F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 6 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-4154
v.
(D.C. No. 98-CR-190-01)
(District of Utah)
ANDRES GALINDO-DAVALOS,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before EBEL, PORFILIO, and MAGILL,** Circuit Judges.
Appellant Andres Galindo-Davalos was convicted of distribution of cocaine in
violation of 21 U.S.C. § 841(a)(1). He moved for a new trial, arguing his confession,
obtained involuntarily through the implicit threat of torture, should not have been
admitted at trial. The trial court denied his motion, and he brings this appeal.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
The Honorable Frank J. Magill, Senior Circuit Judge for the United States Court
**
of Appeals for the Eighth Circuit, sitting by designation.
On April 29, 1998, Mr. Galindo-Davalos was arrested pursuant to a warrant after
an F.B.I. drug investigation in Salt Lake City, Utah, revealed his involvement in the
distribution of cocaine. Upon his arrest, Mr. Galindo-Davalos was interrogated, in
Spanish, by Agent Ronald Ward. Mr. Galindo-Davalos signed both a written waiver of
his Miranda rights and a confession.
Mr. Galindo-Davalos now contends his confession was obtained through the
implied threat of torture. Specifically, he claims Agent Domenic Perriello, who was
present during the interrogation, left the interrogation room and returned with a can of
soda pop. According to the defense, Mexican police commonly obtain confessions
through tehuacanazo, a form of torture which involves pouring a carbonated beverage
into a suspect’s sinuses. The defense contends Mr. Galindo-Davalos, who is a young
Mexican national with no prior experience with U.S. law enforcement, saw the soda can
and, believing torture to be imminent, confessed.
Mr. Galindo-Davalos raised the issue of voluntariness for the first time at trial, and
prior to admitting the confession, the trial court held a hearing pursuant to 18 U.S.C. §
3501. There Agent Ward testified Mr. Galindo-Davalos signed a waiver of his
Miranda rights after having them explained to him orally and after reading the written
form himself out loud. Agent Ward characterized Mr. Galindo-Davalos as cooperative
throughout the interview, never displaying any reluctance to continue answering
questions. He also testified the can of soda was brought into the interrogation room for
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Mr. Galindo-Davalos after he indicated he was thirsty. Mr. Galindo-Davalos himself did
not testify at the voluntariness hearing. After hearing this testimony, the district court
found the confession to be voluntary: “[t]he facts are unrebutted that the defendant was
advised of his rights, the right to counsel, the right to remain silent and he voluntarily
chose to speak. So the statement is found to be voluntary by the Court.”
The voluntariness of a confession is ultimately a question of law which we review
de novo, but we defer to the district court’s underlying findings of fact unless they are
clearly erroneous. United States v. Wiseman, 172 F.3d 1196, 1206 (10th Cir. 1999). In
this case, there is simply no evidence in the record to indicate the district court’s findings
of fact are clearly erroneous. Agent Ward’s testimony at trial describes a voluntary
confession: Mr. Galindo-Davalos was informed of his right not to speak to the F.B.I.
agents, he indicated both orally and in writing that he understood that right, and he then
confessed in a cooperative manner. This depiction of events, of course, comes from the
testimony of the interrogating F.B.I. agent, but his testimony was uncontroverted, and his
credibility is not easily questioned at this stage of the proceedings. See Anderson v. City
of Bessemer City, 470 U.S. 564, 575-76 (1985) (affording great deference to credibility
determinations).
We also believe Mr. Galindo-Davalos’ testimony in his pre-trial suppression
hearing casts doubt on the veracity of his claim that he confessed under what he perceived
to be the imminent threat of torture. Mr. Galindo-Davalos initially moved to suppress his
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confession not on grounds it was given involuntarily, but on the basis that he had
requested and been denied counsel. In his testimony at that hearing, Mr. Galindo-Davalos
described his arrest and interrogation, going so far as to indicate Agent Ward spoke in “a
very aggressive tone” and “kept insisting with his face close to mine.” However, he never
mentioned the can of soda, despite his counsel’s representation to this court that its
impact on his client was equivalent to bringing a “red hot poker” into the interrogation
room. Nor does he mention any fear that he would be tortured if he did not confess.
Seeing no clear error in the district court’s findings of fact, we have no difficulty
concluding as a matter of law that Mr. Galindo-Davalos’ confession was voluntary. The
judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
John C. Porfilio
Senior Circuit Judge
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