Commonwealth of the Northern Mariana Islands, Plaintiff/Appellee, v. Francisco M. Cabrera, Defendant/Appellant
Commonwealth v. Cabrera
Appeal No. 93-026; Criminal Case No. 92-0090
BEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and ATALIG, Justices.
Commonwealth of the Northern Mariana Islands, Plaintiff/Appellee, v. Francisco M. Cabrera, Defendant/Appellant.
Commonwealth of the Northern Mariana Islands, Plaintiff/Appellee, v. Francisco M. Cabrera, Defendant/Appellant.
Appeal No. 93-026
Criminal Case No. 92-0090
April 7, 1995
Argued and Submitted July 15, 1994
Counsel for appellant: Douglas F. Cushnie, Saipan.
Counsel for appellee: Russell E. Marsh, Assistant Attorney General, Saipan.
BEFORE: DELA CRUZ, Chief Justice, and VILLAGOMEZ and ATALIG, Justices.
VILLAGOMEZ, Justice:
Francisco M. Cabrera appeals his conviction and sentence for the offense of delivery of methamphetamine hydrochloride, a crystalline, controlled substance more commonly known as "ice." The jury rejected Cabrera's defense of entrapment.
We have jurisdiction over this appeal pursuant to 1 CMC § 3102(a). We affirm Cabrera's conviction but vacate the sentence imposed because of our belief that the trial court misinterpreted the sentencing statute.
ISSUES
Cabrera raises six issues for our review:
1. Whether the court erred in admitting Cabrera's confession.
2. Whether the court erred in admitting into evidence: (a) two packets of ice allegedly sold by Cabrera (Exhibit 8); (b) a list of serial numbers of the $100 bills allegedly used to buy the ice sold by Cabrera (Exhibit 1); or (c) the $100 bills themselves (Exhibit 3).
3. Whether the court erred in denying Cabrera's motion for a judgment of acquittal.
4. Whether the court erroneously instructed the jury as to the burden of proof for the defense of entrapment.
5. Whether the trial court erred in sentencing Cabrera under 6 CMC § 2141(b)(1).
6. Whether Cabrera's conviction and sentence should be reversed due to cumulative error.
FACTUAL &
PROCEDURAL BACKGROUND
On May 20, 1992, Cabrera approached Frank Camacho, a friend and fellow Department of Public Works employee with whom Cabrera had smoked ice in the past. Cabrera offered to sell Camacho some ice.
Camacho, it turned out, was a police informant ("the informant"). The informant called Officer Norita of the Department of Public Safety (DPS) and told him about Cabrera's offer. The informant, Norita, and DPS agents planned a "buy-bust," or police-controlled purchase of the ice by the informant, for that afternoon. Under the scheme, the informant would "buy" three packets of ice from Cabrera with money provided by the police. The police would monitor the transaction from a nearby location and then arrest Cabrera upon completion of the "sale."
DPS Agent Sokau gave the informant fifteen $100 bills, totaling $1,500. Sokau prepared a receipt that listed the serial number of each bill.
The informant proceeded to a location pre-arranged with Cabrera. In the informant's car, Cabrera gave him at least two packets containing a crystalline substance, and the informant paid Cabrera $1,500.
At a signal from the informant, nearby DPS agents approached the scene and arrested Cabrera. They took him to DPS headquarters, strip-searched him, and found another packet of what appeared to be ice in his sock.
A DPS officer read Cabrera his constitutional rights from a DPS standard rights form. Cabrera initialed each paragraph of the form to indicate that he understood his rights, then signed at the bottom of the form to signify that he wanted to waive his rights.
Sokau questioned Cabrera for two-and-one-half hours. Cabrera confessed to having sold ice to the informant. Sokau reduced Cabrera's statement to writing and Cabrera signed it.
