F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

A B E L A R D O N I E B L

A -T O R R E S , Defendant-Appellant. N o. 15-10261

D.C. No. 4:14-cr-02037- RCC-DTF -1

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na Raner C. Collins, Chief J udg e, Presiding

Arg ued and Submitted on September 13, 2016

San F rancisco, California

F iled J anuary

31, 2017

B efore: W illiam A. F letcher, Morg an B . Christen, and Michelle T. F riedland, Circuit J udg es.

Opinion by J udg e ChristenU N I T E D S T A T E S V

. N I E B L A

- T O R R E S 2

SUMMARY *

Crim inal Law

The panel a ffirmed a conviction for c onspiracy to possess with intent to distribute m ar i j u a na, in a case in which the defendant a

rg ued t hat the d istrict c ourt e rred by deny ing his motion for a judg ment of acquittal b e c au s e the g overnment did n ot introduce s u f

f icient evidence to corroborate his confession under the corpus delicti doctrine.

The panel held that the g overnment satisfied both p rong s of the cor p us delicti test set forth in United States v. LopezAlvarez
, 970 F .2d 583 (9t h C i r. 1992), by introducing sufficient corroborating evidence that the core conduct of the defendant’s crime actually occurred, a

nd sufficient evidence
to corroborate the reliability of the videotaped confession a nd the authenticity of the defendant’s confessed involvement in the conspiracy

.

The panel addressed other issues in a concurrently -filed memorandum disposition.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. N I E B L A

- T O R R E S 3

COUNSEL

Rog er H. Sig al (a r gu ed), L a w O ffices of Rog er H. Sig a l, Tucson, Ariz o na, for Defendant-Appellant.

L awrence C. L ee (arg

ued) and B ruce M. F erg , A s s i s tant United States Attorney s; Robert L

. Miskell, Appellate Chief; J ohn S. L eonardo, U nited States Attorney ; U nited States Attorney ’s Office, Tucson, Ariz ona; for Plaintiff-Appellee.

OP INION

CHRI STEN, Circuit J udg e:

Abelardo Niebla-Torres (Niebla), a native and citiz en o f Mex ico, appeals his conviction for c o nspiracy to p o ssess with intent to distribute marijuana, in violation o f 2 1 U .S.C. §§ 841(a)(1), 841(b)(1)(D), and 846. 1 Niebla arg ues that the district court erred by deny ing his motion for a j u d gm ent o f acquittal because the g overnment did not introduce sufficient evidence to corroborate h is confession under the corpus delicti doctri n e. W e have jurisdiction under 28 U .S.C. § 1291, and we affirm Niebla’s conviction.

I. BACK G R OUND

B o rder Pa t r o l Ag ent Michael Colella arrested Niebla on Poz o Redondo Mountain in southern Ariz ona, n e a r the Ajo B order Patrol station, on November 27, 2014. According to the g overnment’s ex pert tr i a l witness, the Ajo area is a

1 In th e def

en d an t ’s b r i e f t o th is co u rt, h is co u n sel ref ers to h im as

“ N ieb la,” so w e ad o p t th at co n v en tio n h ere.U N I T E D S T A T E S V

. N I E B L A

- T O R R E S 4

smug g ling corridor. Drug -trafficking org aniz ations control the majority

, if not a ll, of the smug g ling routes, a nd the d rug traffickers allow individuals to illeg ally c ross into the United States o n ly if they pay a f e e , wo r k as backpackers carry ing drug s, or serve as scout s to look out for law-enforcement activity

. T he backpackers ty p ically carry marijuana a nd travel in g roups of five to ten people. They trave r s e the valley floor, instead of walking throug h t he mountains, because each backpack weig hs forty to six ty

pounds and the backpacks a re e a sier to carry on f lat g round. Scouts track law-enforcement movement from mountaintop loc a t i ons to help the backpackers avoid detection.

