                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-1618
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Cesar Castro-Higuero,                    *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 16, 2006
                                 Filed: January 16, 2007
                                  ___________

Before SMITH, BOWMAN, and COLLOTON, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

      Cesar Castro-Higuero was convicted by a jury of conspiracy to distribute and
possession with intent to distribute in excess of 100 kilograms of marijuana and aiding
and abetting possession with intent to distribute approximately 250 kilograms of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846 and 18 U.S.C.
§ 2. The district court1 sentenced Castro-Higuero to 60 months' imprisonment, the
mandatory minimum sentence for the offenses. Castro-Higuero appeals, challenging
the admission of his post-arrest statements and the sufficiency of the evidence.

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
Alternatively, he seeks reversal of the denial of his motion for new trial due to an
alleged prejudicial statement by the court in the presence of the jury. Finally, Castro-
Higuero contests the constitutionality of mandatory minimum sentences. For the
reasons set forth below, we affirm.

                                  I. Background
      Castro-Higuero and six codefendants were arrested in a warehouse in
Minnesota as they unloaded approximately 500 pounds of marijuana from a secret
compartment in a tractor-trailer. Law enforcement surveillance cameras recorded
Castro-Higuero helping others unload the marijuana from the truck. An undercover
agent and a confidential informant present at the scene witnessed Castro-Higuero
unloading the drugs, and a body wire worn by the undercover agent recorded the
audio events in the warehouse. Castro-Higuero was arrested and taken to the county
detention center for questioning.

      Special Agent Robert Nance of the Minnesota Bureau of Criminal
Apprehension, the undercover agent that witnessed Castro-Higuero unloading the
marijuana, interrogated him around 3:15 a.m., approximately one hour after Castro-
Higuero's arrest. Because Castro-Higuero spoke limited English, Agent Nance
obtained a Spanish interpreter to translate the interrogation. Nance advised Castro-
Higuero of his Miranda rights as follows:2




      2
        The record contains an audio recording of the interrogation as well as a
transcript of the interrogation. The recording was transcribed by a federally certified
Spanish interpreter. The transcript contains both a verbatim transcript of everything
said on the tape and the English translation of every Spanish-language utterance. The
excerpts contained in this opinion only recite the English translations.

                                          -2-
     AN3: So, maybe if you could just tell him that I'm gonna go ahead and
          read the Miranda Warning, and if you could translate. He has a
          hard time, uh, understanding, uh, English.

     I:    Sure.

     AN: Okay. Uh, Cesar, you have the right to remain silent.

     I:    Sir, um, we're going to read you you're rights, it's the Miranda
           Warning, warning you Miranda. Sir, you have the right to remain
           silent.

     C-H: Okay.

     AN: Anything you say can and will be used against you in court.

     I:    Anything you say can be used against you.

     AN: You have the right to talk to a lawr—lawyer now, and have the
         lawyer present now, or at any time, uh, during questioning.

     I:    You can have, um, a lawyer present during your questioning.

     AN: Okay. If you cannot afford a lawyer, one will be appointed for you
         without cost.

     I:    If you cannot afford a lawyer, one will be assigned to you.

     AN: Cesar, do you understand each of these rights as I have explained
         them to you?

     I:    Uh—oh, um, sir, do you understand the—each of the rights as
           they have been explained to you?



     3
       "AN" represents Agent Nance, "I" represents the interpreter, and "C-H"
represents Castro-Higuero.

                                      -3-
      C-H: Yes.
      ....

       After this exchange, Castro-Higuero was asked if he wanted to talk to Agent
Nance or at least listen to what Agent Nance had to say. The interpretation of this
question confused Castro-Higuero, who then asked, "[Y]ou mean, I can talk? Or, or
should I keep quiet till [sic] another time?" Agent Nance then reiterated the Miranda
rights, which the interpreter relayed to Castro-Higuero as follows:

      AN: [I]f you could just tell him again what the Miranda Warning
          entailed, uh he does have the right to remain silent. Um, anything
          he says can and will be used against him in court. Um, he does
          have the right to talk to a lawyer now, and have the lawyer present
          at any time, um, certainly those rights, or he can just listen to what
          I um, have to offer him maybe, if he doesn't have to answer any
          questions, if he wants to just listen, I can explain to him where
          we're gonna go from now.