A DPS agent recovered two packets containing a crystalline substance from the informant's car. The informant said that they were the packets he purchased from Cabrera. Tests at DPS headquarters and later at the Guam Crime Laboratory indicated that the crystalline substance was ice.
By a three-count amended information, the government charged Cabrera with the following drug offenses: possession of a controlled substance (ice) with intent to deliver, delivery of a controlled substance (ice), and possession of a controlled substance (marijuana). Cabrera pleaded not guilty at his arraignment on May 22, 1992.
At trial, Cabrera objected to the admission of his confession into evidence. The court heard arguments and overruled the objection, concluding that DPS's rights form adequately advised Cabrera of his rights, and that he confessed voluntarily after being apprised of his rights.
Cabrera also objected to the admission of the ice, list of serial numbers of the fifteen $100 bills, and the $100 bills themselves. The court overruled these objections.
After the government rested its case-in-chief, Cabrera moved for a judgment of acquittal on all three counts. The court granted the motion as to Count III (possession of marijuana).
Cabrera presented evidence and testified that he was entrapped. He then rested and renewed his motion for acquittal on Counts I and II at the close of all the evidence. The court again denied the motion.
The court instructed the jury on the defense of entrapment. The jury found Cabrera not guilty of possession of a controlled substance (ice) with intent to deliver, but found him guilty of delivery of a controlled substance (ice).
At sentencing, the government argued that, under the applicable sentencing statute, the court was required to sentence Cabrera to at least a five-year prison term without suspension, probation or parole. Cabrera contended, however, that the applicable statute did not mandate a prison term, but that, if the court chose to impose a prison term, there was a mandatory minimum.
The court sentenced Cabrera to an eight-year prison term, with three years suspended and five years to be served without parole, probation, or suspension. Cabrera timely appealed.
ANALYSIS
I. Admission of Cabrera's Confession
Cabrera contends that DPS's "Your Constitutional Rights" form is constitutionally defective and inadequate, rendering his confession inadmissible per se. He also argues that, assuming the form is adequate, the totality of circumstances made his confession involuntary and it should not have been admitted into evidence.
Whether DPS's constitutional rights form is adequate, for purposes of Miranda v. Arizona, is a question of law reviewable de novo. The issue of the voluntariness of one's confession, under a totality of the circumstances test, is a mixed question of law and fact, but the ultimate issue of voluntariness is a legal question. Our review of either issue is de novo.
The U.S. Supreme Court established in Miranda "a procedural mechanism that safeguards the exercise of the [U.S. Constitution's] Fifth Amendment privilege against the inherently coercive effects of custodial interrogation." In order for the government to introduce Cabrera's confession, the confession must have been obtained with proper Miranda safeguards.
We must first examine the adequacy of the constitutional rights form, and then the totality of the circumstances surrounding Cabrera's waiver and confession.
A. Adequacy of the Constitutional Rights Form
Miranda requires, among other things, that an accused be adequately apprised of his or her rights to remain silent and to the presence of retained or appointed counsel during custodial interrogation. Cabrera, relying on Commonwealth of the N. Mariana Islands v. Mendiola contends that the constitutional rights form read to him by the police, identical to the form used in Mendiola, rendered his confession involuntary per se. We are not persuaded that Mendiola makes a confession per se inadmissible where the police use the DPS form in question.
In Mendiola, the Ninth Circuit found misleading that portion of the form which states:
I am required by law to make a reasonable effort to send a message by telephone, cable, wireless, messenger or other faster means to a lawyer or counsel, member of your family, your employer or your employer's representative if you so request, if such message can be sent without expense to the government or your [sic] pay in advance any expense there may be to the government. . . ,
This paragraph of the form tracks local law and is followed by a standard recitation of Miranda rights, including the statements: "You have a right to consult with a lawyer and to have a lawyer present with you while you are being questionedf; y]ou may stop talking to me an any time and demand a lawyer at any time," and "[i]f you want a lawyer but are unable to pay for one, a lawyer will be appointed to represent you free of any cost to you."
