United States Court of Appeals
Fifth Circuit
F I L E D
In the May 20, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-20449
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
ERICA CARDENAS,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
______________________________
Before DAVIS, SMITH, and DEMOSS, peatedly, voluntarily, and unambiguously had
Circuit Judges. waived her Miranda rights.1 There is little
evidence of coercive police conduct, and to
JERRY E. SMITH, Circuit Judge: the extent that the district judge found that
such conduct took place, her conclusion is
In this case, we are asked to review the clearly erroneous.
decision of the district judge in proceedings Some of the government’s behavior could
regarding the prosecution of alleged partici- be considered sloppy, and consequently any
pants in an alien smuggling conspiracy. The testimony relating the supposed admissions
judge ordered the suppression of one of two gleaned from the challenged interview is ripe
statements made by the defendant, Erica
Cardenas, after her arrest.
The court suppressed the statement despite 1
See Miranda v. Arizona, 384 U.S. 436, 444
the uncontradicted evidence that Cardenas re- (1966).
for impeachment. Such issues of evidentiary ous decision to handle both the gun and the
weight, however, have no bearing on Fifth baby), and placed the infant in an air-condi-
Amendment analysis. It was, therefore, pa- tioned vehicle. Cardenas, Cisneros, and the
tently incorrect as a matter of law for the baby were transported to the McAllen border
district judge to conclude that, viewing the patrol office. Sometime before 5:30 that
decision in light of the totality of the circum- evening, all three were transported to the
stances, Cardenas’s waiver was involuntary. Harlingen ICE office, at which point the infant
had been returned to Cardenas’s care.
I.
In May 2003, agents of United States Around 6:00 p.m., Serra and agent Jose
Immigration and Customs and Enforcement Ovalle, Jr., began interviewing Cisneros and
(“ICE”) were engaged in an ongoing investi- Cardenas. Cardenas and her infant were
gation of a large-scale alien smuggling organi- brought to a desk in the processing area of the
zation operating out of the Rio Grande Valley office, which was equipped with a computer
and bringing undocumented aliens from Mex- (on which Ovalle would transcribe Cardenas’s
ico to Houston, Texas. On May 14, agents statements as she answered questions).
from the Brownsville ICE office contacted Cardenas was read her Miranda rights, and
agents from the McAllen office and requested after it was ascertained that the infant was hers
assistance in recovering a three-year-old alien and not another smuggled child, she was
who had been separated from his mother. allowed to contact someone to pick up the
Based on information received via an under- child so that the baby would not have to be
cover investigation, agents had learned that the placed into the custody of child protective
smugglers holding the child wanted to make services. Cardenas reached a neighbor, who
the exchange of the child at the La Plaza Mall arranged for a relative to come to the office to
in McAllen, Texas, near the Mexican border. pick up the baby.
A. After arrangements were made, during
At around 2:00 p.m. on May 15, a man which time it became apparent that she was
(later discovered to be Juan Cisneros) deliv- proficient in English and Spanish, Cardenas
ered the child to agents posing as the child’s was again administered Miranda warnings.
family at the mall. After Cisneros had returned Ovalle read each section of the standard advice
to his vehicle, tailed by undercover agents, of rights form to her in Spanish. After each
those agents approached the vehicle to place line, Ovalle translated it into English. Carden-
Cisneros under arrest. Upon approaching the as, line-by-line, confirmed that she understood
passenger side of the vehicle, agent Richard her rights. During the next two hours, she
Serra observed a young woman, later identi- cooperated with the agents and answered
fied as Cardenas, sitting in the vehicle holding questions about the smuggled child. At the
a young infant. conclusion of the interview, the agents re-
viewed the statement with her, and she con-
Cardenas exited the vehicle, and although firmed by her initials that it was a correct
Serra still had his firearm drawn, Serra took transcription.
the infant from Cardenas, backed away from
the car, handed his firearm to another agent (as There is no evidence that, at any time that
he was excoriated by a superior for his danger- day, agents coerced Cardenas to waive her
2
Miranda rights. During the interview, Carden- was brought from the detention area to a
as was offered food and drink and was allowed conference room in the U.S. Attorney’s office.
to tend to and feed her infant. She also told
the agents that she did not want to have an
attorney present and never indicated that she What occurred at this point is the matter of
did not wish to speak with them. some dispute. According to the government,
agents again read Cardenas her Miranda rights
After the interview, Cardenas and the infant from a form provided by the U.S. Attorney’s
were returned to a holding cell until a relative office. Allegedly, Cardenas told the agents she
arrived to pick up t he baby. At that point, understood her rights and signed the waiver
Cardenas brought the baby to Cisneros to say form that included a waiver of her right to go
goodbye and then turned the baby over to the before a magistrate judge.
