F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 21 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
No. 03-1307
v. (District of Colorado)
(D.C. No. 03-CR-114-M)
GERARDO ALARCON,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HENRY, BALDOCK, and MURPHY, Circuit Judges.
I. INTRODUCTION
Defendant-appellee Gerardo Alarcon was arrested when a SWAT team
executed a search of a third-party’s apartment. The SWAT team found two
kilograms of cocaine in the apartment. Alarcon was charged with conspiracy to
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The 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.
distribute a controlled substance in violation of 21 U.S.C. § 846, and with
possession with intent to distribute a controlled substance in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B).
Alarcon moved to suppress his confession, arguing that it was obtained in
violation of Miranda v. Arizona, 384 U.S. 436 (1966). The United States District
Court for the District of Colorado granted Alarcon’s motion to suppress,
concluding that Alarcon had not executed a valid waiver of his Miranda rights.
The court based this conclusion on its finding that Alarcon, a native Spanish
speaker, had not understood the Miranda warning or waiver, which were given to
him in English.
The government appeals the suppression of Alarcon’s confession.
Exercising jurisdiction pursuant to 28 U.S.C. §1291 and 18 U.S.C. § 3731, this
court affirms the district court’s suppression of Alarcon’s confession.
II. BACKGROUND
Alarcon was in one Christian Saenz-Sanchez’s apartment when the SWAT
team entered it to execute a search warrant. The SWAT team handcuffed and
arrested Alarcon and took him to the police station.
The parties contest whether or not Alarcon understood the Miranda rights
read to him in English. A Spanish speaking officer testified that he asked
Alarcon, in Spanish, whether he preferred to be interviewed in English or
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Spanish. On cross examination, the officer did not recall whether he also offered
to read Alarcon his Miranda rights in Spanish. The officer testified that Alarcon
preferred to be interviewed in English. The officer did not, however, ask Alarcon
how well he understood English. Alarcon, on the other hand, testified that the
police just spoke to him in English without ever giving him the option of being
given his Miranda warnings or interrogation in Spanish. Alarcon testified that the
police did not start speaking Spanish to him until the latter part of the interview,
when they realized that he could not understand them.
Alarcon answered “yes” to the following question on the Miranda waiver
form: “Do you read, write, and understand English?” After signing the Miranda
waiver, Alarcon confessed to the police, at first by answering in English, and later
in Spanish. At his court appearances, Alarcon answered the magistrate judges in
simple English, primarily “yes” and “no” answers, and declined an interpreter on
at least one occasion. Alarcon explained that he declined the interpreter because
the two defendants who had hearings before him were only asked questions that
could be answered with a yes or a no, and he was “trying to look good in court.”
Alarcon answered “yes, sir” when one magistrate judge asked him if he spoke
English fluently. Alarcon testified, however, that he only understood the court
proceedings after they were interpreted for him.
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Alarcon testified that he understood neither the Miranda warnings he was
given nor the waiver he signed, but that he “kn[e]w that it was laws.” Alarcon
claimed that he can only understand “bits and pieces” of spoken English and must
translate word for word in order to attempt to understand sentences. He testified
that he can only read some English words and that his wife translates English
correspondence for him. Alarcon noted that he often feigns to understand what is
being said to him in English because he is ashamed to admit his lack of English
proficiency.
Similarly, Nubia Millan, Alarcon’s wife, testified that he has difficulty
understanding English and that she acts as his interpreter. Millan testified that
Alarcon would answer the court in simple English words such as “yes,” and then
turn to her and ask her to interpret what had transpired. After court appearances,
Millan had to interpret the substance of the hearings into Spanish for Alarcon to
comprehend them. She testified that Alarcon will pretend to understand those
who speak to him in English in order to appear respectful and cooperative.