The Mendiola court found the DPS form misleading because the defendant's "ability to draw the inference that he was entitled to appointed counsel before and during questioning was made more tenuous by the [form's] initial statement that a lawyer or other person would not be contacted unless it could be accomplished at no cost to the government." The court expressly refrained from "decid[ing], however, whether this error alone rendered] Mendiola's confessions inadmissible." Instead, the court ruled the confession inadmissible based on the totality of the circumstances. It concluded that suppression was warranted due to a combination of "the apparent involuntariness of Mendiola's statements, improper police tactics, and faulty Miranda warnings." In this case, there are no other circumstances to justify suppression of the confession. Thus, the issue is whether the use of the "Your Constitutional Rights" form alone rendered Cabrera's confession inadmissible.
In Duckworth v. Eagan, the U.S. Supreme Court reviewed a constitutional rights form that stated: '"You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning,"' and '"[w]e have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.'" The Seventh Circuit ruled that these specific statements were misleading. The Supreme Court disagreed, holding that, when considered in the context of the warnings as a whole, the warnings satisfied Miranda.
The constitutional rights form used in this case and in Duckworth were the same in that one portion was questionable. After considering the warnings in the "Your Constitutional Rights" form as a whole, as the court did with respect to the totality of the warnings given in Duckworth, we conclude that the form alone did not warrant suppression of Cabrera's confession.
B. Totality of the Circumstances
Cabrera argues that, under the totality of the circumstances test, his confession was involuntary and inadmissible. In addition to the defect in the constitutional rights form, he points out that (1) he was upset and could only think about his family when his rights were being read to him, (2) the rights form is in English and his first language is Chamorro, (3) he was not offered any food or drink during the two-and-one-half hours of questioning, and (4) the officers promised to release and not file charges against him if he cooperated. As discussed below, viewing all of the circumstances of the interrogation, we find that Cabrera waived his Miranda rights and confessed voluntarily.
For a confession to be admissible, the government must establish that the defendant voluntarily waived his or her rights. In assessing the issue of voluntariness, we examine the totality of the circumstances surrounding a defendant's waiver of his or her constitutional rights. The circumstances include the characteristics of the defendant and the details of questioning by the government. Absent coercion on the part of the police, a confession will not be deemed involuntary.
We have already determined that the use of the DPS constitutional rights form did not, by itself, make Cabrera's confession inadmissible. Our review of the circumstances under which Cabrera was interrogated, in their totality, does not reveal any police coercion or that Cabrera was unable to comprehend, or rationally respond to, the spoken and written warnings, information, and questions posed by the police.
First, the fact that Cabrera felt upset and was thinking of his family did not render him incapable of knowingly waiving his rights. Second, the record establishes that Cabrera understands English, and the interrogating officer spoke both English and Chamorro. Parts of the constitutional rights form were translated into Chamorro for Cabrera. Third, although DPS officers may not have offered Cabrera food or drink, there is no indication either that Cabrera requested something to eat or drink, or that the officers denied him food or drink as a coercive measure. Additionally, Cabrera was not questioned by the police for a prolonged period. Fourth, Cabrera's assertion that he was promised release and that he would not be prosecuted if he cooperated was adequately refuted by witnesses called by the government. The conflicting testimony raised a question of fact which the trial court decided in favor of the government. We are not at liberty to disturb factual findings which hinge on the trial court's assessment of a witness's credibility.
We hold that, applying a totality of the circumstances analysis, Cabrera voluntarily waived his rights and confessed. The trial court did not err by admitting the confession into evidence.
BE. Admissibility of the Money and Ice
Cabrera claims that the ice and fifteen $100 bills were erroneously admitted, without proper foundation. He also asserts that the receipt listing the serial numbers of the fifteen $100 bills was erroneously admitted because it was irrelevant.
