* Pursuant to 5TH CIR. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 28, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50428

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

YOLANDA JEAN MADDEN,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

No. 7:05-CR-134

--------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

After a bench trial, the district court found Yolanda Madden

guilty of possession with intent to distribute methamphetamine

within 1000 feet of a university, a junior high school, and a playground. She contends she did not validly waive her right to a jury

trial, despite that she executed a waiver in accordance with FED.

R. CRIM. P. 23(a) and makes no claim of prejudice. By executing the

waiver, and absent a claim of prejudice, she is presumed validly to
No. 06-50428

-2-

have waived her right to a jury trial. See United States v. Tobias, 662 F.2d 381, 387 (Former 5th Cir. Nov. 1981). Moreover,

Rule 23 “is a formulation of the constitutional guaranty of trial

by jury,” and its waiver provision “embodies existing practice, the

constitutionality of which has been upheld.” FED. R. CRIM. P. 23(a)

advisory committee’s notes (1944). Madden therefore shows no constitutional or other reversible error in connection with her waiver

of a jury trial. 

Madden contends that the warrantless search of her vehicle was

not supported by probable cause because the informant who led police to her was not shown to be reliable. The informant identified

Madden by name and by photograph, and he provided credible and detailed information about her, including her history of selling

methamphetamine to him, where she lived, her father’s place of business, and what vehicles she drove. As police observed, the informant initiated two telephone conversations with Madden to arrange

to buy methamphetamine from her. Police corroborated information

about her vehicle, and the informant accurately predicted her arrival at the set location in the vehicle she was driving. Under

the totality of the circumstances, the information given by the

informant provided probable cause to stop and search Madden’s vehicle. See United States v. Delario, 912 F.2d 766, 767-68 (5th

Cir. 1990) (finding probable cause on similar information); United

States v. Reyes, 792 F.2d 536, 539 (5th Cir. 1986) (same).
No. 06-50428

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Madden contends that her admission to police that there was

methamphetamine in her vehicle should not have been admitted, because it was either the fruit of an illegal stop or obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Because the

information provided by the informant established probable cause or

at least reasonable suspicion for the stop, Madden’s admission was

not the fruit of an illegal stop. 

Madden’s statement was not obtained in violation of Miranda.

Police had only just stopped her at the meeting site, and a detective had explained that police were conducting a drug investigation

and had reason to believe she possessed methamphetamine, when she

blurted out that there was methamphetamine in a bag inside her vehicle. She was not in custody. See United States v. Bengivenga,

845 F.2d 593, 596 (5th Cir. 1988) (en banc). Miranda therefore did

not apply. See United States v. Courtney, 463 F.3d 333, 336 (5th

Cir. 2006). 

In addition, Madden was not being interrogated. Nothing in

the record suggests that the officers expected her to blurt out

that she was carrying illegal drugs before being arrested, Mirandized, or questioned further. See Rhode Island v. Innis, 446 U.S.

291, 301 (1980); United States v. Savell, 546 F.2d 43, 46 (5th Cir.

1977). 

Madden contends that the district court should have departed

downward to cancel out her two-level sentence increase based on the

crime’s proximity to two schools and a playground. She argues that
No. 06-50428

-4-

police entrapped her into appearing at that location. To the extent this is a legal question concerning the application of

U.S.S.G. § 2D1.1, comment. (n.14), we have jurisdiction to review

the decision. Note 14 to § 2D1.1 does not apply because, by its

own terms, note 14 provides for a potential downward departure “in

a reverse sting (an operation in which a government agent sells or

negotiates to sell a controlled substance to a defendant).

§ 2D1.1, comment. (n.14). This was not a reverse sting, because

the government was not acting as the seller. Moreover, the evidence shows no sentence entrapment, but rather that the site for

the meeting was chosen by Madden and the informant, without police

input, because it was convenient for Madden.

The judgment is AFFIRMED.