      I:     [W]hat was just read to you regarding your rights is that it was
             explained to you that you can and have every right to remain silent
             if you wish. It was also explained to you that if you wish, um, you
             can simply request that a lawyer be with you for any type of
             information or for any conversation you want to establish. In the
             event that you can pay for one you can request one your own or if
             not then one will be assigned to you, but the officer wants to know
             if you, that you'd like to discuss with him his opinion, what he and
             what he has to, you know, talk to you about, and discuss, you
             know, options. It's up to you to talk or not talk to him, to share or
             not share with him whatever it is that you're thinking, I mean that's
             your right, wanting to talk to him or not wanting to talk to him and
             just listening and in the end it's up to you.

      C-H: Okay.

      I:     That's why he's asking if you're, um, willing to talk to him.


                                          -4-
      C-H: Okay, yes, I do want to say some things.
      ...

      Castro-Higuero subsequently made incriminating statements to Agent Nance
about his involvement in the delivery of the marijuana. During the interrogation,
Agent Nance was unarmed and dressed in plain clothes. Castro-Higuero was not
handcuffed. Agent Nance testified that Castro-Higuero cooperated fully, spoke freely
throughout the questioning, and answered every question asked. Castro-Higuero never
requested an attorney or asked that the questioning cease.

        During the interrogation, Castro-Higuero explained his involvement in the drug
delivery. According to Castro-Higuero, he initially agreed to help one of his
codefendants drive a tractor-trailer from California to Wisconsin, believing the tractor-
trailer contained only powdered milk. However, several hundred miles into the trip,
the codefendant informed Castro-Higuero that the trailer contained a hidden cache of
marijuana to be delivered to Minnesota. Castro-Higuero admitted that he could have
chosen not to participate in the drug delivery. He agreed to do so, however, because
he was promised extra money if he helped deliver the drugs.

       Before trial, Castro-Higuero moved to suppress his incriminating statements.
The district court adopted the magistrate's report and recommendation and denied
Castro-Higuero's motion to suppress. Accordingly, the post-arrest statements were
admitted into evidence. At trial, Castro-Higuero testified at length, admitting that he
helped deliver and unload the marijuana but also asserting that he did not know the
tractor-trailer contained marijuana until well into the trip. Castro-Higuero's trial
testimony was consistent with his post-arrest statements to Agent Nance.




                                          -5-
      At the conclusion of the trial, the court instructed the jury, in part, as follows:

      Nothing that I have said or done during the course of this trial is intended
      in any way to somehow suggest to you what I think your verdict should
      be. Nothing said in these instructions and nothing in any form of verdict
      prepared for your convenience is to suggest or convey to you in any way
      or manner any intimation as to what verdict I think you should return.
      What the verdict shall be is the exclusive duty and responsibility of the
      jury.

      The court then attempted to dismiss the alternate juror, stating:

      [Juror], you're the alternate; sorry about that. All of you have been
      paying such close attention that I feel terrible having to let you go. Do
      you have somebody's name or somebody that could call you about the
      verdict and you could discuss whether you would have agreed with it or
      not? If you want to do that, or eventually we'll tell you what the verdict
      was; that will take a while. Whatever you want to do is fine. You can go
      now; you're excused. Remember all of the cautions I've been giving you
      until such time you know what the verdict is.

       The court then realized that it had accidentally attempted to dismiss the wrong
juror. The court instructed the first juror to remain for deliberations and dismissed the
actual alternate juror, stating:

      [Alternate], remember what I just said, make sure you keep things to
      yourself. Thank you very much; appreciate you're [sic] being here. We'll
      let you know exactly what's happened. Frankly, I send a little letter out
      with a sentence. You'll get a note from me if you don't get some other
      indication. (Emphasis added).

      Castro-Higuero did not object or otherwise bring to the court's attention the
allegedly prejudicial nature of this comment. The jury subsequently found Castro-


                                          -6-
Higuero guilty on both counts. The court then sentenced Castro-Higuero to the
mandatory minimum of 60 months' imprisonment.

                                    II. Discussion
       On appeal, Castro-Higuero contends that his post-arrest statements should have
been suppressed because the translated Miranda warnings he was given were
ambiguous and confusing. He also argues that insufficient evidence supports the jury's
guilty verdict and alleges that an improper, prejudicial statement by the court in the
presence of the jury caused a miscarriage of justice. Finally, Castro-Higuero contests
the constitutionality of mandatory minimum sentences.

                              A. Motion to Suppress
      Castro-Higuero argues that the translated Miranda warnings he was given were
ambiguous and confusing and thus his Miranda waiver was not knowing, intelligent,
and voluntary. Accordingly, he contends that the court erred in denying his motion to
suppress the statements.