We review the admission of evidence for an abuse of discretion. Where a real or physical object is offered for admission into evidence, the proponent must show that (1) the object was the same one involved in the alleged incident, and (2) the condition of the object is substantially unchanged. For the following reasons, we are unpersuaded by Cabrera's assignments of error.
A. The List of Serial Numbers and the $100 Bills
Cabrera claims error on the ground that the government did not present any evidence to show how the police obtained the $1,500 from Cabrera after his arrest. Appellant's Brief at 20. Thus, he argues, the $100 bills were admitted without foundation and the list was irrelevant. We disagree.
Sokau identified the bills at trial through the receipt listing the bills' serial numbers. Sokau testified that he gave the informant fifteen $100 bills to purchase ice from Cabrera. Sokau testified that he prepared the list of the bills' serial numbers. The trial court admitted the list and the bills over Cabrera's objection.
The list of the bills' serial numbers was relevant to authenticate the bills used and recovered from Cabrera. Through the list of serial numbers, Sokau specifically identified all but one of the fifteen $100 bills. The absence of testimony tracing the bills received after the arrest was not critical in light of the direct testimony given by both Cabrera and the informant. They both testified that the informant gave Cabrera $1,500 for the ice. We find no abuse of discretion in the admission of either the $100 bills or the list of the bills' serial numbers.
B. The Ice
Cabrera argues that the government failed to establish a chain of custody showing that the ice that he sold to the informant was the same as that introduced by the government at trial. He contends that the ice therefore should not have been admitted into evidence.
"A trial judge is correct in allowing physical evidence to be presented to the jury as long as a reasonable jury could decide that the evidence is what the offering party claims it to be." Additionally,
Courts require sufficient testimony to permit a reasonable inference that the object offered is what the proponent claims it to be, and the question whether the 'chain of custody' requirement has been satisfied depends upon 'the nature of the article, the circumstances surrounding its preservation and custody, and the likelihood of others tampering with it.,
Generally, a break in the chain affects the weight of the evidence and not its admissibility. As long as the proponent of the evidence establishes a threshold level of admissibility, the trial court's determination should be respected on appeal absent a clear abuse of discretion.
The record shows that there was a chain of custody linking the ice that Cabrera sold to the informant to the ice packets that were offered as evidence at trial. Agent Mangerero testified that he recovered two packets of ice from the informant after the buy-bust. Mangerero transported the evidence to DPS headquarters, where he placed the two packets into a larger plastic container. He then delivered the container to Agent Salas for field testing. He and Salas tested the substance, which registered "presumptive positive" for amphetamines. Salas also weighed the substance in the packets.
After testing, the two packets were heat-sealed into the larger plastic container, upon which Mangerero placed his initials. He then gave the container to Sokau. Mangerero and Salas testified that the two "internal" packets were placed into one larger container. Sokau, however, testified that he received only one bag, which contained only one packet inside, from Mangerero. Sokau stated that he then placed the container in a drawer of Lieutenant Concepcion's desk. Concepcion stated that he received the larger plastic container a week later. Concepcion subsequently placed the container in DPS's locked evidence room, and shortly thereafter released the container to Sokau for a period of about five weeks, until Sokau returned the evidence to him. Concepcion then released the evidence to Sokau for it to be transported to Guam for testing.
In Guam, the substances in the two internal packets were combined for testing, determined to be ice, and returned to DPS in one packet via registered mail. The ice was then kept in Sokau's locker, apart from a brief release to counsel for the government, until trial.
Cabrera makes three arguments in support of his position that the ice did not meet the required threshold of admissibility. First, he asserts that because Sokau remembered the container as having only one internal packet, rather than two, the government was unable to authenticate the ice.
