FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-10519 Plaintiff-Appellant,

D.C. No.

v.  CV-05-00833-JCM

RANDY S. STANTON,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted

June 13, 2007—San Francisco, California

Filed August 31, 2007

Before: Alfred T. Goodwin, Jay S. Bybee, and

Milan D. Smith, Circuit Judges.

Opinion by Judge Goodwin

11147
COUNSEL

Peter S. Levitt, Assistant United States Attorney, Robert Ellman Appellate Chief, Las Vegas, Nevada, for the plaintiffappellant. 

John G. Watkins, Las Vegas, Nevada, for the defendantappellee. 

OPINION

GOODWIN, Circuit Judge: 

A magistrate judge found Randy S. Stanton (“Stanton”)

guilty of driving while under the influence of alcohol to a

degree that rendered him incapable of safe operation. On

appeal from this conviction the district court reversed, holding

UNITED STATES v. STANTON 11149
that insufficient evidence supported the magistrate’s decision.

The United States appeals the district court’s ruling, contending that it erred by concluding that no rational trier of fact

could have found Stanton guilty beyond a reasonable doubt.

Stanton counters that we lack subject matter jurisdiction over

the government’s appeal; and, in the alternative, he argues

that the government did not adduce sufficient evidence to support his conviction. We hold first that we have jurisdiction to

hear this appeal. On the merits, we reverse the district court’s

order and remand for further proceedings. 

I. BACKGROUND

Stanton’s sufficiency of the evidence argument requires us

to consider the entire record in the light most favorable to the

prosecution, to determine whether “any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). Accordingly, we discuss the record evidence in some

depth. 

The United States charged Stanton by criminal complaint

with three offenses arising from his activities on the evening

of April 13, 2004. Count One alleged that he operated a motor

vehicle under the influence of alcohol, in violation of 36

C.F.R. § 4.23(a)(1). Count Two charged Stanton with operating a motor vehicle with a blood alcohol content (“BAC”) of

.08 grams or more, in violation of 36 C.F.R. § 4.23(a)(2), and

Count Three charged him with speeding, in violation of 36

C.F.R. § 4.21(c). Stanton consented to trial by a magistrate,

and proceeded to a two-day bench trial.

Trial evidence shows that on April 13, 2004, Stanton

attended a wine tasting in Boulder City, Nevada, that began

at approximately 6:15 p.m. Stanton consumed one to two

ounces of at least four different wines at the tasting, and also

had several one to two ounce “additional pours,” or re-fills.

Stanton left the wine tasting around 8:40 p.m., and went to a

11150 UNITED STATES v. STANTON
restaurant. There he ordered a glass of wine around 9 p.m.,

finished his drink around 9:25 p.m., stopped briefly at his

office, and then headed home. 

National Park Service Ranger Lena Boesser-Koschmann

(“Koschmann”) was on patrol in the Lake Mead National

Recreation Area that evening. At approximately 9:40 p.m.

Koschmann clocked Stanton driving 70 miles an hour in a

posted 45 mile an hour zone within the federal recreation

area, and pulled the vehicle over. She approached the vehicle

to inform Stanton that he had been speeding, and observed “a

strong odor of an alcoholic beverage about his person.”

Koschmann also observed that “his eyes were bloodshot and

watery,” and that his speech was “very slow and deliberate.”

After Stanton stated that he had been drinking at a wine tasting, Koschmann asked him to step out of the vehicle and

observed that “his balance was somewhat unsure as he walked

toward the back of the vehicle.”

