United States v. 2020-05-13 | 18-50417 | USA V. GILBERT CARRASCO | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GILBERT CARRASCO,

Defendant-Appellant.

No. 18-50417

D.C. No.
3:17-cr-03938-JLS-1

MEMORANDUM
*

Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding

Submitted May 8, 2020
**

Pasadena, California

Before: MURGUIA and CHRISTEN, Circuit Judges, and STEIN,
***
District
Judge.

Following a jury trial, Gilbert Carrasco was convicted of one count of
possession with intent to distribute over 500 grams of methamphetamine in

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

***
The Honorable Sidney H. Stein, United States District Judge for the
Southern District of New York, sitting by designation.
FILED

MAY 13 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
violation of 21 U.S.C. § 841(a)(1). On appeal, he challenges the constitutionality of
the permanent Border Patrol checkpoint, the sufficiency of evidence supporting his
conviction, and the admission of statements he made in secondary inspection. We
affirm.
1. The district court did not err in upholding the constitutionality of the
Highway 111 Border Patrol checkpoint. Ordinarily, “a search or seizure is
unreasonable unless it rests on individualized suspicion of wrongdoing.” United
States v. Soto-Zuniga, 837 F.3d 992, 998–99 (9th Cir. 2016). However,
individualized suspicion is not necessary “where a program is designed to serve
‘special needs, beyond the normal need for law enforcement.’” United States v.
Fraire, 575 F.3d 929, 931–32 (9th Cir. 2009) (quoting City of Indianapolis v.
Edmond, 531 U.S. 32, 37 (2000)). A permanent checkpoint created for the primary
purpose of immigration control serves a special need. See Soto-Zuniga, 837 F.3d at
999 (citing United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976)). A district
court’s determination of the primary purpose of a checkpoint is reviewed for clear
error. See United States v. Faulkner, 450 F.3d 466, 470 (9th Cir. 2006).
Here, the district court reviewed extensive testimony and agency documents
1

1
Carrasco filed an unopposed motion to take judicial notice (Dkt. 19) of transcripts
of testimony and the district court’s ruling in a case addressing a nearby permanent
Border Patrol checkpoint, a printout of a page from the U.S. Customs and Border
Patrol website, and the oral testimony of Border Patrol Chief Mark Morgan. Each

3
that consistently emphasized that the primary purpose of the Highway 111 Border
Patrol checkpoint was “to restrict the routes of egress from the border area and
thereby create deterrence to the initial illegal entry.” Although the agency may
have had other goals in addition to its central mission of interdicting
undocumented immigrants, we cannot conclude that the district court clearly erred
in determining that the primary purpose of the Highway 111 checkpoint was to
intercept undocumented immigrants, rather than to advance a general interest in
crime control.
2. There was sufficient evidence to convict Carrasco. In considering a
challenge to the sufficiency of the evidence, we “construe the evidence ‘in the light
most favorable to the prosecution,’ and only then determine whether ‘any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010)
(en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Although we
review de novo, “our evaluation remains deferential and accords respect to the
jury’s role ‘as weigher of the evidence.’” United States v. Moe, 781 F.3d 1120,
1124 (9th Cir. 2015) (quoting Jackson, 443 U.S. at 319).
Viewing the evidence in the light most favorable to the prosecution, a

is a proper subject of judicial notice. See Fed. R. Evid. 201(b). We grant the
motion.

4
rational juror was entitled to find beyond a reasonable doubt that the packages
contained methamphetamine and that the methamphetamine weighed more than
500 grams. Agents removed the substance taped to Carrasco’s legs and found that
it tested positive for methamphetamine. Before trial, a Drug Enforcement Agency
(DEA) chemist again tested and weighed the substance and determined it contained
843 grams of methamphetamine. Although Carrasco argues that the packages
seized at the checkpoint were not the same as those analyzed in the DEA lab, “[o]n
the record as a whole . . . , there was sufficient other evidence to fill any gap in the
chain of custody[.]” United States v. Solorio, 669 F.3d 943, 956 (9th Cir. 2012).
3. Carrasco’s detention in secondary inspection did not violate the
Fourth Amendment. “At fixed Border Patrol checkpoints within the nation’s
interior, the government can send a motorist for a brief secondary inspection upon
‘a minimal showing of suspicion’ . . . .” United States v. Thomas, 726 F.3d 1086,
1095 (9th Cir. 2013) (quoting United States v. Taylor, 934 F.2d 218, 220–21 (9th
Cir. 1991)). This low threshold was undoubtedly met here. The primary inspection
agent described Carrasco’s responses as “very brief . . . like he didn’t want to talk”
and his overall demeanor as “unusual.” Furthermore, a drug-detection dog twice
alerted to the scent of contraband. Accordingly, Carrasco’s referral and subsequent
detention in secondary inspection was not unlawful.
4. We need not determine whether the statements Carrasco made in

5
secondary inspection were admitted in violation of Miranda, because “[e]ven
without the statements . . . , the evidence of guilt was overwhelming.” United
States v. Butler, 249 F.3d 1094, 1101 (9th Cir. 2001). A Border Patrol agent
testified that after Carrasco was arrested and given his Miranda warnings,
Carrasco admitted that he was hired to transport drugs. And, as already noted, the
packages removed from Carrasco’s legs were twice tested and determined to
contain methamphetamine. Accordingly, based on the compelling other evidence
of guilt, any error was “harmless beyond a reasonable doubt.” United States v.
Polanco, 93 F.3d 555, 562–63 (9th Cir. 1996).
AFFIRMED.