Ag ent Co l e l l a spotted two people on the Poz o Redondo Mountain for several d ay s in a row l e a d i ng up to Niebla’s
arrest. The individuals “weren’t standing out in the open like

a normal hiker would,” and “ appeared t o b e concealing
t hemselves.” Ag ent Colella could just see the “tops of their heads, just from their chin up, a n d every so often their heads would g o back down and then come back up.” B ec a use the summit provides a r elatively unobstructed v iew of the valley floor (including the B order Patrol s tation), Ag ent Colella suspected the two peo p l e were scouting law-enforcement activities. Ag ent Colella h ad never encountered any h ikers o r tourists on the mountain, and described the terrain as very steep, rocky , and slippery

.

On the day of Niebla’s arrest, Ag ent Colella learned that other a g ents h a d spotted f

our possible scouts on the mountain from an aircraft equipped with a camera that dete cts body heat. A g ent Colella and a n o t h er B order Patrol ag ent, Paul Galleg os, ascended the mountain b y helicopter to investig ate. The helicopter dropped them off near the mountain’s summit, where they encountered t wo individuals later identified a sU N I T E D S T A T E S V

. N I E B L A

- T O R R E S 5

N i e b l a a n d A ndres Garcia-Espinoz a. The ag ents a pprehende d Niebla and Garcia-Espinoz a and searched the area where the

men were hiding

. They found cellular phone s and radio batteries in a satchel Niebla was wearing
, and han d -held

r a d i o s, a pair of binoculars, and trash in two nearby cav e s

. B oth men were wearing camouflag e clothing

. Ag ent Colella arrested Niebla and G a r c ia-Espinoz a on suspicion o f
smug g ling and arrang ed for transport to the Ajo B order Patrol station. There, another B order Patrol ag ent, Manuel Alonz o, advised Niebla of his constitutional rig hts and, t w o hours later, interviewed him.

During this interview, Niebla admitted that he was on the mountain as a scout. He said that he helped t w o gr oups o f
smug g lers carry

ing suitcases cross the border into the United States, and stated that he d i d not know what was in the suitcases, but that based on his e x perience, “it must be marijuana.” Niebla specified that each g roup contained eig ht

or ten people carry

ing roug hly one suitcas e per person, a nd that each suitcase weig hed twenty kilo g rams. H e ex p lained
t h a t he knew how much the suitcases w eig hed because t h e smug g lers told him before they crossed into the United States. Niebla said that he was on the mountain for three or four day s before Ag ent Colella arrested him, and that he ex pected to remain on the mountain for roug hly twenty mo re d a y s. The
ag ents did not recover any marijuana.

The g o vernment charg e d Niebla with conspiracy to possess with intent to distribute a controlled substance (Count One) and i l l e gal reentry (Count T w o). He pleaded g uilty to the illeg al-reentry count and proceeded to a bench trial on the conspiracy count. Niebl a filed a pretrial motion to suppress his confession as involuntary
, arg uing that the ag ent w ho interviewed him, Ag ent Alonz o , t h reatened him w ith sevenU N I T E D S T A T E S V

. N I E B L A

- T O R R E S 6

y ears’ imprisonment if he did not confess

. According to Niebla, Ag ent Alonz o primed h im f or the inte rview during the two-hour g ap b etween the time Alonz o read Niebla his rig hts (an event that was not videotaped) a nd when t he videotaped interview beg an.

A mag istrate judg e held a two-day evidentiary hearing on the motion to suppress, a t which both Ag ent Alonz o a nd Niebla testified. Ag ent A lo n z o testified that he advised Niebla of his constitutional rig hts and that N iebla will i n gly waived them and ag reed to s p ea k with the ag ent. The
go v ernment introduced Niebla’s sig ned rig hts form in t o evidence at the heari n g. B y contrast, Niebla denied any involvement in a drug -smug g ling operation and testified that he admitted to helping two g roups cross the b o rder because Ag ent A lonz o “pressured me that if I didn’t say that

. . . I was g oing to be there for seven y ear s

. That was the reason because he scared me. He pressured me.”