1

 Koschmann then conducted

a set of field sobriety tests (“FSTs”), each of which indicated

Stanton was intoxicated. During the “horizontal gaze nystagmus test,” which measures involuntary eye movements,

Koschmann observed four of a possible six clues indicating

poor performance, and testified that she concluded “[t]here

was a high probability that he had alcohol in his system, that

it was effecting [sic] him.” Stanton challenged the validity of

these results, arguing they were tainted because he was looking directly into the headlights and emergency lights on

Koschmann’s vehicle during the test. Stanton also failed the

“walk and turn test,” during which Koschmann observed six

of a possible eight clues indicating intoxication. Specifically,

Koschmann testified that Stanton: lost his balance and stepped

out of position while she gave instructions; stepped off line

multiple times; used his arms for balance; stopped walking

altogether at one point; turned incorrectly; and took an incorrect number of steps. Finally, Stanton failed the “one-leg

1Koschmann also made the “general observation” that Stanton was

“swaying and wobbling” during the time he was outside of the vehicle. 

UNITED STATES v. STANTON 11151
stand test.” Stanton exhibited all four clues this test examines

(swaying, hopping, putting foot down, using arms to balance),

and after he placed his foot on the ground a third time, Koschmann stopped the test because she “was concerned for his

safety.” Koschmann testified repeatedly that the tests were

performed on a flat, paved surface on the side of the road, and

also testified that the weather was clear and dry. Conversely,

Stanton testified that the roadside testing took place on unlevel ground, but at no time did he alert Koschmann to any

problems or difficulties he had performing the tests. 

Koschmann thereafter conducted a preliminary breath test

(“PBT”) at the scene, which indicated Stanton’s BAC was .115.2

Given the totality of the circumstances and her observations

of Stanton, Koschmann placed him under arrest and took him

to a nearby ranger station. At the station, approximately fifty

minutes after the initial stop, Koschmann administered two

breath tests using an Intoxilyzer machine. At trial Koschmann

testified that Stanton blew a .141 on the first test, and a .144

on the second. However, the magistrate sustained a defense

objection to any testimony about whether these results placed

Stanton over the legal BAC limit, because the government

had failed to lay a sufficient foundation for what the Intoxilyzer results represented. The magistrate later granted Stanton’s Rule 29 motion for acquittal on Count Two. 

On the night of his arrest, after being advised of his

Miranda rights, Stanton stated that he had not eaten since

having a protein shake that morning, that he had begun drinking at 6 p.m. that night, and — despite his own testimony

about the 9 p.m. glass of wine at the restaurant — that he had

his last drink of the evening at approximately 8 p.m. Stanton

also stated that on a scale from one (low) to ten (high), “he

2A violation of 36 C.F.R. § 4.23(a)(2), charged as Count Two in this

case, requires a BAC of .08 or more. The magistrate admitted Stanton’s

PBT result solely for its probative value to establish probable cause for

arrest. 

11152 UNITED STATES v. STANTON
felt he was a four” with regard to the extent he was under the

influence of alcohol. Finally, Stanton concluded, “I feel

buzzed. I felt more of a buzz when you pulled me over.” 

Stanton also testified at trial before the magistrate. He

stated that he had attended and partaken at the wine tasting,

and later ordered the glass of wine at the restaurant. He also

stated that he did not believe the wine placed him in a condition that he could not safely operate his vehicle. He also testified that he did not believe he was driving seventy miles an

hour when Koschmann encountered him, that he told the

ranger so, and that he generally travels five to ten miles per

hour over the speed limit on that stretch of road. 

At the close of evidence and argument, the magistrate gave

a short verbal ruling on the two remaining counts. First, the

magistrate convicted Stanton of the speeding charge in Count

Three, stating that she was persuaded beyond a reasonable

doubt that the government had proven its case. The magistrate

also found Stanton guilty of Count One, holding that under

the totality of circumstances he was incapable of safely operating his vehicle because of the degree to which he was under

the influence of alcohol. The magistrate accepted Stanton’s

argument regarding the “horizontal gaze nystagmus test,” and

placed no weight on the test because it was “conducted under

less than idea[l] circumstances.” Nonetheless, the magistrate

relied particularly on the Intoxilyzer results (which indicated

Stanton had been drinking even if they did not conclusively

show an above-limit BAC), Koschmann’s field observations,

the speed at which Stanton was driving, his disregard for the

speed at which he was driving, and his post-custody statements that he was more intoxicated at the time of his stop than

at the time he was questioned. Considering all the evidence

adduced as a whole, the magistrate concluded that the government had proved its case on Count One, and found Stanton

guilty of that charge. The magistrate then sentenced Stanton

to a twelve-month term of unsupervised probation, a $500

UNITED STATES v. STANTON 11153
fine, sixty-four hours of community service, and DUI counseling. 