relative. Because the Harlingen office did not
have overnight accommodations and the Mar- Despite this story, i.e., that the form was
shal’s office in McAllen was closed for the executed at the beginning of the interview
evening, Cardenas and Cisneros were brought (about 10:30 a.m.), the waiver form indicates
to the jail at the Harlingen Police Department. it was signed at 1:58 p.m. According to the
government, no time was initially entered, and
B. 1:58 was erroneously added later by one of the
Between 7:00 and 7:30 the following morn- agents. Apparently, however, the district
ing, agents transported Cardenas and Cisneros judge did not accept this version, concluding
to the federal building in McAllen for their that “the totality of the evidence indicates that
initial appearance before a magistrate judge. the AUSA . . . at 1:58 p.m., immediately
Upon arrival there, Cardenas was taken to the before the scheduled 2:00 p.m. magistrate
detention area on the eighth floor. Because docket, had the defendant sign the form wav-
the criminal complaint had not yet been com- ing her right to appear before the magistrate to
pleted, however, Cardenas was not able to be be advised of her rights by this neutral judicial
placed on the 9:00 a.m. docket. officer.”
At the same time, on the sixth floor (the Nevertheless, the record indicates, and the
United States Attorney’s office), the agents district judge did not appear to disbelieve, that
and Assistant United States Attorney when Martinez arrived in the conference room,
(“AUSA”) Luis Martinez discussed the inves- he reviewed with Cardenas her Miranda rights
tigation and the statement given by Cardenas “very, very carefully, very slowly, very deliber-
the previous evening. Concluding that the ately.” Martinez testified that he advised
statement was not entirely accurate, Martinez Cardenas that she did not have to speak with
received authorization to seek further coopera- him but that anything she said could be used
tion from Cardenas. According to the agents’ against her in court, and that she could have an
testimony at the suppression hearing, the attorney immediately if she wanted one, even
agents asked Cardenas whether she wished to if she could not pay for one. Nevertheless,
speak to Martinez, and urged her to cooperate, Cardenas chose to speak with Martinez and
telling her they believed her previous statement declined to have an attorney present.
was untruthful. Cardenas then indicated she
wished to speak to Martinez. Handcuffed, she Ovalle asked most of the questions during
3
this interview but did not electronically tran- were the result of coercive and deceptive
scribe Cardenas’s answers. Instead, he testi- police conduct. Concluding that Cardenas had
fied that he took notes of the interview from voluntarily waived her Miranda rights before
which he created a report some thirty minutes the first interview, the district judge did not
later. Despite taking notes while present, suppress the statements made at that inter-
Ovalle admits that he was not in the room for view. With respect to the second interview,
the entire interview, but instead left the room however, the judge found that the conduct of
a few times to make and receive telephone the government “agents was rife with intimi-
calls. dation, coercion, and deception.” Conse-
quently, the judge did not believe that Carden-
Although Serra and Martinez were present as had made a knowing and intelligent waiver
for the entirety of the interview, Ovalle never of her rights, so the judge suppressed the
asked either person what was said in the inter- statements made at the second interview, then
view during his absences. Suspiciously, both stayed the trial pending the government’s
Ovalle’s notes and those allegedly taken by appeal of the suppression decision.
Martinez were shipped to the U.S. Attorney’s
office in Houston, where both sets of notes al- II.
legedly have been misplaced. The only written A.
account of the interview, therefore, is Ovalle’s “‘In reviewing a ruling on a motion to
report written after the interview without full suppress a confession, we give credence to the
knowledge of what was said. credibility choices and fact finding by the
district court unless they are clearly errone-
According to the testimony of the agents ous,’ but ‘the ultimate issue of voluntariness is
who were present for the interview, Carden- a legal question reviewed de novo.’ Likewise,
as’s statement at the U.S. Attorney’s office in ‘a district court’s determination regarding the
McAllen differed significantly from her state- validity of a defendant’s waiver of his Miranda
ment made the night before at the Harlingen rights is a question of law reviewed de novo,
ICE office. In the second interview, Cardenas but this court accepts the factual conclusions
allegedly conceded that she was with Cisneros underlying the district court’s legal determina-
when they drove to a man named Don Victor’s tion unless they are clearly erroneous.”2
house to pick up the smuggled child. She
described Victor as a “smuggler of people” B.
and admitted that Cisneros was to be paid To counter the inherently coercive nature of
$100 for delivering the child. Finally, accord- custodial interrogation, under Miranda, “the
ing to Martinez, Cardenas admitted that she prosecution may not use statements, whether
“would get some benefit” from the payment exculpatory or inculpatory, stemming from
and realized that her conduct was wrong. custodial interrogation of the defendant unless
C.
