                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 9 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10498

                Plaintiff-Appellee,             D.C. No.
                                                4:17-cr-00602-CKJ-EJM-1
 v.

ROXANNE MARIE CARPENTER,                        MEMORANDUM *

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    18-10006

                Plaintiff-Appellee,             D.C. No.
                                                4:17-cr-00602-CKJ-EJM-4
 v.

FAUSTO VELAZQUEZ,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                       Argued and Submitted April 15, 2019
                            San Francisco, California

Before: HAWKINS and M. SMITH, Circuit Judges, and VRATIL,** District

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Judge.

          Roxanne Carpenter, Fausto Velazquez, Phoelix Begay, and Brian Meyers

(together, codefendants) were indicted for conspiracy to kidnap and kidnapping

Angel Gonzalez, in violation of 18 U.S.C. §§ 1201(a)(1) and (c). Meyers and

Begay pleaded guilty, while Carpenter and Velazquez proceeded to trial where the

jury convicted them on both charges. In these consolidated cases, Carpenter and

Velazquez appeal a variety of the district court’s rulings related to their trial.1

      We have jurisdiction over their appeal pursuant to 28 U.S.C. § 1291, and we

affirm.

I.    Carpenter’s Claims

1.    Carpenter argues that the district court erroneously gave an instruction based

on Pinkerton v. United States, 328 U.S. 640 (1946), because the facts of the case

did not require a Pinkerton instruction and it obliterated her duress defense.

Because Carpenter objected only on the basis that the Pinkerton instruction did not

apply to her, we review her objection based on the erasure of her duress defense

for plain error. See United States v. Gadson, 763 F.3d 1189, 1215 (9th Cir. 2014)



      **
              The Honorable Kathryn H. Vratil, United States District Judge for the
District of Kansas, sitting by designation.
1
  We address Carpenter’s claim that the district court abused its discretion in
requiring her to publicly file her offer of proof for her duress defense, and
Velazquez’s claim that the district court erroneously admitted other act evidence,
in a separate, concurrently filed opinion.

                                            2
(reviewing for plain error because defendants did not raise “this particular

objection to the Pinkerton instruction”).

      The district court did not err in giving the Pinkerton instruction. As the

instruction explained, to find a defendant guilty of kidnapping as a coconspirator,

the jury had to first find that “a person named in Count Two of the Indictment

committed the crime of kidnapping as alleged in that count.” The jury could have

found that the kidnapping occurred prior to Carpenter’s arrival at Safeway—by

which point Gonzalez had already been bound and thrown into the vehicle’s

trunk—and Pinkerton liability could have applied to her. Further, the duress

instruction clearly stated, “Duress legally excuses the crime of conspiracy to

kidnap and kidnapping,” which established that the defense was an excuse to both

offenses. Thus, the Pinkerton instruction did not vitiate the duress instruction, and

the jury could still have found Carpenter’s codefendants guilty of kidnapping, yet

rendered a not guilty verdict for Carpenter due to duress.

2.    Carpenter argues that the police obtained two of her post-arrest statements in

violation of Miranda v. Arizona, 384 U.S. 436 (1966), and that the district court

erred in denying her suppression motion.

      Although Agent Notz misstated that Carpenter “may” receive a lawyer

rather than “will,” the other accurate warnings suffice to satisfy Miranda. See

Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (the inquiry regarding the


                                            3
adequacy of a Miranda warning is “simply whether the warnings reasonably

convey to a suspect his [Miranda] rights”). Even if Notz’s oral misstatement

would otherwise be legally fatal, the fact that the agents provided Carpenter with

an accurate written statement of rights form—that she signed—remedied any

insufficiency. See North Carolina v. Butler, 441 U.S. 369, 373 (1979) (noting that

a written waiver of one’s Miranda rights is “strong proof” that the waiver is valid).

      In addition, we find that Carpenter validly waived her Miranda rights after

she invoked her right to silence. Carpenter reinitiated communication with the

agents after invoking her right to remain silent, and after the agent reminded her of

this right, she affirmed her willingness to talk. The district court found that

Carpenter was “very comfortable during the interview,” and that she seemed

“almost in control of the interview.” Carpenter does not identify any facts that

contradict those findings. On the record before us, there is nothing to demonstrate

that Carpenter’s waiver was unwilling or unknowing. See id. at 374–75.

      Finally, Carpenter’s statements were voluntary. Although officers can make

“false representations,” “false promises,” on the other hand, may render a

confession involuntary. United States v. Preston, 751 F.3d 1008, 1026 (9th Cir.

2014). The test for voluntariness is one of the totality of the circumstances and

looks beyond just police conduct. See id. at 1019 (overruling prior case law to the

extent it held that “police coercion during interrogations must be evaluated without


                                           4
regard to the individual circumstances of the suspect”). While the agents’

comments regarding “helping” Carpenter or encouraging her honesty might

constitute borderline coercive conduct, there is no evidence that her will was

overborne. The district court found that Carpenter displayed no “hesitation or any

concerns” and “was very cooperative and interested in speaking with the agents.”