Stanton appealed to the district court, arguing insufficient

evidence supported his conviction on Count One. In a onepage order the district court reversed, holding that considering

the evidence in the light most favorable to the prosecution, no

rational trier of fact could have found the essential elements

of Count One beyond a reasonable doubt. The government’s

timely appeal — and Stanton’s unsuccessful motion in this

court to dismiss for lack of subject matter jurisdiction — followed. 

II. DISCUSSION

A. Jurisdiction

[1] Stanton’s contention that we lack jurisdiction to entertain the government’s appeal is without merit. Stanton accurately identifies the fundamental rule that “the United States

cannot appeal in a criminal case without express congressional authorization.” United States v. Martin Linen Supply Co.,

430 U.S. 564, 568 (1977). He also correctly points out that the

governing statute, the Criminal Appeals Act, on its face

authorizes the United States to appeal only from a “judgment

. . . of a district court dismissing an indictment or information

. . . except that no appeal shall lie where the double jeopardy

clause of the United States Constitution prohibits further prosecution.” 18 U.S.C. § 3731. However, his argument flowing

from these two basic premises is flawed. 

Because express congressional authorization is required to

support a government appeal in a criminal case, and because

§ 3731 does not on its face authorize the government to

appeal from a district court order reversing a conviction

entered by a magistrate, and ordering an entry of acquittal,

Stanton argues that this court is stripped of jurisdiction.

Although we have not yet addressed this issue, Stanton’s posi11154 UNITED STATES v. STANTON
tion is contrary to controlling Supreme Court authority, and

to the jurisprudence of every other circuit that has considered

the question. 

In United States v. Wilson, 420 U.S. 332 (1975), the jury

returned a guilty verdict that was subsequently vitiated by the

trial court’s post-verdict dismissal of the indictment on speedy

trial grounds. 420 U.S. at 334. The government sought to

appeal, but the Third Circuit held that because the district

court’s ruling was effectively an acquittal, the Double Jeopardy Clause prevented the government from constitutionally

appealing the ruling. Id. at 335. Considering the present version of § 3731, which had recently undergone substantial revision, the Supreme Court first noted that the revised statute

eliminated many of the prior limitations on the government’s

appeal rights. Id. at 336-37. In combination with the new language, the court considered at length the legislative history

underlying the revised Act and determined it was “clear that

Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution

would permit.” Id. at 337. Because “Congress was determined

to avoid creating nonconstitutional bars to the Government’s

right to appeal,” the Court turned next to a lengthy double

jeopardy analysis. Id. at 339. Having surveyed the evolution

of double jeopardy jurisprudence, the Court concluded that

“where there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not

offended.” Id. at 344. Because the jury had rendered a guilty

verdict, and because reversal of the district court’s order on

appeal would do nothing more than reinstate that verdict, the

appeal presented no threat of a successive prosecution or multiple punishments for the same offense. Id. at 344-45, 353.

Accordingly, there was no double jeopardy violation, and the

government was constitutionally free to bring the appeal

under § 3731. Id. at 353. 