Mangerero and Salas were the agents who handled the ice after the buy-bust, and Salas heat-sealed the two packets into the larger, single container. Sokau was not the agent involved in this process. Sokau and Concepcion, in turn, testified that the container was not altered between the time it was delivered by Sokau to Concepcion and the time it was sent to Guam for testing. The witness who ultimately testified to receiving the container in Guam stated that two internal packets were present in the larger container, buttressing the position that the two smaller packets were inside the heat-sealed, larger container. Sokau's belief that only one internal bag of the substance was sent to the locker room, rather than two, is insufficient, in light of the other evidence, to alter our conclusion that the threshold of admissibility was met for purposes of foundation.
Second, Cabrera contends the ice was inadmissible because it remained in Concepcion's desk for a week prior to being locked in the evidence room, and because it was placed in Sokau's locker, which was accessible to DPS personnel other than Sokau for a certain period before trial. We do not in any way condone such sloppy police practice, but in the absence of any showing that the substances were tampered with while in Concepcion's desk or Sokau's locker, we will not presume that tampering occurred.
Third, Cabrera asserts that there was a difference in weight between the ice tested on Guam and the ice that Salas field tested. The government attributes the difference to the fact that Salas weighed the ice and the packaging, and the Guam crime lab weighed the ice without the packaging. The difference between the weight tested by the crime lab and by DPS was slightly less than .1 gram. This is just under .0035 ounces, which the government explains was the weight of the bags in which the ice was packaged.
The government's explanation is plausible. Again, without a showing of bad faith or proof that the substance was somehow altered while in the custody of the government, we find no abuse of discretion. The discrepancy in the weight was not necessarily material, as a threshold matter, as to whether the evidence was admissible. We are not persuaded that the trial court abused its discretion in admitting the ice.
m. Denial of Motion for Judgment of Acquittal
Cabrera claims that the trial court erred in denying his motion for a judgment of acquittal as to Count I, which charged him with delivery of ice.
Cabrera confines his argument to two points: first, the trial court erred in admitting into evidence both the list of $100 bills' serial numbers (Exhibit 1), the $100 bills themselves (Exhibit 3), and the two packets of ice (Exhibit 8); second, absent this evidence, a reasonable fact finder could not have found Cabrera guilty beyond a reasonable doubt of delivery of ice.
As discussed above, the court did not err in admitting the list, the bills or the ice. Therefore, Cabrera's challenge to the denial of his motion for a judgment of acquittal fails.
TV. Jury Instruction on Burden of Proof for the Defense of Entrapment
Cabrera contends that the jury instruction given on entrapment misstated the law as to this defense. He asserts that it failed to include specific language on the government's burden of proof to show the accused's predisposition to commit the crime charged. Our review of the record shows otherwise.
Cabrera asserts that the trial court erroneously instructed the jury using the "subjective" test of entrapment, instead of the "objective" test followed by the majority of jurisdictions. The subjective test focuses on the criminal predisposition of the accused prior to government contact and reserves the issue of predisposition to the trier of fact. The objective test, used by a minority of jurisdictions, is designed to ensure proper police conduct, and the question of entrapment is usually decided by the court. We adopt the subjective test, particularly the version followed by the federal courts.
The defense of entrapment has two elements: "(1) government inducement of the crime, and (2) the absence of predisposition on the part of the defendant." Once the defendant has shown evidence of inducement, the burden shifts to the government to prove that the defendant was '"predisposed to violate the law before the government intervened.'" The court rules on the issue of entrapment if it can be decided as a matter of law; that is, where the facts are undisputed. Otherwise, the issue of entrapment is reserved for the trier of fact (in this case, the jury) "as part of its function of determining guilt or innocence of the accused."
Cabrera claims that the trial court's instruction, which was based on the subjective test, did not clearly specify that the government had the burden of proving predisposition, and thus the court committed reversible error. The instruction given provides, in pertinent part: "In order to return a verdict of guilty . . . you must find beyond a reasonable doubt that the defendant had a previous intent or disposition or willingness to commit the crime charged."