Carpenter’s manner during the interrogation, her experience with law enforcement,

and the lack of, or slight, police coercion establish that her statements were

voluntary. 2

3.    The Sentencing Guidelines provide that “[i]f the defendant clearly

demonstrates acceptance of responsibility for his offense, decrease the offense

level by 2 levels.” U.S.S.G. § 3E1.1(a). Carpenter sought a downward adjustment

for acceptance of responsibility, which the district court rejected because she

“never really, in my mind, accepted responsibility for the idea that this was an

activity that was committed primarily to get some easy money to improve their


2
  The parties dispute whether Carpenter sought suppression of the statement taken
as she was transported to the courthouse. Although Carpenter appears to have
initially sought suppression of this second statement as well, at the suppression
hearing, she eventually conceded, “If everything went wrong, it went wrong the
first day,” and did not object to the court ruling only on the first statement. On
appeal, Carpenter’s briefs contain no specific argumentation regarding the second
statement, and it remains unclear on what grounds she seeks suppression of this
statement. Even if we undertook de novo review of this second statement, the
delay in time, the re-reading of the Miranda rights and Carpenter’s second waiver
surely dissipated any coercion from the agents’ conduct the day before, rendering
her statement voluntary.

                                          5
living situation . . . I just reject the contention that this was done out of fear for her

safety or the safety of others.” We find nothing to disturb the district court's

findings, and the district court did not abuse its discretion in denying the reduction.

See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).

4.     Under the Sentencing Guidelines, a defendant who was an “organizer,

leader, manager, or supervisor” of the offense may be subject to an increased

offense level. U.S.S.G. § 3B1.1(c). During sentencing, the court applied this

upward adjustment finding that Carpenter “was an organizer or leader.”

Indeed, Carpenter obtained the equipment used to kidnap Gonzalez, the

codefendants used her vehicle, she directed the group to her friend’s home while

they waited to hear from the cartel regarding where to meet, and she ultimately

drove Gonzalez to Mexico. The evidence was sufficient to show that she was an

organizer, see United States v. Maldonado, 215 F.3d 1046, 1050–51 (9th Cir.

2000) (noting a “single incident of persons acting under a defendant’s direction”

constitutes sufficient evidence), and the district court did not abuse its discretion in

applying the enhancement, see Gasca-Ruiz, 852 F.3d at 1170.

II.    Velazquez’s Claims

1.     Velazquez argues that Carpenter’s Mirandized statements to the agents

implicated him based on hearsay evidence, and that the court failure to sua sponte

instruct the jury that Carpenter’s statements could not be used against him


                                            6
constitutes reversible error. Because Velazquez failed to object, we review the

absence of the limiting instruction for plain error. United States v. Sauza-Martinez,

217 F.3d 754, 759 (9th Cir. 2000).

      A district court’s failure to give a sua sponte limiting instruction regarding

hearsay testimony by one defendant that implicates a codefendant constitutes plain

error. See United States v. Armijo, 5 F.3d 1229, 1233 (9th Cir. 1993); Sauza-

Martinez, 217 F.3d at 760. Virtually none of Carpenter’s statements, however, are

“evidence of [Velazquez’s] guilt.” Armijo, 5 F.3d at 1232. Carpenter’s hearsay

statements that Velazquez had marijuana in his bathroom, that he might have

stolen the missing marijuana, and that he was the “enforcer” of the house and his

uncle was in the cartel do not incriminate Velazquez in the charged offenses—

kidnapping and conspiracy to kidnap Gonzalez. Thus, these non-incriminating

statements do not fall within the ambit of our case law and it was not plain error for

the district court not to provide the limiting instruction.

      By contrast, Carpenter’s statement, “Oh, let me talk to [Velazquez] because

I want him to call and find out if there is still money on his head. We’re not going

to do this if there’s not going to be any money,” implied that Velazquez was

involved in the conspiracy to kidnap Gonzalez, and that he potentially committed

the overt act of checking the bounty amount with the cartel. Even though the

district court’s failure to issue a limiting instruction on this statement constituted


                                           7
plain error, we find that the error did not affect Velazquez’s substantial rights. See

Sauza-Martinez, 217 F.3d at 759. Carpenter’s statement was cumulative of the

other evidence properly admitted at trial that established that Velazquez was the

group’s negotiator with the cartel. For example, Carpenter testified that she asked

Velazquez to call the cartel to discover how to “make the guns stop” and he did,

and Meyers testified that Velazquez negotiated with the cartel to determine the

meet-up location to turn over Gonzalez and receive the reward. In light of this

additional evidence presented at trial, we decline to reverse the district court.

2.    Velazquez raises an ineffective assistance of counsel (IAC) claim that

asserts that his trial counsel’s performance constituted abandonment. Generally,

this court permits IAC claims on direct appeal in “unusual cases where (1) the

record on appeal is sufficiently developed to permit determination of the issue, or

(2) the legal representation is so inadequate that it obviously denies a defendant his

Sixth Amendment right to counsel.” United States v. Rahman, 642 F.3d 1257,

1260 (9th Cir. 2011). We conclude that this is not an “unusual” case because

Velazquez challenges both his trial counsel’s closing argument and his

“constructive absence throughout trial,” and his trial counsel’s representation was

not an obvious denial of his right to counsel. See United States v. Swanson, 943

F.2d 1070, 1072 (9th Cir. 1991) (finding that because the defendant’s IAC claim

relied “solely” on his trial counsel’s closing argument, the record was sufficient for


                                           8
review on direct appeal). Accordingly, we decline to decide this claim, and

Velazquez will retain his right to raise this claim in a collateral proceeding.

      AFFIRMED.




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