The mag istrate judg e credited Ag ent Alonz o ’ s d e s cription of the interview over Niebla’s, larg e ly b e cause the court found Ag e nt Alonz o’s account to be more consistent with the videotape. N iebla claimed that Ag ent Alonz o raised his voice and pressured him into confessing
, but Ag en t A l o n z o could
not be heard doing so on the v ideotape. The mag istrate judg e also found that Niebla’s h earing testimony wa s i n t ernally inconsistent. He t es tified that he was on the mountain for several day s without knowing why h e wa s there o r who he

was with, b ut also stated on cross-ex amination that he

ex p ected to be paid for the w o r k h e performed on the mountaintop, that the work probably involved repor ting on the movement o f law-enforcement officers, a nd that he thoug ht the suitcases being smug g led across the border would

c o n tain marijuana. Despite Niebla’s insistence that he w a sU N I T E D S T A T E S V

. N I E B L A

- T O R R E S 7

not a member of a drug -smug g ling operation, the mag istrate judg e recog n i z e d that, in his hearing testimony
, Niebla ultimately admitted many of the d e t ails from his videotaped confession. The mag istrate judg e r ecommended deny ing the motion to suppress. T he district court adopt ed the recommendation in a pretrial ruling

.

At trial, the g overnment presente d the testimony o f Ag ents Colella and Alonz o to d e s cribe Niebla’s arrest a nd confession; an ex pert witness to e x plain h ow drug -trafficking
org aniz ations use scouts in the Ajo corridor; a n d evidence that N iebla was previo u sly arrested for scouting in the same area in 2011. Niebla made an oral motion for a judg ment of acquittal under F ederal Rule of Criminal Procedure 29 aft er the g o vernment pres e n ted its case. He a rg u ed that the
g overnment f

ailed to produce suffic i e nt evidence to corroborate his confession to con s piracy to distribute marijuana independent of the confession itself. Specifically
, he contended that “ the o nly real eviden c e presented by the Government o f any a g re e m e n t to d istribute a specific controlled substance is Mr. Niebla’s post arrest statements.” The district court denied the motion, and Niebla chose not to present a d efense. The district court found Niebla g u ilty
, a nd

ex p lained its verdict:

B a sed upon the evidence, the Court finds that the defendant’s g uilty on the charg e o f conspiracy

. The Court finds that being on the hillside as h e was, in the middle of nowhere, d r e s s e d i n c a m o u f

l a g e c l o t h e s w i t h binoculars, radio, batteries, and a satchel is sufficient evidence, and with his cohort, is sufficient evidence to f ind tha t there was ag reement. The Court f inds from his ownU N I T E D S T A T E S V

. N I E B L A

- T O R R E S 8

words that the object of the ag reement was marijuana. 2

The court sentenced Ni ebla to nine months’ imprisonment and three y ears’ supervised release. Niebla timely appealed his conviction. He arg ues that the conviction must be vacated under the corpus delicti d octrine because the g overnment did
not present sufficient evidence to corroborate his confession.

II. DISCUSSION

A. Standard of

Review

Under F e deral Rule o f Criminal Procedure 29, “the court

on the defendant’s motion must e nter a judg ment o f acquittal of any o ffense for which the evidence is insufficient to sustain

a conviction.” W e review de novo the denial of a motion for acquittal. United States v. Corona-Garcia
, 210 F .3d 973, 978 ( 9 t h Cir. 2000). W e “ask whether, ‘after viewing the evidence in the lig ht most favorable to th e p r o s e c ution, any rational trier o f fact c ould have found the essential elements of t h e c r ime bey ond a reasonable doubt.’” Id. (quoting United S t ates v. Bahena-Cardenas
, 70 F .3d 1071, 1072–73 (9th Cir. 1995)); see also Jackson v. Virginia , 443 U.S. 307, 319 (1979).

