  MEMORANDUM *
AGUSTIN VASQUEZ-OLEA,

              Defendant - Appellant.



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

                      Argued and Submitted December 9, 2011
                               Pasadena, California

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

       The district court did not abuse its discretion in determining that Agent

Tobar, a native Spanish speaker who was also fluent in English, and who had

received additional training in Spanish translation from his employer, was qualified

to verify the accuracy of the phone call translation. See United States v. Abonce-



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Barrera, 257 F.3d 959, 964–65 (9th Cir. 2001). Even if the district court had erred

in accepting Agent Tobar’s qualifications, any such error was harmless because

Vasquez-Olea has not alleged any inaccuracy in the translation. See United States

v. Pena-Espinoza, 47 F.3d 356, 360 (9th Cir. 1995).

      The district court did not abuse its discretion in holding that the

government’s notice stating that Agent Tobar would testify to the “substance” of

the recorded phone call and providing a short summary of his knowledge of

Spanish met the requirements of Rule 16 of the Federal Rules of Criminal

Procedure, because the notice adequately “describe[s] the witness’s opinions, the

bases and reasons for those opinions, and the witness’s qualifications.” Fed. R.

Crim. P. 16(a)(1)(G). Even if the notice had been defective, Vasquez-Olea has not

shown a reasonable likelihood that a different verdict would have resulted if he had

received earlier or more detailed notice. See United States v. Figueroa-Lopez, 125

F.3d 1241, 1247 (9th Cir. 1997).

      The district court adequately remedied any untimeliness in the government’s

production of the recorded jail cell call to Vasquez-Olea by offering him a

continuance, which he declined. See Fed. R. Crim. P. 16(d)(2)(B). Therefore, any

untimeliness under Rule 16 was harmless. See Figueroa-Lopez, 125 F.3d at 1247.




                                          2
      The district court did not err in admitting Vasquez-Olea’s admissions made

in the field because Agent Barr’s apprehension of Vasquez-Olea and his

companions was a non-custodial Terry stop occasioned by reasonable suspicion,

and the questioning was reasonably limited in scope and duration to confirming

that suspicion. See United States v. Cervantes-Flores, 421 F.3d 825, 829–30 (9th

Cir. 2005) (per curiam), abrogated on other grounds by Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527, 2532 (2009). Agent Barr’s use of reasonable

force to avoid the risk of a physical confrontation or potential flight, including the

temporary display of a service weapon, did not convert the Terry stop into

custodial arrest. See United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir.

1987); United States v. Greene, 783 F.2d 1364, 1367–68 (9th Cir. 1986); see also

Cervantes-Flores, 421 F.3d at 830.

      Vasquez-Olea’s admissions, which were contained in three separate

statements, were mutually corroborated by each other and their proximity in time

to one another. See United States v. Hernandez, 105 F.3d 1330, 1332–33 (9th Cir.

1997). The admissions were further corroborated by evidence of the mode of

Vasquez-Olea’s entry to the United States and the circumstances under which

Agent Barr tracked and discovered the group, including the activated sensors

beginning at the border, trail of muddy footprints down a known smuggling trail,


                                           3
and remote location in which the group was hiding when apprehended. See United

States v. Garcia-Villegas, 575 F.3d 949, 951 (9th Cir. 2009). Because a rational

factfinder could find that the element of alienage was established beyond a

reasonable doubt, Vasquez-Olea’s sufficiency of the evidence claim fails. See

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

Virginia, 443 U.S. 307, 319 (1979)).

      AFFIRMED.




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