In our review of a jury instruction we must assess whether the jury instructions "as a whole" were misleading or inadequate to "guide the jury's deliberation." Although the jury instruction could have been more specific, we cannot say that it was inadequate in view of all the instructions.
Immediately prior to giving the entrapment instruction, the trial court stated:
The jury will remember that a defendant is never to be convicted on mere suspicion or conjecture. The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. The burden never shifts to the defendant for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
Prior to this, the court had told the jury not to "single out any particular sentence or any individual point of instruction and ignore the others," and to "[c]onsider the instructions as a whole and each in light of all the others." These statements by the court, when read in conjunction with the challenged entrapment instruction, adequately apprised the jury of the government's burden of showing predisposition.
V. Sentencing under 6 CMC § 2141(b)(1)
Cabrera argues that the trial court misinterpreted the applicable sentencing statute as mandating a prison term of at least five years without suspension, probation or parole. A trial court's interpretation of a statute is subject to de novo review.
The provision in question provides:
(b) Any person who violates subsection (a) of this section with respect to:
(1) . . . methamphetamine[ jhydrochloride may be sentenced to a term of imprisonment for not more than 10 years, a fine of not more than $10,000, or both; provided, however, the term of imprisonment shall not be less than five years and not subject to suspension, probation or parole .
Cabrera argues that subsection (b)(1) gives the trial court discretion to impose a sentence of imprisonment or a fine or both. The government asserts that the language of subsection (b)(1) prescribes a mandatory prison term of five years without suspension, probation, or parole. The government contends that the court may exercise its discretion only to impose a prison term greater than five years and/or a fine.
We agree with Cabrera's reading of the statute. We are not certain, however, that the trial court misinterpreted the statute in sentencing Cabrera.
After considering the parties' arguments about the statutory guidelines during sentencing, the court stated:
I have searched for an alternative sentencing for you . . . and I just couldn't find one. I believe that the statute calls for a mandatory sentence and that the only alternative sentencing for you is to serve, to sentence you to a term of imprisonment pursuant to the statute.
I understand that the argument for the purposes of sentencing as to whether or not it should be a purpose of punishing you, . . . that's what the legislature decide[d], I believe, is to punish people who violate the law with respect to selling, possession and distributing a dangerous substance called ice. And I believe the legislature, in passing the Substance Control Act, also decided that a term of imprisonment is for the purpose of deterring others from committing the same acts. And, . . . that when the legislature decided to pass the statute, they also thought about the purposes of sentencing as a rehabilitative tool. . . . And I think that all of this ha[s] been considered by the legislature when they pushed] the statute calling for a minimum mandatory sentence.
I don't believe that a fine will do you any good. That money should be used to, at least, help your family through these times while you're incarcerated.
The government then asked the court to order that the five-year sentence not be subject to suspension, probation, or parole. The court responded: "It will be that, that is as stated in the statute and I sentenced the defendant pursuant to the statute." Counsel for Cabrera requested clarification, saying "[t]he court's view is that there is a mandatory minimum requirement, correct[?]" The court answered "[t]hat's correct."
Notwithstanding Cabrera's attorney's attempt to obtain a clear statement of the trial court's interpretation of the sentencing statute, we have difficulty determining precisely whether the court believed the statute required it to impose a mandatory minimum of five years of imprisonment, without suspension, probation, or parole. On one hand, the court's statements may be an expression of its belief that, once it decided to impose a prison sentence, the term of imprisonment had to be a minimum of five years without suspension, parole, or probation. The court did not, however, clearly state that the statute did not preclude it from imposing an alternative sentence consisting of, for example, only a fine. The court may have "searched for an alternative," decided that a fine would not do Cabrera "any good," and concluded that a sentence of eight years of imprisonment would be appropriate. If this was the interpretation followed by the court, the sentence it formulated falls well within the statutory guidelines and there is no error.