To obtain a conviction on the drug -conspiracy charg e , the
g overnment was required to prove t hat: (1) there was an

2 Nieb l a’ s co

- d ef

en d an t, A n d res Garcia- Esp in o za, en tered a g u ilty
p lea t o co n sp iracy to p o s sess w ith i n t e n t to d istrib u te a co n tro lled

s ub stan ce b ef

o re a m ag istrate j u d g e o n Feb ru ary 1 7
, 2 0 1 5

. T h e d i s t r i c t

co u rt accep ted th e g u ilty p lea o n March 4
, 2 0 1 5
, th e d ay af ter Nieb la’ s b en ch trial co n clu d ed

.U N I T E D S T A T E S V

. N I E B L A

- T O R R E S 9

ag reement between two o r more people to commit the crime of possessing marijuana with the intent to distribute it; a nd ( 2 ) Niebla joined in the ag reement, knowing that it had a n

u nlawful purpose a

nd intending to h elp accomplish it. S e e United States v. Tran
, 5 68 F

. 3 d 1156, 1164 (9th Cir. 2 009); Ninth Circ u it Model Criminal J ury I nstructions § 9.19. Niebla’s videotaped c onfession was compelling evidence o f his g uilt, but, under th e corpus delicti doctrine, the “confession s t a n d ing a lone is n ot necessarily sufficient to support h is c o n v i ction.” United States v. Valdez-Novoa
, 780 F .3 d 9 0 6
, 9 2 2 (9th Cir. 2 0 15), cert. denied
, 135 S. Ct. 2913 (2015).

B. The Corpus Delicti Doctrine

The c orpus delicti doctrine requires that a convict i o n m u st rest on more than a defendant’s uncorrobo r a t e d confession. See Opper v. United States
, 348 U.S. 84, 9 2–94 (1954). “Althoug h the g overnment may rely on a defendant’s confession to meet its burden of proof, i t h a s nevertheless been long established that, in order to serve as the b a sis for conviction, the g overnment must a lso adduce some independent c orroborating evidence.” Corona-Garcia
, 210 F .3d at 9 7 8 (citing Opper
, 348 U.S. at 8 9). The doctrine’s purpose is to protect ag ainst the risk of convictions based on false c onfessions alone. S ee United States v. LopezAlvarez
, 970 F .2d 583, 592 (9th Cir. 1992) (citing W arszower v. United States
, 312 U.S. 342, 347 (1941)); see also Opper
, 348 U.S. a t 89–90 (“I n our country the doubt persists that the

z eal of the ag encies of prosecution to p rotect the peace, the self-interest of the accomplice, the maliciousness of an enemy

or the aberration or weakness of the accused under the strain of suspicion may ting e or warp the facts of the confession.”).U N I T E D S T A T E S V

. N I E B L A

- T O R R E S 10

I n Lopez-Alvarez
, we articulated a two-part t e s t to evaluate whether the g overnment h a s met its burden under the
corpus delicti doctrine. 970 F .2d at 592. Fi r s t , the
g overnment “must introduce sufficient evidence to establish that the criminal conduct at the core of the offense h a s occurred. Second, it must introduce independent evidence tending to establis h t h e trustworthiness of the admissions, unless th e c o nfession is, by v irtue of special circumstances, inherentl y r e l iable.” Id. The two prong s g uard ag ainst distinct ty p es of false confessions. See id. a t 590–92. The first ensures that a defendant is n o t c onvicted of a nonex istent crime—that is, a crime that was not a c t u ally commi t ted—and the second reduces the likelihood that a defendant is convicted based u pon a false co n f

e s s ion to an actual crime. See id. T h e go v e rnment must satisfy both
prong s for a case to surviv e a motion for a judg ment o f acquittal based on insufficient evidence. Id. at 592.

“[ T] he corpus deliciti ru le does not require the
go v e r n m e n t t o i n t ro duce evidence that would b e independently sufficient to c onvict the defen d ant in the absence o f the confession.” Valdez-Novoa
, 780 F

. 3d a t 923. Nor does it require that the g overnment “introd u ce independent, tang ible evidence supporting every element o f the c orpus delicti .” Lopez-Alvarez
, 970 F .2d at 591. I nstead, the government must introduce corroborating evidence “to support independently only the g ravamen of the offense—the

ex istence of the injury that forms the core of the offense a nd a link to a criminal actor.” Id.