III. DISCUSSION
When reviewing a district court’s grant of a motion to suppress, this court
considers the totality of the circumstances and views the evidence in the light
most favorable to the defendant. See United States v. Mitchell, 274 F.3d 1307,
1310 (10th Cir. 2001). This court accepts the district court’s factual findings
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unless those findings are clearly erroneous. Id. The ultimate determination of
waiver is a question of law subject to de novo review. United States v. Toro-
Pelaez, 107 F.3d 819, 826 (10th Cir. 1997).
The government argues that the district court committed clear error when it
found that Alarcon did not understand the Miranda rights that were read to him in
English. In turn, the government argues, the district court erroneously concluded
that Alarcon did not knowingly and voluntarily waive his Miranda rights. The
government asks this court to reverse the district court’s suppression of Alarcon’s
confession.
The district court did not commit clear error when it found that Alarcon did
not understand the Miranda rights which were read to him in English. This court
will not reverse for clear error unless, after reviewing all the evidence, it is left
with a definite and firm conviction that a mistake has been made. Manning v.
United States, 146 F.3d 808, 812 (10th Cir. 1998). The credibility of witnesses,
the weight to be given evidence, and the reasonable inferences drawn from the
evidence fall within the province of the district court. United States v. Browning,
252 F.3d 1153, 1157 (10th Cir. 2001) (quotation omitted).
The evidence presented at the suppression hearing in this case can support
either a finding that Alarcon understood English or one that he did not. The
government’s witnesses testified that Alarcon conversed with the officers in
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English and did not seem to have trouble understanding them. Alarcon and
Millan, on the other hand, testified that Alarcon can understand nothing but the
most elementary English words and phrases, such as “yes,” “no,” “wife,” “son,”
and “where do you live.” Both Alarcon and Millan testified that Alarcon often
pretends to understand English because he wants to appear cooperative and is
ashamed to admit his lack of English proficiency. Most importantly, Alarcon
specifically testified that he did not understand the Miranda rights which were
read to him in English. Thus, the issue of Alarcon’s ability to comprehend the
English Miranda warnings turns entirely on the credibility of witnesses. This
court will not substitute its own opinion of how the evidence should have been
weighed for the district court’s assessment of the proper weight of the evidence
and of the credibility of witnesses. Browning, 252 F.3d at 1157. Therefore, this
court cannot say that it is left with a definite and firm conviction that the district
court erred when it found that Alarcon did not understand the Miranda warnings.
In light of this factual finding, the district court did not err in concluding
that the waiver was not knowing and intelligent. A waiver is knowing and
intelligent if it is made with full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it. Moran v. Burbine,
475 U.S. 412, 421 (1986). Warnings given in a language which the defendant
cannot comprehend do not convey the substance of the suspect’s rights. See
United States v. Bustillos-Munoz, 235 F.3d 505, 517 (10th Cir. 2000) (waiver
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knowing and intelligent because imperfect translation into a language which
defendant understood conveyed the substance of the rights waived); United States
v. Hernandez, 93 F.3d 1493, 1502 (10th Cir. 1996) (same); United States v.
Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990) (acknowledging that language
barriers may inhibit a suspect’s ability to knowingly and intelligently waive his
Miranda rights). Alarcon did not understand the rights which were read to him in
English. It would be illogical for this court to conclude that Alarcon “at all times
knew he could stand mute and request a lawyer, and that he was aware of the
State’s intention to use his statements to secure a conviction” when he could not
comprehend the language in which the warnings were read to him. See Burbine,
475 U.S. at 422-23; Hernandez, 913 F.2d at 1510. Because Alarcon’s waiver was
not knowing and intelligent, he did not validly waive his Miranda rights. 2 The
district court therefore did not err in suppressing Alarcon’s confession.
2
Because this court concludes that Alarcon’s waiver of his Miranda rights
was not knowing and intelligent, it need not reach the question of whether it was
voluntary. See Moran v. Burbine, 475 U.S. 412, 421 (1986) (a valid waiver of
Miranda rights must be both voluntary and knowing and intelligent).
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IV. CONCLUSION
For the foregoing reasons, this court AFFIRMS the district court’s order
suppressing Alarcon’s confession.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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