Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Nov. 14, 1988.
D.Ariz.
AFFIRMED.
Appeal from the United States District Court for the District of Arizona; Richard M. Bilby, District Judge, Presiding.
Before GOODWIN, Chief Judge, and SNEED and HUG, Circuit Judges
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.
Bedolla appeals her convictions for distribution of cocaine and conspiracy to do the same. She contends that the district court erred in denying her motion to suppress inculpatory statements made in what she claims was the absence of a knowing and voluntary waiver of her Miranda rights and after she had indicated she wished to remain silent and requested an attorney. We conclude that this argument is unpersuasive. Bedolla was informed of her rights upon arriving at the DEA office. Indicating she understood them, she stated that she did not wish to discuss the matter. There was no further interrogation by the agents, only routine questions concerning her personal history. She then voluntarily offered to talk to the agents, in order to "help herself." She was then readvised twice of her Miranda rights before the agents commenced interrogation. She was not coerced in waiving her right to remain silent. See Michigan v. Mosley, 423 U.S. 96 (1975); United States v. Hsu, 852 F.2d 407 (9th Cir.1988). Although she requested an attorney, there was no violation of her rights under Edwards v. Arizona, 451 U.S. 477 (1981), because she initiated the discussion that led to the interrogation.
Bedolla also contends that the admission of agent Wallace's testimony concerning the statements made to him by Trujillo was error. Trujillo later testified at trial and was subject to cross-examination. The Government, relying on United States v. Echeverry, 759 F.2d 1451, 1456-57 (9th Cir.1985), contends that the challenged statements were not hearsay because they were not offered for their truth, but rather as necessary background information to explain how the undercover operation developed. We need not determine this issue because we conclude that even assuming the admission of the testimony was error, it was harmless. See United States v. Hollingshead, 672 F.2d 751, 755 (9th Cir.1982). The error, if any, was not of constitutional dimension because Trujillo took the stand and any potential confrontational problems were cured. Thus our test is whether the error, if any, was more probably than not harmless. In light of the extensive other evidence and the later testimony and cross-examination of Trujillo, we conclude that the testimony of agent Wallace had minimal impact on the outcome and, even presuming it was error to admit it prior to Trujillo's testimony, such error was harmless.
AFFIRMED.