On the other hand, however, the court appears to have interpreted the sentencing statute as Cabrera contends: i.e., that it was obligated to impose a prison term of five years without probation, suspension or parole, plus more prison time, or a fine, or both, to be added to the five-year prison term at the court's discretion. Because we are unable to determine from the record exactly how the trial court interpreted the statute in question, we have no recourse but to remand this issue for clarification and, if necessary, resentencing.
CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of conviction of delivery of methamphetamine hydrochloride entered against Cabrera. We VACATE the sentence imposed to give the trial court an opportunity to clarify its interpretation of the sentencing statute. If its interpretation is in line with our ruling herein, the sentence shall be reinstated. If not, Cabrera shall be re-sentenced.
We do not reach this issue because we affirm as to all questions pertaining to Cabrera's conviction, compare Commonwealth v. Saimón, 3 N.M.I. 365, 399 (1992) (holding that no cumulative error exists where court affirms on all other issues), and vacate his sentence on grounds other than cumulative error.
The parties dispute whether Cabrera gave the informant three bags of ice, or only two. The route taken by the two packets in question (Exhibit 8), from seizure by the police to introduction at trial, is discussed in detail in Analysis section 11(B), infra.
See 6 CMC § 2141(a)(2).
See 6 CMC § 2141(a)(1).
See 6 CMC § 2142.
Cabrera did not make a motion to suppress his confession. Such motions are normally made prior to trial, pursuant to Com. R. Crim. P. 12(b)(3).
Transcript of Proceedings at 143-44, Commonwealth v. Cabrera, Crim. No. 92-0090 (N.M.I. Super. Ct. Mar. 17, 1993).
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Commonwealth of the N. Mariana Islands v. Mendiola, 976 F.2d 475, 482 (9th Cir. 1993).
See Commonwealth v. Ramangmau, 4 N.M.I. 227, 235 (1995).
Campbell v. Wood, 18 F.3d 662. 672 (9th Cir. 1994), cert. denied,_U.S._, 114 S. Ct. 1337, 127 L. Ed. 2d 685 (1994).
Kirsten M. Eriksson, Custodial Interrogations, Project, Twenty-Third Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1992-1993, 82 Geo. LJ. 733, 734 (1994) (footnote omitted).
See id. at 735.
See Miranda, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07; Ramangmau, 4 N.M.I. at 235 (citing Miranda).
976 F.2d 475 (9th Cir. 1993).
Id. at 482.
Supplemental Excerpts of Record at 1; Mendiola, 976 F.2d at 482.
Mendiola, 976 F.2d at 483 (emphasis in original).
Id.
Id. at 486.
See discussion in part 1(B), infra.
492 U.S. 195, 109 S. Ct. 2875. 106 L. Ed. 2d 166 (1989).
Id., 492 U.S. at 198, 109 S. Ct. at 2877, 106 L. Ed. 2d at 174 (emphasis omitted).
Id. (emphasis omitted).
Id. 492 U.S. at 205, 109 S. Ct. at 2881, 106 L. Ed. 2d at 178.
Ramangmau, 4 N.M.I. at 235.
Id.
Id., 4 N.M.I. at 236.
Id.
See Commonwealth v. Taitano, 2 CR 356, 360 (D.N.M.I. App. Div. 1985) ("[Tit is not the province of [an appellate court] to reassess the credibility of witnesses") (citation and internal quotation marks omitted); Manglona v. Kaipat, 3 N.M.I. 322, 335-36 (1992) (Supreme Court accords particular weight to trial judge's assessment of conflicting and ambiguous testimony of witnesses).
Saimon, 3 N.M.I. at 375 n.2.
United States v. Miller, 994 F.2d 441, 443 (8th Cir. 1993) (citing Charles T. McCormick, et al., McCormick ON Evidence § 212 (2d ed. 1972)).
Transcript of Proceedings, supra note 7, at 52.
Id. at 52-53.
