The appellants are five of a group of seven individuals arrested near the border between the United States and Mexico outside Valentine, Texas. All five appellants were convicted of knowingly possessing, with intent to distribute, 100 kilograms or more, but less than 1,000 kilograms of marijuana and aiding and abetting each other. Sigifredo Guanes-pen-Portillo, Gabriel Quinones-Muela, Alejandro Hernandez-Vazquez, and Arturo Quinones-Muela appeal the sufficiency of the evidence against them. We find the evidence sufficient. The primary issue that draws our focus in this appeal, however, is raised by Elier Quinones-Muela. He contends that his waiver of Miranda rights raised a question of vol-untariness. Although he failed properly to object, he contends that 18 U.S.C. § 3501(a) required the district court, sua sponte, to hold a voluntariness hearing on his confession and sua sponte, to give an appropriate instruction to the jury.
*395 We examine § 3501(a) and the related precedents and find no reversible error.
We AFFIRM all convictions in this appeal.
I.
At trial, the government presented testimony that at about 10:00 p.m. on December 20, 2005, a walking sensor near Valentine, Texas was activated. When Border Patrol agents went to the area, they saw tracks, indicating that people were in the area. The agents positioned themselves to intercept the individuals, and an infrared night vision scope (“Loris”) was set up on a hill nearby. Agent Joe Lewis operated the Loris. Images caused by body heat are visible on the Loris scope, but not faces or other identifying characteristics.
Around 2:00 a.m., Agent Lewis told other agents that he saw seven people bearing heavy loads on their backs, walking through the desert. When the seven arrived at the highway, they stopped and waited. Shortly, a vehicle pulled off the highway near the seven, who jumped up and loaded their backpacks into the vehicle. The vehicle drove away, and the seven persons returned toward the desert. Agent Lewis testified that he kept his eyes on the seven as they crossed the highway and the railroad tracks and lay down in the pasture. He guided other agents to that location, and those agents arrested the seven persons.
When the group was arrested, they were told by the agents to pick up their belongings, but no one picked anything up. They carried nothing but a jug of water and a roll of plastic bags. Agent Russell Church testified that people entering the country to look for work bring personal belongings with them, while drug traffickers have nothing with them but a small amount of food. None of the appellants attempted to flee nor to avoid arrest. None of them had strap marks on their bodies from backpacking, but all of them were wearing thick jackets.
The vehicle was stopped and agents found that it contained seven army-style duffel bags, each containing 57 pounds of marijuana. The vehicle was driven by Elizabeth Gomez.
Jose Rangel-Rosales, one of the seven persons arrested, pleaded guilty and testified at trial for the government. He identified the five appellants as members of a group of seven who crossed from Mexico to the United States, each carrying a backpack of marijuana, but he did not know their names. He testified that they put the bags into a pickup with a closed cabin, and that they had been led by a guide, who left them 100-200 meters from where they loaded the vehicle. He said that he was to be paid $2,000.
Officer Raymond Rodriguez testified that each of the five appellants made statements to him following their arrest, and that each of them admitted that they carried backpacks to the road and either were present or helped to load the narcotics into the vehicle. He also testified that Hernandez-Vasquez stated that he carried marijuana and was to be paid $2,000. According to Officer Rodriguez, Gabriel and Elier Quinones-Muela, who are brothers, admitted that Gomez, the driver of the vehicle, is their cousin. Officer Rodriguez testified that he knew Spanish and spoke it his whole life, although he admitted that he had no special expertise in translation. He also admitted that he did not tape record the statements.
All of the appellants testified, through a translator, that they had entered the United States to find work, and they denied telling Officer Rodriguez that they carried marijuana or loaded it into a vehicle. They testified that there were eight people *396 traveling together, including a guide. They said that they carried backpacks containing food and water, but that the guide told them to discard the backpacks before they got to the highway because they wouldn’t need them any longer. The appellants testified that the guide took them to the highway, told them to cross the highway and the railroad tracks, and wait for him to return with a vehicle to pick them up. Hernandez-Vasquez testified that Officer Rodriguez never asked if he had carried marijuana, but instead only asked if he had a backpack. He said he carried a backpack containing food, water, and supplies, and that he thought he was being arrested for illegal entry. The Qui-nones-Muela brothers testified that they came to the United States to look for work in Oklahoma, where they have relatives. Arturo and Elier denied telling Officer Rodriguez that Elizabeth Gomez, the driver of the vehicle into which the marijuana was loaded, was their cousin. Gabriel and Elier testified that they did not understand the Miranda warnings and could not understand Rodriguez’s Spanish. Elier also testified that, when he signed a Miranda waiver, he was “very tired ... cold and hungry” and did not pay attention.