Niebla contends that th e go v e rnment failed to meet its burden under both prong s of the Lopez-Alvarez test.U N I T E D S T A T E S V

. N I E B L A

- T O R R E S 11

C. The Core of

the Of f e nse

F irst, Niebla arg ues that the g overnment did not introduce sufficient corroborating e v i d e n c e t o e stablish that the criminal conduct at the core of t h e o f f ense occurred. The parties dispute what constitutes the g ravamen, or core, of the offense of conspiracy to di s t r i b u te a controlled substance. I n the

course of this litig ation, the p arties hav e a r g ued for three different d e finitions o f the c o re of the offense: (1) an ag reement to assist smug g lers; (2) an ag reement t o s m u g g le

a controlled substance; and (3) an ag r eement to smug g le marijuana.

The g overnme n t has alternated between arg uing that the conduct at the core of c o nspiracy is an a g reement to do something illeg a l, and a

rg uing that, in order to satisfy its
corpus delicti oblig ation, it must show that Niebla and his coconspirator ag reed to help smug g le a controlled substance. Niebla has likewise shifted his arg uments over time. I n the district court, he maintained that the g ravamen of conspiracy under 21 U.S.C. §§ 841 a

nd 846 is an a g reement to distribute

a specific controlled substance, and that the g overnment failed to meet its burden because it did n ot present evidence
to corrobora t e t h e ex istence of a conspiracy to smug g le marijuana. On appeal, Niebla arg ues that the g overnment failed to meet its bu r d e n because the evidence was “equally consistent” with the possibility that the ag reement was r elated
to human t r a fficking or to evading law enforcement a fter illeg al reen t r y into the United States. We n eed not decide which d e finition applies because, even if we define t h e core of the offense very specifically
, as an ag reeme n t t o possess and distribute marijuana, the g overnment satisfied its corpus delicti burden.U N I T E D S T A T E S V

. N I E B L A

- T O R R E S 12

1. Conspiracy to Possess W ith Intent to Distr i b u te Marijuana

Using the most specific d efinition of the core of the offense, the g overnment had to present corroborating evidence o f a conspiracy to possess with the intent to dis t r ibute marijuana. Niebla arg ues that the g overnment failed to o ffer sufficient corroborating evidence because the
ag ents did not find any mari j u an a at the time of Niebla’s
arrest. I n Opper
, the Suprem e Court held that the corpus delicti doctrine requires the g o ver n m e n t to introduce

c o rroborating evidence supporting “the essential fac t s admitted sufficiently to justify a jury inference of their truth.” 348 U.S. at 93. Our court paraph ra s ed Opper ’s “essential facts” requirement in Lopez-Alvarez : “the state is required to support independently only the g ravamen of the offense— the existence of the injury that forms the core of the offense and

a link to a criminal actor

—with tang ible evidence.” 970 F .2d at 591 (emphasis added).

The Supreme Court “has repeatedly said that the essence of a conspiracy is ‘an ag reement to commit an unlawful act.’” United States v. Jimenez Recio
, 537 U.S. 2 7 0
, 2 7 4 (2003) (quoting Iannelli v. United States
, 420 U.S. 770, 777 (1975)). The defendants in J

imenez Recio were f

ound g uilty o f conspiracy to distribute drug s even thoug h the g overnment had seiz ed the drug s before distribution—thereby making the ob j ect of the conspiracy impossible—and the defendants joined the conspiracy after the seiz ure. Id. a t 2 7 2 –74. The Court reasoned that impossibility is not a defe n s e t o conspiracy b ecause the harm at the center of conspiracy is the
ag reement. See id. at 274 ( “ T hat a g reement is ‘a d istinct evil,’ which ‘may ex ist an d be punished whether or not theU N I T E D S T A T E S V

. N I E B L A

- T O R R E S 13

substantive crime ensues.’” (quoting Salinas v. United States
, 522 U.S. 52, 65 (1997))).