       When reviewing a district court's denial of a motion to suppress, we reverse the
court's factual findings only if they are clearly erroneous. United States v. Jones, 275
F.3d 673, 678 (8th Cir. 2001). But, the ultimate determination of whether waiver
occurred is a question of law subject to de novo review. United States v. Caldwell, 954
F.2d 496, 504 (8th Cir. 1992). "We will affirm the district court's denial of a motion
to suppress evidence unless it is unsupported by substantial evidence, based on an
erroneous interpretation of applicable law, or, based on the entire record, it is clear
that a mistake was made." Jones, 275 F.3d at 678–79.

      For a defendant to waive his Fifth Amendment right against self-incrimination,
his waiver must be knowing, intelligent, and voluntary. Miranda v. Arizona, 384 U.S.
436, 444 (1966). A waiver is knowing and intelligent if it is "made with a full
awareness of both the nature of the right being abandoned and the consequences of the

                                          -7-
decision to abandon it." United States v. Syslo, 303 F.3d 860, 865 (8th Cir. 2002). It
is voluntary if it is "the product of a free and deliberate choice rather than
intimidation, coercion, or deception." Id. "To determine whether a waiver or a
confession was voluntary, a court looks at the totality of the circumstances and must
determine whether the individual's will was overborne." Id. at 866. "A court must
examine both 'the conduct of the law enforcement officials and the capacity of the
suspect to resist pressure to confess.'" Id. (quoting United States v. McClinton, 982
F.2d 278, 282 (8th Cir. 1992)).

       Viewing the totality of the circumstances, we hold that Castro-Higuero validly
waived his Fifth Amendment right to remain silent. Castro-Higuero was informed of
his rights through an interpreter and answered that he understood his rights. Castro-
Higuero understood the interpretation well enough to seek clarification of one of
Agent Nance's questions. Agent Nance asked the interpreter to clarify and reiterate the
rights to Castro-Higuero and proceeded only after receiving assurance from Castro-
Higuero that he understood. Castro-Higuero then stated that he "want[ed] to say some
things." Also, Agent Nance, unarmed and in plain clothes throughout the interview,
questioned Castro-Higuero without handcuffs and without loud or intimidating
speech. Castro-Higuero's will was not overborne, nor was he intimidated, coerced, or
deceived into waiving his rights.

       Castro-Higuero's argument that he did not know the full extent of his rights
because the interpreter only informed him that anything he said could be used against
him, instead of informing him that anything he said could be used against him in
court, is also without merit. See Evans v. Swenson, 455 F.2d 291, 295 (8th Cir. 1972)
(holding that warnings complied with Miranda requirements where the defendant was
informed of his rights, including warning that "any statement you do make can be
used against you").




                                         -8-
       Appellant also argues that his waiver was insufficient because of deceptive
tactics used by Agent Nance during the interview. These alleged deceptive tactics
were the time—3:15 a.m., the use of an over-the-phone interpreter, and the ambiguous
choice given appellant of speaking or listening. This argument is without merit. We
have previously held that early morning/late night interrogations are not in themselves
coercive. See United States v. Jordan, 150 F.3d 895, 899 (8th Cir. 1998) (finding that
the fact that the police approached the defendant at 3:00 a.m. did not render
confession involuntary); United States v. Pierce, 152 F.3d 808, 813 (8th Cir. 1998)
(finding that interrogation beginning at 4:26 a.m., following 2:57 a.m. arrest, was not
coercive). Additionally, the mere fact that the interpreter translated over the phone had
no effect on the sufficiency of the waiver, as Castro-Higuero could communicate
effectively through the interpreter and adequately understand what was being said. See
United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990) ("[W]hen a
defendant is advised of his rights in his native tongue and claims to understand such
rights, a valid waiver may be effectuated.").

        Finally, the allegedly confusing and ambiguous instruction to Castro-Higuero
did not invalidate his waiver. Castro-Higuero was informed of his right to remain
silent, and he clearly affirmed that he understood this right. Castro-Higuero then stated
that he "want[ed] to say some things." As the district court noted, there was no
"indication that he intended to remain silent or that such intentions were ignored." The
totality of the circumstances demonstrate that Castro-Higuero was aware of his rights
and knowingly, intelligently, and voluntarily waived them. Thus, the district court did
not err in denying Castro-Higuero's motion to suppress.