The appellants were convicted of possession with intent to distribute marijuana and aiding and abetting possession with intent to distribute. Each appellant was sentenced to 60 months of imprisonment.
II.
Guanespen-Portillo, Gabriel Quinones-Muela, Hernandez-Vasquez, and Arturo Quinones-Muela contend on appeal that the evidence was insufficient to support their convictions.
Elier Quinones-Muela contends that the district court erred by not holding a hearing to determine the voluntariness of his waiver of Miranda rights and his confession and by not instructing the jury regarding the voluntariness of his waiver and confession.
III.
Guanespen-Portillo, Gabriel Quinones-Muela, Hernandez-Vasquez, and Arturo Quinones-Muela preserved their challenge to the sufficiency of the evidence by moving for judgments of acquittal. Therefore, the standard of review that we apply is whether a rational jury could have found that the evidence established the essential elements of the crime beyond a reasonable doubt.
United States v. Mitchell,
To prove possession of marijuana with intent to distribute, the government must prove beyond a reasonable doubt: “(1) knowing (2) possession of marijuana (3) with intent to distribute it.”
United States v. Ricardo,
To prove aiding and abetting of a criminal venture, the government must prove beyond a reasonable doubt that the defendants “(1) associated with the criminal enterprise; (2) participated in the venture; and (3) sought by [their] action to make the venture succeed.”
United States v. Valdez,
The appellants argue that the government failed to prove beyond a reasonable doubt that they were in possession of marijuana. They assert that the evidence does not exclude the possibility that there was another group in the area at the same time of their arrest, because the area is frequently traveled by undocumented workers as well as drug traffickers. They argue that they had entered the United States to seek work and that the individuals that Agent Taylor observed and who loaded marijuana into the vehicle must have been another group. They also contend that the government did not prove its case sufficiently because it did not present evidence of a canine alert to the odor of marijuana on the defendants, fingerprint evidence, matching fibers, strap marks from carrying heavy backpacks or a recording of the defendants’ statements to Officer Rodriguez.
Considering the evidence in the light most favorable to the verdict, we hold that a rational jury could have found that the appellants knowingly possessed marijuana and aided and abetted each other’s possession. Agent Taylor’s testimony indicates that he observed seven individuals load backpacks into a vehicle and run to the area where the appellants were later arrested. The appellants’ co-defendant Rangel testified that he and the appellants were members of a group of seven who each carried a backpack of marijuana and loaded it into a vehicle. In addition, Officer Rodriguez testified that appellants each confessed to possessing a backpack full of marijuana. The four appellants challenging the sufficiency of the evidence do not challenge the introduction of their confessions, although they continue to deny that they confessed.
Although the appellants testified that they did not possess marijuana, criticized the lack of direct physical evidence, and offered an alternative theory to explain their arrest, the jury chose to believe the testimony of the government’s witnesses and reasonably concluded that appellants had, beyond a reasonable doubt, loaded backpacks of marijuana into the vehicle. We therefore hold that the district court did not err in denying the appellants’ motions to acquit and that the evidence was sufficient to support their convictions.
IV.
We now turn to the appeal of the fifth appellant, Elier Quinones-Muela (“Elier”). He contends that his conviction should be reversed because the district court erred by failing, sua sponte, to hold a hearing on the voluntariness of his Miranda waiver and confession, despite his failure to request one, and by failing, sua sponte, to instruct the jury on the voluntariness of his waiver and confession. We hold that the district court did not commit error, plain or otherwise in failing to hold a vol-untariness hearing nor in failing to give a specific instruction regarding the volun-tariness of Elier’s confession.
A.
Elier did not move before trial to suppress his confession; nor did he object to the introduction of his confession during trial; nor did he request at trial a hearing *398 to determine the voluntariness of his Miranda waiver or confession. He contends, nevertheless, that the trial court had a duty to hold a hearing sua sponte, because the evidence clearly reflected a question of voluntariness.
1.
It has long been settled that a defendant has the right to challenge the admission of a confession on the grounds that it was obtained involuntarily. In
Jackson v. Denno,
the Supreme Court recognized that “[a] defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually and reliably determined.”
Two years after the Court’s decision in Miranda, Congress enacted 18 U.S.C. § 3501. Section 3501(a) provides:
In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances. 1
Section 3501(b) lists five factors that the trial judge shall take into account in determining the issue of voluntariness of a confession. 2
The constitutional right recognized in
Jackson v. Denno
is the “constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness.”