Our court has applied similar r easoning in the contex t o f conspiracies to rob stash houses. T he stash-house cases ty pically involve “rever se sting ” operations whereby
g overnment ag ents sug g est to targ ets that they rob a fictional stash h ouse containing illeg al drug s and money

. “ Once the
ta r ge t s have taken steps to r ob the f ictional house, they a

re arrested and charg ed with conspiracy to violate fede r al narcotics laws.” United States v. Pedrin
, 797 F .3d 792, 794 (9th Cir. 2015). W e have affirm e d d rug -conspiracy convictions arising f

r o m these scenarios even thoug h the object of the co-conspirators’ illeg al ag reement—the drug s in the f ictional stash h o u s e

— d i d n ot actually ex ist. See, e.g. , United States v. W

illiams
, 547 F.3d 1187, 1197 (9th Cir. 2008) (ex plaining that the non-ex istent status of the drug s is not a defense to a conspiracy charg e).

Jimenez Recio and the stash-house cases c onfirm that the failure to seiz e marijuana is n ot fa tal to the g overnment’s prosecution o f Niebla. I ndeed, Niebla could have been convicted o f participating in a conspiracy to d istr i b u t e marijuana even if no marijuana had e ver ex isted. Niebla’s

co r pus delicti challeng e instead turns on whether the
g overnment presented sufficient corroborating evidence to demonstrate that he knowing ly e ntered into an ag reement to assist marijuana traffickers by scouting

.

2. Corroborating Evidence of the Offense

“[ A] conspiracy may be proven by ci r cumstantial evidence that the defendants acted tog e ther w ith a c o mmon g oal.” W illiams
, 547 F .3d at 1 1 9 6 (quoting U nited States v

.U N I T E D S T A T E S V

. N I E B L A

- T O R R E S 14

Iriarte-Ortega
, 1 1 3 F

. 3 d 1 0 22, 1 024 (9th Cir. 1997), amended by United States v. Iriarte-Ortega
, 127 F .3d 1200 ( 9 th Cir. 1997)); see also Sandez v. Unit e d S t a t e s , 239 F .2d 239, 244 (9th Cir. 1956) (“The corpus delicti may be proved b y circumstantial evidence.”). Here, the g overnment introduced independent, circumstantial evidence that Niebla knowing ly
ent e r e d into a

n u nlawful ag reement to smug g le marijuana. Ag ent Colella ar rested Niebla in close prox imity to his cod e f e ndant, Andres Garcia-Espinoz a , on a remote mo u n t a i n t o p in an area known to be frequented by marijuana smug g lers and their mountaintop scout s

. N iebla was dressed in camoufl a g e , and A g ent Colella testified that he saw two people hidin g t o ge ther on the mountain f or several day s before the arrest. W hen they were apprehended, Niebla a nd Garcia-Espinoz a had h and-held radios, cellu l ar telephones, and binoculars. 3 According t o the g overnment’s ex pert witness, B order Patrol Ag ent Carlos Rochin, scouts use these items “to observe law enforcement movement and then r elay it back to the g uide,” so the g uide can avoid a pprehension while smug g ling d

rug s a c ro s s the desert. The remote g eog rap h i c a

rea, the communications equipment, and the

ex p ert w itness’s testimony are c ircumstantial evidence of the
ag reement that was at the heart of this dr u g- d i s tribution conspiracy

. See United States v. Vargas-Oc a m p o , 747 F .3d 299, 302–03 ( 5th Cir. 2014) (en banc) (holding that presence of scouts a n d d efendant’s use of a push-to-talk radio

3 N ieb la arg u ed t h a t t he d istrict co u rt erred b y ad m i ttin g th e b in o cu lars (Ex h ib it 5 5 ) an d a p h o t o o f th e b i n o cu lars an d tw o

- w ay rad i o s (Ex h ib it 1 4 ) at trial b ecau se th e g ov ern m en t a u t h en ticated b o th ex h ib its

w ith h earsay testim o n y

. W e h eld th at it w as n o t p lain erro r f o r th e d istrict

co u rt t o a d m it th ese ex h ib its in a m em o ran d u m disp o sitio n f iled

co n cu rren t ly

w ith th is o p in io n

.U N I T E D S T A T E S V

. N I E B L A

- T O R R E S 15

constituted circumstantial evidence of an ag reement to eng ag e in drug trafficking ).

