                                                                            FILED
                              NOT FOR PUBLICATION                            FEB 25 2014

                                                                         MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 12-50603

                Plaintiff - Appellee,              D.C. No. 3:11-cr-05130-IEG-1.

     v.
                                                   MEMORANDUM*
JOSE CUEVAS-VILLALOBOS,

                Defendant - Appellant.


                      Appeal from the United States District Court
                         for the Southern District of California
                   Irma E. Gonzalez, Senior District Judge, Presiding

                        Argued and Submitted February 7, 2014
                                 Pasadena, California

Before: SCHROEDER and CLIFTON, Circuit Judges, and COGAN, District
Judge.**

          Defendant-Appellant Jose Cuevas-Villalobos appeals from his conviction

and sentence, imposed after jury trial, for one count of possession of

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).



 *
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

**
       The Honorable Brian M. Cogan, United States District Judge for the Eastern
District of New York, sitting by designation.
      The district court did not err in declining to dismiss the indictment or impose

evidentiary sanctions based on the government’s failure to preserve evidence. As

to the vehicle, the defense had already inspected it before it was sold, and thus its

continued exculpatory value was not obvious to the officers. There has been no

showing that Defendant suffered any significant prejudice from its loss. Cf. United

States v. Sivilla, 714 F.3d 1168, 1173-74 (9th Cir. 2013) (defendant suffered

significant prejudice where government disposed of load vehicle before defendant

had an opportunity to inspect it). As to the lost air fresheners, their exculpatory

value was also not obvious, and in any event the district court mitigated the

potential prejudice with a jury instruction, albeit not as forceful an instruction as

the defense had requested.

      The district court did not err in denying Defendant’s motion to suppress

Defendant’s statements. Defendant received a Miranda warning in his native

Spanish. Although the agent who gave the warning was not fluent in Spanish, he

had experience reading the warning from pre-printed cards in Spanish. In addition,

there was a Spanish-speaking agent in the room to answer any questions Defendant

might have had and who testified, in effect, that the manner in which the warnings

were read was very comprehensible. Further, even though the agents had warned

Defendant of the possible penalties he was facing, the district court did not err in

finding that there was no evidence that Defendant felt compelled to make


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incriminating statements. Cf. United States v. Tingle, 658 F.2d 1332, 1335–36

(9th Cir. 1981) (confession was involuntary where officer recited maximum

penalties that defendant faced, and then stated that defendant would not see her

child).

      Finally, it appears that the district court misapprehended the timeline as to

when Defendant made the statement he seeks to suppress. The court stated that he

made the statement within six hours of his arrest, and therefore within the safe

harbor period set forth in 18 U.S.C. § 3501(c). In fact, the interrogation started

shortly before the expiration of the safe harbor period, and Defendant made the

incriminating statement in dispute approximately 20 minutes after the six hours

expired. Nevertheless, the statement need not have been suppressed. Although

“[s]tatements made outside the six-hour ‘safe harbor’ may be excluded solely for

delay . . . a court is not obligated to do so.” United States v. Van Poyck, 77 F.3d

285, 288 (9th Cir. 1996); see also United States v. Manuel, 706 F.2d 908, 912–13

(9th Cir. 1983) (“Where the delay is longer than six hours . . . a confession is not

inadmissible per se. The test is . . . involuntariness, but unreasonable delay in

excess of six hours can by itself form the basis for a finding of involuntariness.”).

      Here, Defendant was questioned for a little more than an hour in total, and

made the statement in question a maximum of twenty minutes after the expiration

of the six-hour safe harbor. “We have been careful not to overextend


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McNabb–Mallory’s prophylactic rule in cases where there was a reasonable delay

unrelated to any prolonged interrogation of the arrestee.” United States v. Garcia-

Hernandez, 569 F.3d 1100, 1106 (9th Cir. 2009). Given the agents’ need to

procure further biographical information about Defendant’s family and the brevity

of the interview, the delay in presentment preceding Defendant’s statement was not

unreasonable and the statement was properly admitted. The district court did not

clearly err in finding that any delay was not for the purpose of obtaining a

confession. See id.

      We have considered Defendant’s remaining arguments and find them

without merit.

      AFFIRMED.




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