                            B. Sufficiency of the Evidence
       Castro-Higuero contends that the evidence against him was insufficient to
convict him. In reviewing a jury verdict for sufficient evidence, we view the evidence
in the light most favorable to the verdict and accept all reasonable inferences drawn
from the evidence that support the jury's verdict. United States v. Frauendorfer, 428

                                          -9-
F.3d 1115, 1118 (8th Cir. 2005). We will reverse on the basis of insufficient evidence
only if no reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Id.

       Examining the evidence in the light most favorable to the government, we hold
that substantial evidence supports the jury's verdict. Castro-Higuero admitted, both in
statements to Agent Nance and in his testimony at trial, that he continued to drive the
tractor-trailer with knowledge that drugs were hidden inside and willingly participated
in the delivery and unloading of the drugs. Furthermore, Castro-Higuero
acknowledged that he had opportunities to withdraw from involvement in the drug
deal but agreed to participate on the promise of more money. Additionally, the
government produced video-surveillance footage of Castro-Higuero unloading drugs
from the truck. Viewing this evidence in the light most favorable to the government,
a reasonable jury could have found Castro-Higuero guilty beyond a reasonable doubt.
See United States v. Ruiz, 446 F.3d 762, 768–69 (8th Cir. 2006).

                                C. Motion for New Trial
       Castro-Higuero also asserts that the district court erred in denying his motion
for new trial. He contends that the court's statement to an excused alternate juror using
the term "a sentence" rather than "a verdict," as it had in its prior statement, was
prejudicial and amounted to a miscarriage of justice. The court made the statement just
before the jury began its deliberations. However, Castro-Higuero did not
contemporaneously object or otherwise call the court's attention to the allegedly
prejudicial nature of its comment. Castro-Higuero argues that this statement implied
bias on behalf of the court towards conviction. Following the jury's verdict, Castro-
Higuero moved the court for a new trial based on this allegedly prejudicial statement.
The court denied the motion for new trial, finding that the statement did not result in
a miscarriage of justice because any prejudicial effect of the statement had been
mitigated by the court's other statements to the jury and because the court had
maintained an otherwise neutral role throughout the trial.

                                          -10-
       We will reverse a district court's denial of a motion for new trial only if the
district court abused its discretion. Rottlund Co. v. Pinnacle Corp., 452 F.3d 726, 731
(8th Cir. 2006). "We have always been reluctant to disturb a judgment of conviction
'by reason of a few isolated, allegedly prejudicial comments of a trial judge.'" United
States v. Lueth, 807 F.2d 719, 727 (8th Cir. 1986) (quoting United States v. Bland,
697 F.2d 262, 265 (8th Cir.1983)). In determining whether the comments of a trial
judge require reversal, "[o]ur task is to balance and weigh the comments of the judge
against the overall fairness of the trial." Lueth, 807 F.2d at 727 (citing United States
v. Singer, 710 F.2d 431, 436 (8th Cir.1983); Bland, 697 F.2d at 265).

      In this case, the court's comment about "a sentence" made to the alternate juror
in dismissing the alternate was the only alleged prejudicial statement made by the
court during the three-day trial. Although this statement was a mistake and should
have been clarified, weighing the single comment against an otherwise fair and
impartial adjudication, we hold that the district court did not abuse its discretion in
denying the motion for new trial.

       The potential prejudice of the statement is sufficiently mitigated when placed
in the context of the court's other statements to the jury. Prior to addressing the actual
alternate juror, the court accurately told the person that it believed to be the alternate
juror "we'll tell you what the verdict was." Likewise, in another instruction, the court
told the jury as a whole:

      Nothing that I have said or done during the course of this trial is intended
      in any way to somehow suggest to you what I think your verdict should
      be. . . . What the verdict shall be is the exclusive duty and responsibility
      of the jury.

       In light of the overall neutrality displayed by the court, the one improper
statement—not objected to—did not result in a miscarriage of justice, and the district
court did not abuse its discretion in denying the new trial motion.

                                          -11-
                        D. Mandatory Minimum Sentences
       Lastly, Castro-Higuero argues that United States v. Booker, 543 U.S. 220
(2005) made mandatory minimum sentences unconstitutional. Our court has rejected
this argument. United States v. Warford, 439 F.3d 836, 846 (8th Cir. 2006) (holding
that Booker does not render statutory minimum sentences unconstitutional). We,
therefore, need not address it.

                                  III. Conclusion
      For the foregoing reasons, we affirm the district court.
                      ______________________________




                                        -12-