Ag ent Rochin also ex plained that drug -traff i c king
org aniz ations control the majority

, if not all, of the smug g ling
routes in the Ajo B orde r Patrol station’s area of operations, and that they ty

pically traffic marijuana. Althoug h aliens a re also smug g led along these routes, A g ent Rochin testified that

one would need prior p ermiss i o n from the drug -trafficking
org aniz ations in order to cross into the United States on these routes, and that an individual must pay a fee, work as a scout,

or c a r r y drug s across the desert in order to g ain the drug

trafficking org aniz ations’ permission to cross.

The g overnment also pr e s e nted evidence of Niebla’s 2011
arrest to c ounter N iebla’s a r gu m e nt that he was on the mountain f

or several day s with no knowledg e o f why he was there. 4 Bo r d er Patrol Ag ent Vincente Paco testified that he arrested Niebla for scouting in 2011 close to the location where Ag ent Colella arrested Niebla for the current offense. Niebla w a s n ot charg e d in 2011. Althoug h Ag ent Paco’s
team was c onducting an investig ation into a l ien smug g ling when they encountered N iebla, Ag ent Paco testified that he d id n ot k now whether N iebla w as scouting for a h u m a n

trafficking or dr ug -trafficking operation, but that the area where his team found Ni e bla is mostly used for narcotic
smug g ling

.

4 Nieb la arg u ed th e d istrict co u rt erred b y ad m ittin g ev id en ce o f th e p rio r arrest u n der Fed eral R u le o f Ev i d en ce 4 0 4 (b ). W e h eld t h at th e d istrict co u

rt p ro p erly ad m i t t e d th is ev id en ce i n a m em oran d u m d isp ositio n

f i led co n cu rren tly

w ith th is o pin io n

.U N I T E D S T A T E S V

. N I E B L A

- T O R R E S 16

W e conclude that the g o vernment satisfied the first prong of the Lopez -Alvarez corpus d elicti test by introducing

s u fficient corroborating evidence that the core conduct o f Niebla’s crime actually occurred. To satisfy the c orpus delicti doctrine, “the corroborative evidence does n ot have to prove the offense bey o nd a reasonable doubt, or even by a preponderance, as long as there is substantial inde p e n d ent evidence that the offense has been committed

. . . .” Smith v

. United S t ates , 348 U.S. 147, 156 (1954). The g overnment established that: (1) ag ents arrested Niebla in a n a r ea controlled by drug -trafficking org aniz ations; (2) those
org aniz ations ty

p icall y traffic marijuana; (3) Ag e nt Colella

saw two men on the mountain try ing to h ide for several day s l eading u p to the arrest; (4) Niebla w as wearing camoufla ge clothing and carry

ing a cellular phone a

nd radio batteries at the time of the arrest; (5 ) t h e arresting ag e nts f ound binoculars and hand-held r adios in n earby caves; (6 ) scouts use these same items to help backpackers traverse the valley floor carry

ing marijuana; and ( 7) Niebl a w as arrested on suspicion of scouting f

or a smug g ling o p e r a tion in the same area three y

ears earlier.

D. Reliability of

the Conf ession

Ni eb l a also arg ues that the g overnment’s evidence was insufficient to c orrob o r a t e h is confession under LopezAlvarez ’s second prong

. T his part of the corpus delicti test

re q u i r e s t h a t t h e g o v e r n m e nt “ introduce independent evidence tending to e s t a b l ish the trustworthiness of the admissions, unless the confession is, by v irtue of s p e cial circumstances, inherently reliable.” Lope z-Alvarez
, 970 F .2d at 592. I n V a ldez-Novoa
, we held that the f act that a confessi o n “ i s recorded, voluntary , and the result of an interrog ation that is conducted in a manner c onsis t ent with the constitutionalU N I T E D S T A T E S V

. N I E B L A

- T O R R E S 17

protections afforded the accused suppor t s a d e t e r m i nation that it is ‘inherently reliable’ u nder Lopez-Alva r e z ’s second
prong .” 780 F .3d at 925.

Niebla emphasiz e s the two-hour del ay between the time he received the Miranda -advisement and the time his interview w as videotaped, a nd maintains that his demeanor during t h e interview is c o nsistent with pre-interview coaching

. Niebla does not challeng e whether h is “statement

was v oluntar y and Miranda -compliant, but rather, whether th e r e was evidence which shed d oubt on the confession’s reliability .”