See Com. R. Evid. 901. This rule states, in relevant part:
(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
Id.: see also United States v. Jardina. 747 F.2d 945, 951 (5th Cir. 1984) (when presented evidence of questionable origin, court should admit evidence if proponent makes prima facie showing of authenticity), cert. denied, 470 U.S. 1058, 105 S. Ct. 1723, 84 L. Ed. 2d 833 (1985).
Sokau noted one minor discrepancy between the serial number on his list and the serial number on one of the $100 bills. We reject Cabrera's argument that this rendered all of the fifteen $100 bills inadmissable on authentication grounds.
United States v. Casto, 889 F.2d 562, 568 (5th Cir. 1989) (citation omitted), cert. denied, 493 U.S. 1092, 110 S. Ct. 1164, 107 L. Ed. 2d 1067 (1990).
Christopher B. Mueller & Laird C. Kirkpatrick, 5 Federal Evidence § 520 (2d ed. 1994) (footnotes omitted).
Casto, 889 F.2d at 569.
United States v. Godoy, 528 F.2d 281, 283 (9th Cir. 1975) (per curiam).
Transcript of Proceedings, supra note 7, at 248.
Id. at 253-55, 257.
Id. at 343-45.
Id. at 257.
Id. at 404-05.
Id. at 406-07.
Id. at 387.
Id. at 168-69, 388-91.
Id. at 483, 491, 495.
Id. at 175-81.
See Miller, 994 F.2d at 443-44.
Id. at 443.
We review this issue de novo, and consider all of the evidence in the light most favorable to the government to determine whether any rational trier of fact could have found guilt beyond a reasonable doubt on the essential elements of the offense. Rainangmau, 4 N.M.I. at 237.
See Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819. 2 L. Ed. 2d 848 (1958) (majority adopting subjective test and Frankfurter, J., concurring, urging adoption of objective test).
United States v. Mkhsian, 5 F.3d 1306, 1309 (9th Cir. 1993) (citation and internal quotation marks omitted).
Id., 5 F.3d at 1311 (quoting Jacobson v. United States, 503 U.S._, 112 S. Ct. 1535, 1541 n.2, 118 L. Ed. 2d 174, 184 n.2 (1992) (emphasis in original)).
Mkhsian, 5 F.3d at 1309 (citations and internal quotation marks omitted).
Transcript of Proceedings, supra note 7, at 710.
United States v. Varela, 993 F.2d 686, 688 (9th Cir.) (citation and internal quotation marks omitted), cert. denied, _U.S._, 114 S. Ct. 232, 126 L. Ed. 2d 186 (1993).
Transcript of Proceedings, supra note 7, at 709.
Id. at 696.
Id.
The instruction given is similar to others unsuccessfully challenged on the same grounds. See, e.g., United States v. Moore, 921 F.2d 207, 210 (9th Cir. 1990); United States v. Abushi, 682 F.2d 1289, 1301 n.7 (9th Cir. 1982); see also United States v. Nixon, 777 F.2d 958, 965-67 (5th Cir. 1985); United States v. Rivera, 778 F.2d 591. 601-02 (10th Cir. 1985), cert. denied, 475 U.S. 1068, 106 S. Ct. 1068, 89 L. Ed. 2d 609 (1986); United States v. Sonntag, 684 F.2d 781, 786-87 (11th Cir. 1982); United States v. Johnson, 605 F.2d 1025, 1026-27, 1029 (7th Cir. 1979), cert. denied, 444 U.S. 1033, 100 S. Ct. 706, 62 L. Ed. 2d 670 (1980).
Commonwealth v. Kaipat, 2 N.M.I. 322, 327-28 (1991).
6 CMC § 2141(b)(1).
Transcript of Proceedings, supra note 7, at 748-50 (emphasis added).
Id. at 752.
Id.
Id.
The fact that the trial court sentenced Cabrera to eight years imprisonment indicates that the court not only considered incarceration to be a proper sentence, but that such a sentence should be more than the minimum five-year period.