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846 F2d 1383 United States v. Sandoval

846 F.2d 1383

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Carlos Licea SANDOVAL, Defendant-Appellant.

No. 87-5288.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 1988.
Decided May 13, 1988.

Before TANG, FLETCHER and PREGERSON, Circuit Judges.

1

MEMORANDUM*

2

Carlos Sandoval appeals his conviction on four counts of conspiracy involving importation and possession with intent to distribute a controlled substance, in violation of 21 U.S.C. Secs. 841(a)(1), 846, 952, 960 and 963. Sandoval contends that certain incriminating statements should have been suppressed for Miranda violations. We affirm.

FACTS

3

On April 30, 1987, co-defendant Samuel Prater entered the United States through the Port of Entry at Calexico, California, where customs agents discovered 87.5 pounds of marijuana in the van he was driving. The van was registered to Sandoval. After Prater told his interrogators that Sandoval was waiting for him at a Burger King in Calexico, four government agents went there and arrested Sandoval in the parking lot.

4

Agent Jackson advised Sandoval of his Miranda rights in the parking lot and asked Sandoval whether he understood those rights, to which Sandoval responded affirmatively. Jackson then asked Sandoval if he was willing to talk to him, and Sandoval said, "Yes, I didn't do anything wrong." Jackson told Sandoval that he would be taken to an interview room at the port of entry because Jackson did not want to interview Sandoval in the parking lot. Ten to fifteen minutes later, Jackson met Sandoval in the interview room and asked Sandoval if he needed his Miranda rights repeated, to which Sandoval said "No." Jackson asked whether Sandoval was still willing to answer questions, and Sandoval again said "Yes, I didn't do anything wrong." In the ensuing interview, Sandoval made incriminating and inconsistent statements.

5

The district court denied Sandoval's suppression motion, and Sandoval appeals after entering a conditional plea of guilty, pursuant to Fed.R.Crim.P. 11(a)(2).

DISCUSSION

6

"The manner in which a statement was extracted" goes to "the purely legal question of voluntariness." Crane v. Kentucky, 476 U.S. 683, 688 (1986). Thus, the bearing on voluntariness of the delay between the warning and the statement is reviewed de novo. See United States v. Wolf, 813 F.2d 970, 974 (9th Cir.1987). The district court's determination that a defendant waived his Miranda rights will not be overturned unless clearly erroneous. United States v. Bernard S., 795 F.2d 749, 751 (9th Cir.1986).

I. Contemporaneous Miranda Warning

7

Relying on United States v. Hopkins, 433 F.2d 1041, 1045 (5th Cir.1970), defendant argues that "lapse of time and change of location between the two events required new warnings." Appellant's Brief at 6. In Hopkins, the defendant was Mirandized and interrogated by an FBI agent in a third-floor room at the Dallas jail. Hopkins was then taken upstairs to his cell by a Dallas police detective, Hobbs, who questioned Hopkins on the way. On appeal, Hopkins argued that the FBI's Miranda advisement did not "sanitize" the interrogation by Hobbs, because Hopkins "reasonably assumed that his [Miranda ] privilege with respect to state interrogations was not co-extensive with that against federal questioning." 433 F.2d at 1045. While recognizing "some merit" to the position that "Miranda warnings, once given, are not to be accorded unlimited efficacy or perpetuity," the court nevertheless upheld the admission of the statements:

8

First, there was no significant time lapse between the federal interrogation and Detective Hobbs' question. Second, the question posed by Detective Hobbs touched upon the same subject matter discussed with Agent Hanley. Third, there is no evidence that the Dallas police, either prior to or following the federal interrogation, acted so as to dilute the efficacy of the warning given by Agent Hanley. This record pictures an uninterrupted sequence of events beginning with the Miranda warnings given by Agent Hanley, including the presence of Hobbs at the third floor interrogation room to take Hopkins to his cell, and culminating with a question on the same matter posed by Hobbs as he and Hopkins returned to the fifth floor. We find that the question of Detective Hobbs was so intertwined with the interrogation by Agent Hanley that Hopkins must have been aware of his constitutional rights with regard to Hobbs' query and, by his answer, Hopkins knowingly waived those rights.

9

Id.

10

Hopkins does not support Sandoval's claim here that he should have been re-Mirandized. He was questioned by the same officer who Mirandized him immediately following arrest. Although ten to fifteen minutes elapsed, during which time Sandoval was taken to the interview room by other agents, Agent Jackson established continuity by asking Sandoval whether he needed to have his rights repeated and was still willing to talk. Less need for a separate warning appears to exist here than in Hopkins.

11

Similarly, in United States v. Nordling, 804 F.2d 1466 (9th Cir.1986), this court held that interrogating narcotics agents did not have to readminister a Miranda warning to defendant Nordling after Harbor Police, who had arrested him on a completely unrelated charge, had "warned" him. In Nordling, the defendant was not moved to a different location and "no appreciable time had elapsed between the end of the Harbor Police interrogation and the beginning of the [narcotics] investigation." 804 F.2d at 1471. (The court did not specify the amount of time, which elsewhere was referred to as "shortly." Id. at 1468.) Nevertheless, the argument for readministering the warning seems stronger in Nordling than here, because different police agencies and different crimes were involved.

12

Compared to the circumstances in Nordling and Hopkins, the ten to fifteen minute time lapse and the location change here would not appear to require a new warning.

II. Waiver

13

Sandoval argues that he did not waive his right to remain silent, because his agreement to answer was, at best, equivocal. On both occasions, when asked if he would answer questions, Sandoval replied "Yes, I didn't do anything wrong."

14

The right to remain silent must be "scrupulously honored." Grooms v. Keeney, 826 F.2d 883, 885 (9th Cir.1987). Once a person indicates in any manner a desire to remain silent, the interrogation must cease. United States v. Lopez-Diaz, 630 F.2d 661, 664 (9th Cir.1980) (citing Miranda v. Arizona, 384 U.S. 436, 467-68 (1966)). The presumption is against finding waivers of Miranda rights, and the burden of showing a waiver is on the government. United States v. Bernard S., 795 F.2d at 752. Waiver of the right to remain silent may be inferred from the defendant's words and actions, Lopez-Diaz, 630 F.2d at 665, though a valid waiver will not be presumed simply because the suspect eventually made incriminating statements. United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir.1985).

15

In Lopez-Diaz, the defendant stated that he would not answer questions about drugs in his van, but would talk about other drug activity and dealers. After Lopez-Diaz broadened the conversation to include certain aspects of his own criminal activity, the police officer asked Lopez-Diaz about drugs in the van. The court held that Lopez-Diaz's incriminating answers to that question should be suppressed because he had invoked the right to remain silent on that subject, and had not subsequently waived that right merely by talking about other drug activity or even other criminal activity of his own. Id. at 664.

16

By comparison to Lopez-Diaz, Sandoval's answer ("Yes, I didn't do anything wrong") does not signify a wish to remain silent or even to refrain from talking about certain subjects. It is not an "equivocal" statement of a wish to remain silent, such as "I may not want to talk." Cf. United States v. Fouche, 776 F.2d at 1405 (defendant's statement that he "might want to talk to a lawyer" is equivocal request for counsel justifying police questions to clarify desire for counsel).

17

At most, Sandoval's answer indicates a willingness to talk as long as the talking is limited to exculpatory falsehoods, and, by implication, an unwillingness to talk about anything incriminating. Lopez-Diaz cannot be read to accord such rights to a suspect.

CONCLUSION

18

We find that Sandoval's statements were voluntary. The district court did not clearly err in finding that Sandoval waived his Miranda rights.

19

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3