Niebla’s arg u ment that his confession was coached is not supported by the videotape. I n fact, the d istrict court’s finding that the videotape demonstrates Niebla’s co n f e ssion

was “spontaneous a

nd unrehearsed” is well supported. Contrary to Niebla’s claim, Ag ent Alonz o d i d n o t r aise his voice or speak harshly during Niebla’s intervie w

. N i ebla is soft-spoken a

nd h as slumped, d owncast posture in the v ideo, but h e does not appear frig htened o f Ag ent Alonz o o r intimidated into answering questi o n s

. Cf. United States v

. Preston
, 751 F .3d 1008, 1 012 (9th Cir. 2014) (en banc). Contrary to h is assert i o n that he was coached, the videotape shows that Niebla corrected Ag ent A l o n z o several times during the interview, and sometimes responded neg atively to Alonz o ’s leading questions. T h e record demons t r a t e s that Ag ent Alonz o did not insist on particular answers to his questions or repeatedly b adg er Niebla u n t il he received satisfactory

responses. See Preston
, 751 F .3d at 1013.

Niebla failed to show that his i n t e r rog ation was inconsistent “with the constitutional protections afforded the accused.” See Valdez-Novoa
, 7 80 F .3d at 925. The recordingU N I T E D S T A T E S V

. N I E B L A

- T O R R E S 18

a l l owed the court to see how the interview unfolded and t o

assess the voluntariness of Niebla ’s responses. “W h ere the
g overnment complies with all of the procedural p rotections afforded the accused and the def endant’s videotaped
statement is shown to the [trier of fac t ]
, there is no e levated risk that the confession was the product of coercion or that the defendant’s words were misconstrued.” Id.

F urthermore, the same phy sical and circumstantial evidence that corroborates Niebla’s confession to the core o f the off e n s e also verifies the authenticity of his confessed involvement in the c onspiracy

. See id. at 924

– 25. Niebla stated that he was on the mountain for several day s before the arrest, whic h i s consistent with A g ent Colella’s observation of two people hiding tog ether on the mountain for that period of time. Niebla ex plained that he helped two g roups of eig ht

or ten people cross the b order into the United States, and that each suitcase weig hed twenty kilog rams. Testimony f rom the
g overnment’s ex pert witness was in accord. T he e x p e rt testified that smug g lers ty pically traverse the valley floor in
g roups of five to ten people carry ing backpacks that weig h between forty a

nd six ty pounds each, which is c onsistent with Niebla’s twenty -kilog ram estimate. The ag ents found handheld r a dios, radio batteries, cell phones, a nd binoculars on the mountain, and in his videotaped confession Niebla admitted that h e and his c o

- conspirator used these i t e ms to communicate with a

nd g uide smug g lers across the desert undetected. The g o vernment’s ex pert also testified that
scouts for marijuana-trafficking o rg aniz ations in the Ajo corridor use these devices. W e conclude that the g overnment introduced sufficient corroborating evidence to satisfy LopezAlvarez ’s second prong

.U N I T E D S T A T E S V

. N I E B L A

- T O R R E S 19

F or the foreg oing r easons, Niebla’s confession was

a d e quately corroborated under the corpus delicti doctrin e. B ecause the confession is sufficiently corroborated, viewing all the evidence (including the confe s sion) in the lig ht most fav o r a b l e to the prosecution, a ny rational trier of fact could have found bey ond a reasonable d oubt that Niebla knowing ly entered into a

n unlawful a g reement to serve as a sc o u t f o r marijuana traffickers. See Corona-Garcia , 210 F .3d at 978.

III. CONCLUSION

Niebla failed to meet his b urden of sh o wing that the
g overnment did n o t i n

t r o d u c e s u f f i c i ent independent evidence
to corroborate his confession. B ecause the evidence a dduced
at trial satisfied the corpus d e licti doctrine, the d istrict court correctly denied Niebla’s motion for a judg ment of acquittal under F ederal Rule of Criminal Procedure 29.

AF F IRMED.