Jackson,
We have, nevertheless, held that certain circumstances create a duty on the part of the trial court to hold a hearing on the voluntariness of a confession
sua sponte. United States v. Iwegbu,
Renteria
is the first Fifth Circuit case to hold that the trial court must raise the issue of voluntariness on its own motion.
Somewhat in tension with
Renteria,
the court later held in
United States v. Espinoza-Seanez
that the district court is not required to hold a
Jackson v. Denno
hearing when the issue of voluntariness is not properly before it and no objection is made to the introduction of a confession putting the trial court on notice that a hearing is being requested.
In
Iwegbu,
the court again addressed the question of whether the trial court must hold a hearing on the voluntariness of a confession even if the defendant does not move for such a hearing or object at trial.
The
Iwegbu
court addressed the earlier precedent in
Espinoza-Seanez,
requiring a defendant to object to the introduction of his confession and request a hearing on its voluntariness.
Espinoza-Seanez,
2.
The government, however, contends that, since our decision in
Iwegbu,
the Supreme Court in
Dickerson v. United States,
In
Dickerson,
the Court reviewed a decision of the Fourth Circuit holding that the warnings required by
Miranda
were not based on constitutional principles and consequently Congress could statutorily override
Miranda.
The Fourth Circuit had held that, even though the defendant had not received
Miranda
warnings, his confession was admissible because it was voluntary under the totality of the circumstances test required by § 3501(a).
Id.
at 432,
Beyond this concession, however, the Supreme Court disagreed with the Fourth Circuit. The Court held that
Miranda
announced a constitutional rule requiring the exclusion of unwarned statements made during custodial interrogation.
Id.
at 432,
It is arguable, therefore, that the Dickerson Court abrogated any requirement under § 3501(a) that the trial court hold a hearing on the voluntariness of a confession absent a proper motion by the defendant. The purpose of § 3501(a) was to replace the Miranda rule with a totality-of-the-circumstances voluntariness test. *401 Because the statute requires a hearing as part of a scheme of determining the admissibility of confessions at trial, the Supreme Court’s decision invalidating the statute’s definition for admissibility arguably abrogated the statute’s requirement that the trial court hold a hearing as well.
On the other hand, the Court did not suggest that it was overruling
Jackson v. Denno,
and indeed noted that the
Miranda
requirement “does not, of course, dispense with the voluntariness inquiry.”
Id.
It noted, however, that
“
‘[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was “compelled” despite the fact that the law enforcement authorities adhered to the dictates of
Miranda
are rare.’ ”
Id.
(quoting
Berkemer v. McCarty,
We need not decide today the extent to which
Dickerson
abrogated § 3501(a).
3
The holding of
Renteria
requires the trial court to hold a hearing on the voluntariness of a confession
sua sponte
when the evidence clearly reflects an issue of volun-tariness; and
Renteria's,
requirement is not grounded in the text of § 3501(a).
Our holding in
Renteria
is based on the persuasive authority of
Powe,
as well as our precedent in
Gonzalez,
which does not directly address whether a hearing may be required without a motion by the defendant.
Renteria,
In sum, when the evidence clearly reflects a question of the voluntariness of a confession, the trial court must raise the issue on its own motion. This rule is consistent with rules stated in other circuits.
See N. Mar. I. v. Mendiola,
3.
We now turn to the immediate case before us.
When, on appeal, a defendant asserts error by the district court for failing to hold a voluntariness hearing in the absence of a motion or objection, our review is for plain error.
Renteria,
We start with the premise that plain error review first requires a finding (or at least an assumption) that an error has occurred. The trial court only commits error by admitting a confession without holding a voluntariness hearing on its own motion if “the evidence clearly reflects a question of voluntariness.”
Renteria,
Elier does not contend that his purported confession was actually coerced, but instead that the evidence adduced at trial clearly reflected a question of the voluntariness of his waiver of his
Miranda
rights. A waiver of
Miranda
rights must be voluntarily made, and a hearing may be required to determine its voluntariness.
See Turner v. United States,
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.
Moran v. Burbine,
Amendment, on which
Miranda
was based, is governmental coercion.”
Colorado v. Connelly, 479
U.S. 157, 170,
In this case, the Officer Rodriguez testified that Elier read the Miranda rights out loud, that Elier stated that he understood the warning, and that he waived his rights. Officer Rodriguez testified that Elier stated he was carrying a backpack containing marijuana to the road where he then loaded his backpack into the vehicle. With this foundation, the government introduced into evidence a Miranda warning form, written in Spanish and signed by Elier. Elier’s trial counsel objected to the admission of the waiver form on the grounds that the Government had not shown that Elier “knowingly and voluntarily waived his rights.”