The procedural posture in Wilson — a trial court’s dismissal of an indictment — fit squarely within the terms of

UNITED STATES v. STANTON 11155
§ 3731, regardless of the Court’s broad interpretation of the

statute. Just two years later, the Court gave a similarly broad

construction to a different portion of the statute in United

States v. Martin Linen Supply Co., 430 U.S. 564 (1977). In

that case a “hopelessly deadlocked” jury was discharged after

failing to reach a verdict. 430 U.S. at 565. After the jury’s dismissal the district court granted the defendants’ motions for

judgment of acquittal under Federal Rule of Criminal Procedure 29, a decision from which the government sought appeal

under § 3731. Id. at 566-67. Noting that the statute by its

terms authorizes appeal from a “dismiss[al]” rather than “acquittal,” the Court nonetheless followed the Wilson example

of construing the statute broadly, stating that unless barred by

the Constitution, Rule 29 acquittals may be appealed because

“the form of the ruling is not dispositive of appealability in a

statutory sense.” Id. at 567 n.4; see also id. at 568. The Court

then applied the Wilson constitutional analysis, beginning

from the premise that since its common-law origins, double

jeopardy protection has been “directed at the threat of multiple prosecutions, not at Government appeals, at least where

those appeals would not require a new trial.” Id. at 568-69

(quoting Wilson, 420 U.S. at 342). Because no guilty verdict

was returned before the district court granted the defendants’

motions for acquittal, reversing the district court would have

necessarily created the threat of a second prosecution for the

same act, in violation of the Double Jeopardy Clause. Id. at

569-70; 575-76. Accordingly, no appellate review was available under § 3731. 

[2] Sitting as an appellate court reviewing the magistrate’s

decision, the district court here did not style its order as a

Rule 29 acquittal. Instead, the district court stated that

because of “the insufficiency of the evidence to support the

finding of guilt on Count I,” Stanton’s conviction on that

count was ordered reversed, and a finding of not guilty was

ordered to be entered. Regardless of its form, the district

court’s order is clearly an acquittal in substance because it

represents “a determination that the evidence was insufficient

11156 UNITED STATES v. STANTON
to convict.” United States v. Ogles, 440 F.3d 1095, 1103 (9th

Cir. 2006) (en banc). 

[3] Accordingly, under Martin Linen the district court’s

judgment of acquittal is appealable unless reversing the district court’s order would violate the Double Jeopardy Clause.

Stanton makes no argument on this point, nor can he. Because

reversal of the district court’s order would merely reinstate

the guilty verdict entered by the magistrate, our review “does

not offend the policy against multiple prosecution.” Wilson,

420 U.S. at 345. Not only does this conclusion flow naturally

from Wilson and Martin Linen, but it also aligns with the

jurisprudence of the other circuits that have considered the

issue, each of which has determined that § 3731 authorizes a

government appeal where a district court either reverses a

conviction entered by a magistrate (as here), or affirms a magistrate’s judgment of acquittal after a jury verdict of guilty.

See United States v. Duncan, 164 F.3d 239, 242 (5th Cir.

1999); United States v. Aslam, 936 F.2d 751, 754 (2d Cir.

1991); United States v. Forcellati, 610 F.2d 25, 29-30 (1st

Cir. 1979); United States v. Moore, 586 F.2d 1029, 1031-32

(4th Cir. 1978). 

[4] We dispose quickly of Stanton’s other jurisdictional

argument — that § 3731 does not apply because he was

charged under a criminal complaint, rather than an indictment

or information. The various charging documents are unquestionably distinct. Compare Fed. R. Crim. P. 3, with Fed. R.

Crim. P. 6(f) and Fed. R. Crim. P. 7(c). However, Stanton’s

position cannot be reconciled with Wilson’s central holding

that § 3731 should be applied to “allow appeals whenever the

Constitution would permit.” Wilson, 420 U.S. at 339. Nor can

it be squared with the statutory mandate that § 3731 “shall be

liberally construed to effectuate its purposes,” which the

Supreme Court has identified as “avoid[ing] creati[on] [of]

nonconstitutional bars to the Government’s right to appeal.”

Id. Stanton has simply shown no constitutional reason why

§ 3731 should not apply because he was charged under a

UNITED STATES v. STANTON 11157
criminal complaint, rather than under an indictment or information. Accordingly, we join the Second and Fourth Circuits

in holding that § 3731 authorizes a government appeal under

the circumstances of this case. See Aslam, 936 F.2d at 754;

Moore, 586 F.2d at 1031. 

