                                                                           FILED
                         NOT FOR PUBLICATION                                DEC 14 2009
                    UNITED STATES COURT OF APPEALS
                                                                       MOLLY C. DWYER, CLERK
                         FOR THE NINTH CIRCUIT                           U .S. C O U R T OF APPE ALS




UNITED STATES OF AMERICA,                        No. 08-50547

             Plaintiff - Appellee,               D.C. No. 3:08-cr-01456-LAB-1

  v.
                                                 MEMORANDUM *
KERMIT PEREDA-REBOLLO,

             Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 08-50552

             Plaintiff - Appellee,               D.C. No. 3:08-cr-01456-LAB-2

  v.
                                                 MEMORANDUM *
DANNY PRECIADO,

             Defendant - Appellant.



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

                          Submitted December 10, 2009 **
                              Pasadena, California


        *
             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).
Before: HALL and SILVERMAN, Circuit Judges, and CONLON, *** District
Judge.

      Kermit Pereda-Rebollo and Danny Preciado appeal from their convictions

under 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(ii) for transportation of illegal aliens.

Both contend the district court erred by denying them an evidentiary hearing and

denying their motion to suppress evidence obtained during an investigatory stop of

their vehicle. Pereda-Rebollo appeals the denial of his motion to dismiss the

indictment and motion to suppress post-arrest statements. Preciado appeals the

denial of his motion for judgment of acquittal. We have jurisdiction under 28

U.S.C. § 1291, and we affirm. The parties are familiar with the facts and

procedural history, so we repeat them here only as necessary.

      The district court did not err in denying Pereda-Rebollo’s motion to dismiss

the indictment because of improper grand jury instructions. The challenged

instructions are constitutional. See United States v. Cortez-Rivera, 454 F.3d 1038,

1040-41 (9th Cir. 2006); United States v. Navarro-Vargas, 408 F.3d 1184, 1202-06

(9th Cir. 2005) (en banc).




        ***
            The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.

                                           2
      Pereda-Rebollo argues his post-Miranda statements should have been

suppressed because the administrative warnings and Miranda warnings given to

him in quick succession were contradictory. We review the adequacy of Miranda

warnings de novo, United States v. San Juan-Cruz, 314 F.3d 384, 387 (9th Cir.

2002), and we reject Pereda-Rebollo’s contention that he received contradictory or

inconsistent warnings. The record shows he was fully informed of his right to

counsel before and during questioning, and that he knowingly and voluntarily

waived that right. We also reject Pereda-Rebollo’s assertion that the Miranda

warnings provided to him in Spanish were insufficient to convey the government’s

obligation to provide an accused indigent with counsel. Duckworth v. Eagan, 492

U.S. 195, 202-03 (1989) (no talismanic incantation is required to satisfy Miranda’s

strictures). The totality of the warnings adequately informed Pereda-Rebollo of the

right to appointed counsel if he could not afford a lawyer. United States v. Miguel,

952 F.2d 285, 288 (9th Cir. 1991). The district court did not err in denying Pereda-

Rebollo’s motion to suppress statements.

      We review for abuse of discretion a district court’s decision whether to

conduct an evidentiary hearing on a motion to suppress. United States v. Quoc Viet

Hoang, 486 F.3d 1156, 1163 (9th Cir. 2007). A hearing is only required “when the

moving papers allege facts with sufficient definiteness, clarity, and specificity to


                                           3
enable the trial court to conclude that contested issues of fact exist.” United States

v. Howell, 231 F.3d 615, 620 (9th Cir. 2000). Because appellants’ moving papers

raised no disputed factual issue regarding the investigatory stop, the district court

did not abuse its discretion in denying an evidentiary hearing. Absent a disputed

issue of fact, the district court was not required to make findings of fact on the

record pursuant to Fed. R. Crim. P. 12(d). Neither appellant raised in the district

court the argument that Preciado makes for the first time on appeal – that the

Border Patrol radio call could not possibly have been the impetus for the

appellants’ arrest, because it was broadcast after the appellants had already been

arrested.

      Appellants contend the border patrol agents lacked reasonable suspicion to

stop their vehicle. We review de novo the district court’s denial of the motion to

suppress, and we may affirm on any basis supported in the record. United States v.

Lemus, 582 F.3d 958, 961 (9th Cir. 2009). In the border patrol context, reasonable

suspicion to perform an investigatory stop may be based on: (1) characteristics of

the area; (2) proximity to the border; (3) usual traffic patterns on a particular road;

(4) previous smuggling in the area; (5) driver’s behavior; (6) passengers’ behavior;

(7) aspects of the vehicle; and (8) officer experience. United States v. Garcia-

Barron, 116 F.3d 1305, 1307 (9th Cir. 1997).


                                           4
       The border patrol agents had reasonable suspicion to perform the

investigatory stop. One agent first became suspicious after seeing appellants in a

dump truck driving eastbound close to the Mexican border. In the agent’s

experience, it was unusual for a dump truck to be in that area on a Sunday

morning. Later that morning, agents heard a radio dispatch regarding a citizen’s

report of a dump truck picking up illegal aliens. The location corresponded to the

direction in which one of the agents earlier saw the dump truck heading. The area

was known for alien smuggling, especially when the nearby checkpoint was

closed, as it was that day. Shortly after hearing the radio transmission, agents

observed the dump truck returning westbound. They performed an investigatory

stop. The totality of the circumstances supports a finding of reasonable suspicion

of criminal activity. United States v. Arvizu, 534 U.S. 266, 273 (2002).

       The district court did not err in denying Preciado’s Fed. R. Crim. P. 29

motion for judgment of acquittal. The testimony of the border patrol agents and

material witnesses, as well as the evidence of appellants’ post-arrest statements,

were sufficient to establish that Preciado knowingly aided and abetted the

transportation of illegal aliens.

       AFFIRMED.




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