Elier testified that it was very cold the night that he was arrested and that he had not been given any food or rest between the time of his arrest and his questioning later that night. Elier testified that the officer who questioned him did not speak Spanish very well, and that he did not understand some of the words the officer used. Elier was asked whether the officer gave him “a piece of paper about [his] rights.” Elier testified that the officer did show him a piece of paper. When asked what he thought he was signing on the paper, Elier testified: “I didn’t pay attention. Really, I was very tired, I was cold and hungry.” Elier testified that when the officer asked whether he had been carrying marijuana, he told him (contrary to Officer Rodriguez’s testimony) that he did not have marijuana.
*404
Although Elier testified that he did not pay attention to the waiver form he signed, he did not controvert Officer Rodriguez’s testimony that he, Elier, had read the waiver aloud in Spanish and had stated that he understood it and was willing to waive his rights. Although he testified that he could not understand some of Officer Rodriguez’s Spanish, Elier does not contend that the waiver form itself was misleading, nor does he deny that he read it aloud and understood it.
Cf. Martinez v. Estelle,
At most, Elier’s testimony raised questions about whether he paid attention to the written
Miranda
waiver at the time he signed it and whether he understood some of the words Officer Rodriguez used. In contrast with the clear evidence of coercive misconduct presented in
Renteria,
which “pointedly raised the issue of voluntariness,” Elier’s testimony does not suggest that his waiver was involuntary, especially given the uncontroverted testimony that he read the waiver form aloud and stated that he understood it.
Furthermore, although Elier’s trial counsel objected to the admission of the form Elier signed waving his
Miranda
rights, his objection did not put the court on notice that a hearing was required to determine the voluntariness of the confession.
See Berry,
Finally, Elier’s denial that he confessed at all further obscured any potential issue of voluntariness. It is not impossible for a defendant to claim both that he did not confess and that any confession he may be found to have made was involuntary.
See United States v. Barry,
*405 In sum, the evidence as a whole did not clearly raise a question before the judge of the voluntariness of Elier’s waiver or confession, and thus the trial court did not commit error by failing to hold a hearing sua sponte. Because we hold that the trial court did not commit error, we need not address the other prongs of this plain error inquiry.
B.
Elier also contends that § 3501(a) requires the district court to instruct the jury that they were “permitted to disregard his statements if he did not knowingly and voluntarily waive his Miranda rights.” He concedes that, because he did not request such an instruction or object to the instructions given, our review is for plain error.
Assuming its validity after
Dickerson,
§ 3501(a) provides that the “trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.” As we have held above, the evidence does not clearly raise an issue of voluntariness. The district court therefore had no obligation to instruct the jury regarding the confession
sua sponte. See Iwegbu,
Moreover, assuming the district court had erred in failing to give a specific instruction regarding the confession as provided in § 3501(a), any such error would not constitute plain error because Elier has not shown that his substantial rights were prejudiced by the mere lack of this instruction. The district court gave the jury a standard instruction on the credibility of witnesses, instructing them to make judgments about the testimony of the witnesses, including the defendant. The court instructed the jury to decide “how important the testimony was.” Although this instruction did not use the wording of § 3501(a), it did limit any prejudice arising from the lack of such an instruction.
See Iwegbu,
V.
For the foregoing reasons, the convictions of Sigifredo Guanespen-Portillo, Gabriel Quinones-Muela, Alejandro Hernandez-Vazquez, Arturo Quinones-Muela, and Elier Quinones-Muela are in all respects
AFFIRMED.
Notes
. As discussed below, the Supreme Court has held that § 3501(a) is unconstitutional to the extent that it conflicts with the rule announced in
Miranda. Dickerson v. United States,
. Subsection (e) provides: “As used in this section, the term 'confession' means any confession of guilt of any criminal offense or self-incriminating statement made or given orally or in writing.”
. Other circuits have not squarely addressed the question of whether the hearing requirement of § 3501(a) was abrogated by the Supreme Court's decision in
Dickerson,
but they have continued to apply other portions of the statute. For example, the Second Circuit has applied the jury instruction requirement of § 3501(a) after
Dickerson. United States v. Yousef,
The Third Circuit has, in an unpublished decision, interpreted
Dickerson
to invalidate all of § 3501(a), including the jury instruction requirement.
United States v. Joseph,
. Some circuits have held that there is no duty to hold a hearing on the voluntariness of a confession absent an objection by the defendant.
See United States v. Wilson,