B. Sufficiency of the evidence

We next consider whether the district court erred by concluding that insufficient evidence existed to support Stanton’s

conviction on Count One. 

On appeal to the district court, Stanton was not entitled to

a trial de novo. Rather, the appropriate scope of the district

court’s review “is the same as in an appeal to the court of

appeals from a judgment entered by a district judge.” Fed. R.

Crim. P. 58(g)(2)(D). That standard is familiar and welldefined. Claims of insufficient evidence are reviewed de

novo. United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th Cir.

2004). There is sufficient evidence to support a conviction if,

“viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson,

443 U.S. at 319. As Jackson explained, this deferential standard of review protects the trier of fact’s responsibility to

resolve conflicting testimony, weigh the evidence, and draw

reasonable inferences from the evidence presented. Id. A

reviewing court need not “ask itself whether it believes that

the evidence at the trial established guilt beyond a reasonable

doubt.” Id. at 318-19 (internal quotation marks and citation

omitted). Rather, the reviewing court must respect the province of the trier of fact by considering all evidence in the light

most favorable to the prosecution and drawing all reasonable

inferences in favor of the prosecution. Wright v. West, 505

U.S. 277, 296-97 (1992); United States v. Alvarez-Valenzuela,

231 F.3d 1198, 1201 (9th Cir. 2000). Finally, “a reviewing

court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affir11158 UNITED STATES v. STANTON
matively appear in the record — that the trier of fact resolved

any such conflicts in favor of the prosecution, and must defer

to that resolution.” Wright, 505 U.S. at 296-97 (internal quotation marks omitted). 

To convict on Count One the magistrate was required to

find beyond a reasonable doubt that Stanton: (1) was operating a vehicle; (2) while under the influence of alcohol; (3) to

a degree that rendered him incapable of safe operation. 36

C.F.R. § 4.23(a)(1). The first two elements are not in dispute.

Considering the evidence put on at trial in the light most

favorable to the government, drawing all reasonable inferences therefrom and resolving any evidentiary conflicts in the

government’s favor, we hold that a rational trier of fact could

have found beyond a reasonable doubt that Stanton was incapable of safely operating his vehicle. 

[5] First, the record reflects that over the course of three

hours Stanton consumed numerous glasses of at least four different wines. After having done so, he took a nighttime drive

at seventy miles an hour — twenty-five miles per hour above

the posted limit — and when he was pulled over he told

Koschmann he did not think he was going that fast. The reasonable inferences arising from these facts alone support the

magistrate’s conclusion that Stanton “was speeding but

wasn’t paying attention to what his speedometer said.” 

[6] Second, Koschmann’s observations of Stanton in the

field significantly support the conviction. Koschmann, who

had made between fifty and seventy-five stops for driving

under the influence, and approximately twenty arrests,

observed a “strong odor” of alcohol on Stanton’s person. She

also saw that his eyes were bloodshot and watery, and that his

speech was very slow and deliberate. Furthermore, Koschmann observed that Stanton’s balance was unsteady when he

stepped out of the car, and that he generally swayed and wobbled during the course of her field evaluation. Although any

of these factors — singly or collectively — might be

UNITED STATES v. STANTON 11159
explained innocently, “the prosecution need not affirmatively

rule out every hypothesis except that of guilt.” Wright, 505

U.S. at 296 (internal quotation marks and citation omitted).

Given the uncontroverted record evidence that Stanton had

consumed wine consistently from 6-9 p.m., these field observations support the reasonable inference that Stanton was

under the influence of alcohol to an unsafe degree. 

