United States of America v. Donald Barton Deshotels

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Suzanne B. Conlon, United States District Judge for***
the Northern District of Illinois, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD BARTON DESHOTELS,
Defendant - Appellant.
No. 08-50534
D.C. No. 07-CR-01430-JAH-1
MEMORANDUM *
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted December 10, 2009**
Pasadena, California
Before: HALL and SILVERMAN, Circuit Judges, and CONLON, District***
Judge.
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Donald Barton Deshotels appeals his convictions for transportation of illegal
aliens and aiding and abetting (8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II)); bringing
in illegal aliens for financial gain and aiding and abetting (8 U.S.C. §
1324(a)(2)(B)(ii) and 18 U.S.C. § 2); and conspiracy to bring in and transport
illegal aliens (8 U.S.C. § 1324(a)(1)(A)(i), (ii), and (v)(I)). We have jurisdiction
pursuant to 28 U.S.C. § 1291, and affirm.
State Route 94 border patrol agents discovered three illegal aliens in the
trunk of Kenneth Grant’s car after he attempted to pass through the checkpoint.
Minutes later, agents saw Deshotels walking down State Route 94. They
summoned him to the primary inspection area and asked him where he was coming
from; he responded he was in the bushes and then stated he had been dropped off.
He did not respond to an agent’s question whether he had been in the car still
present in secondary inspection. The material witnesses identified Deshotels in a
photographic showup. Two material witnesses identified him in a six-person
photographic lineup and at trial as the car passenger who met them at a prearranged
location on the United States side of the border and put them in the trunk.
Deshotels contests the admission of his pre-Miranda incriminating
statements and testimony about his silence. Miranda warnings are only required
before custodial interrogation; a defendant’s pre-custodial, pre-Miranda statements

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and silence are admissible. United States v. Bassignani, 575 F.3d 879, 883 (9th
Cir. 2009); United States v. Beckman, 298 F.3d 788, 795 (9th Cir. 2002). The
district court’s determination that Deshotels was not in custody during the
questioning is a mixed question of law and fact warranting de novo review.
Bassignani, 575 F.3d at 883. The totality of the circumstances demonstrates
Deshotels was not in custody. Id. at 883-84. The agents summoned Deshotels to
the primary inspection booth as he attempted to circumvent the checkpoint. He
was questioned in an open area. The questioning was brief, and the agents did not
apply pressure to detain Deshotels or confront him with evidence of guilt. The
district court did not err in denying Deshotels’ motion to suppress his statements or
allowing testimony about his silence.
Deshotels challenges the material witnesses’ identifications of him as
impermissibly suggestive. The constitutionality of pretrial identification
procedures is reviewed de novo. United States v. Johnson, 820 F.2d 1065, 1072
(9th Cir. 1987). Viewing the totality of the circumstances, the showup and lineups
were not impermissibly suggestive, and the record reflects no substantial likelihood
of misidentification. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985).
The lineup depicts six African American males of about the same age. Deshotels’
darker complexion does not render the lineup impermissibly suggestive. United

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States v. Nash, 946 F.2d 679, 681 (9th Cir. 1991) (photo array was not
impermissibly suggestive despite differences in hairstyles, ethnicity, and
complexions). The material witnesses’ identifications of Deshotels were reliable.
Neil v. Biggers, 409 U.S. 188, 199-200 (1972). They had an opportunity to closely
observe Deshotels as he loaded them into the trunk. Their descriptions of
Deshotels were reasonably accurate and independently consistent. The district
court did not err in denying the motion to suppress the identifications.
Deshotels challenges the sufficiency of the evidence to support the three
convictions for aiding and abetting bringing in illegal aliens for financial gain. We
review de novo the district court’s denial of a motion under Fed. R. Crim. P. 29.
United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir. 2008). Viewing the
evidence in the light most favorable to the government, sufficient evidence
supports the convictions. Id. The record demonstrates coordination and agreement
between Deshotels and the smugglers in Mexico prior to the material witnesses’
entry into the United States. United States v. Singh, 532 F.3d 1053, 1056, 1059-60
(9th Cir. 2008); United States v. Lopez, 484 F.3d 1186, 1198-1201 (9th Cir. 2007)
(en banc). The smugglers told the material witnesses where to hide after crossing
the border (near a sign 100 meters from the border fence), for whom to wait (two
African American men), and the prearranged signal (“Juan”). Five minutes after

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reaching the sign, Deshotels and Grant arrived and yelled “Juan.” The district
court did not err in denying Deshotels’ three motions for acquittal.
Deshotels contends the superseding indictment for bringing in aliens for
financial gain violates his speedy trial rights. 18 U.S.C. § 3161(b). The district
court’s application of the speedy trial act is reviewed de novo. United States v.
Lopez-Osuna, 242 F.3d 1191, 1196 (9th Cir. 2000). The bringing in aliens for
financial gain charge was new in the superseding indictment; it was not included in
the original complaint or indictment. Transportation of illegal aliens and bringing
in illegal aliens for financial gain are distinct offenses under § 1324. Lopez, 484
F.3d at 1195-96. The district court did not err in denying Deshotels’ motion to
dismiss the superseding indictment.
AFFIRMED.

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