[7] Objective evidence that Stanton failed two FSTs also

supports the magistrate’s verdict. Koschmann testified that

Stanton failed all four portions of the “one-leg stand test,”

which the ranger ultimately stopped to ensure Stanton’s

safety. The record also shows that Stanton showed six of eight

possible clues of intoxication during the “walk-and-turn test,”

in which evidence of two clues can generally establish impairment that makes driving unsafe. Furthermore, Koschmann

explained the significance of the “walk-and-turn test” in that

it tests “many of the same skills needed for driving,” such as

small muscle control, information processing, reaction, balance, coordination, and short-term memory. Stanton’s admissions further support the magistrate’s verdict. He does not

dispute that after drinking from 6-9 p.m. that night he rated

himself a “four” on a 1-10 scale of intoxication, nor does he

dispute that he told the interviewing officer: “I feel buzzed. I

felt more of a buzz when you pulled me over.” 

Viewing this body of evidence as a whole and in the light

most favorable to the government, and drawing all reasonable

inferences therefrom in the government’s favor, Stanton cannot show that “no rational trier of fact could have found proof

of guilt beyond a reasonable doubt.” Garcia v. Carey, 395

F.3d 1099, 1102 (9th Cir. 2005) (quoting Jackson, 443 U.S.

at 324). His arguments to the contrary may be disposed of

quickly. 

Stanton first contends the magistrate ignored numerous

contradictions in Koschmann’s testimony. However, to the

extent any inconsistency bore on Koschmann’s credibility it

11160 UNITED STATES v. STANTON
can reasonably be inferred that the magistrate chose to credit

the ranger’s testimony, a function squarely within its province. Alvarez-Valenzuela, 231 F.3d at 1201-02. To the extent

any inconsistency militates against a finding that the government carried its burden of proof, consideration of the evidence

in this case in the light most favorable to the government, as

discussed above, persuades us that a rational trier of fact

could have found proof of guilt beyond a reasonable doubt.

Jackson, 443 U.S. at 319. 

Stanton also argues that the magistrate ignored evidence

that the FSTs were conducted on un-level ground, and therefore are not trustworthy. However, record evidence also indicates that the tests were performed on a flat, dry, paved

surface. Under binding precedent we must presume, “even if

it does not affirmatively appear in the record,” that the magistrate resolved this conflict in favor of the prosecution, and we

must defer to that resolution. Jackson, 443 U.S. at 326. 

Stanton did not object at trial to admitting the PBT results

to establish probable cause, but objected to their use for any

other purpose, and the magistrate admitted the results solely

for the limited purpose of establishing probable cause to

arrest. Even assuming that Stanton’s failure to object to

admission of the evidence for this limited purpose constitutes

forfeiture, rather than waiver, plain error analysis applies.

United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en

banc). Simply, Stanton has not shown how the magistrate

erred, much less plainly erred. Stanton’s related argument that

Koschmann did not have probable cause to arrest is similarly

without merit. In addition to the PBT tests indicating his BAC

was above the legal limit, Koschmann had observed Stanton’s

watery and bloodshot eyes, unsteady balance, slow speech,

and strong odor of alcohol. She had also observed him fail

two FSTs. Given the totality of the circumstances known to

Koschmann at the time, there was a “fair probability that [the

suspect] had committed a crime.” Peng v. Penghu, 335 F.3d

970, 976 (9th Cir. 2003) (alteration in original). 

UNITED STATES v. STANTON 11161
Stanton also argues that the magistrate ignored evidence

indicating that he was sober. However, as noted, we must presume that the magistrate resolved any conflict between evidence indicating sobriety and the substantial evidence

indicating impairment, and resolved that conflict in favor of

the prosecution. Moreover, we must defer to that resolution.

Wright, 505 U.S. at 296-97. 

[8] Given the record evidence, and all reasonable inferences arising therefrom, considered in the light most favorable to the government, a rational trier of fact could have

found beyond a reasonable doubt that Stanton was impaired

to the point that he could not safely operate his vehicle.

Accordingly, we reverse the district court’s ruling to the contrary. On remand the district court is ordered to reinstate the

magistrate’s guilty verdict. 

REVERSED and REMANDED.

11162 UNITED STATES v. STANTON