On the eve of trial, the district judge held an 2
United States v. Solis, 299 F.3d 420, 439 (5th
evidentiary hearing to consider Cardenas’s
Cir. 2002) (quoting United States v. Mullin, 178
motion to suppress, in which Cardenas con-
F.3d 334, 341 (5th Cir. 1999); United States v.
ceded that she executed multiple Miranda Garcia Abrego, 141 F.3d 142, 171 (5th Cir.
rights waivers, but she contends the waivers 1998)).
4
it demonstrates the use of procedural safe- been made with a full awareness of both the
guards effective to secure the privilege against nature of the right being abandoned and the
self-incrimination.” There is no talismanic consequences of the decision to abandon it.
incantation of phrases required to satisfy the
strictures of Miranda. See California v. Pry- Andrews, 22 F.3d at 1337 (quoting Moran v.
sock, 453 U.S. 355, 359 (1981). Nevertheless, Burbine, 475 U.S. 412, 421 (1986)).
the Miranda safeguards are “most commonly
satisfied by giving the defendant the customary The voluntariness determination is made on
Miranda warnings: That he has the right to a case-by-case basis and is viewed under the
remain silent, that anything he says can be used totality of the circumstances surrounding the
against him in a court of law, that he has the interrogation. United States v. Reynolds, 367
right to the presence of an attorney, and that F.3d 294, 298 (5th Cir. 2004). A crucial
an attorney will be provided for him if he aspect is the presence or absence of coercive
cannot afford to hire one.” United States v. behavior on the part of the government. “[t]he
Andrews, 22 F.3d 1328, 1337 (5th Cir. 1994). voluntariness of a waiver of [Miranda rights]
has always depended on the absence of police
Despite these safeguards, custodial interro- overreaching, not on ‘free choice’ in any
gation may still be used to elicit confessions. broader sense of the word.” Connelly v.
Once adequate warnings have been given, a Colorado, 479 U.S. 157, 170 (1986).
suspect may knowingly and intelligently waive
his Miranda rights and agree to answer ques- C.
tions. See, e.g., id. Thus, although one pur- At the outset, we address the district
pose of the Miranda framework is to free judge’s concern over Cardenas’ alleged waiver
courts from deciding the voluntariness of a of her right to appear before a magistrate
confession under the totality of the circum- judge. To recap, the record demonstrates that
stances, a similar task devolves on us to deter- Cardenas could not be placed on the Friday
mine the voluntariness of a waiver.3 A de- 9:00 docket because the complaint against her
fendant’s waiver of his Miranda rights is effec- had not been finalized.4 With respect to the
tive only if voluntary.
The inquiry whether a valid waiver has 4
At oral argument it was suggested that per-
occurred “has two distinct dimensions. haps Cardenas was improperly kept off of the 9:00
First, the relinquishment of the right must a.m. docket. Were this the case, suppression of her
have been voluntary in the sense that it was statements made on the morning of May 16 might
the product of a free and deliberate choice be appropriate. See United States v. Causey, 835
rather than intimidation, coercion, or de- F.2d 1527, 1529 (5th Cir. 1988). Nevertheless the
ception. Second, the waiver must have uncontradicted testimony at the suppression hear-
ing was that the delay was solely attributable to the
government’s need to complete the criminal com-
3
See Missouri v. Seibert, 124 S. Ct. 2601, plaint. Nowhere in the record does it appear that
2608 (2004) (noting that Miranda sprouted from Cardenas has ever challenged that explanation until
“our concern that the ‘traditional totali- oral argument on this appeal. We therefore accept
ty-of-the-circumstances’ test posed an ‘unaccept- the district judge’s tacit determination that this first
ably great’ risk that involuntary custodial confes- delay was not the result of any improper behavior
sions would escape detection.”). (continued...)
5
2:00 p.m. docket, the district judge found that delayed, only evidence that resulted from the
the government had succeeded, just two min- delay would need to be suppressed. A defen-
utes before the 2:00 hearing, in persuading dant is not prejudiced where “[h]e had already
Cardenas to waive her right to appear before signed a confession and nothing happened in
the magistrate judge. According to the gov- the interval [caused by the unnecessary delay]
ernment, at the 2:00 court appearance, a to damage him or to affect his defense ad-
representative of the Federal Public Defenders versely.” Id.
office (though he would not be formally ap-
pointed to represent Cardenas until the follow- By the district judge’s own findings of fact,
ing Monday) agreed to postpone her appear- Cardenas’s second interview took place before
ance until after the weekend. Cardenas, for the waiver form (which contained a waiver of
her part, argues that because the public de- the right to an appearance) was signed at 1:58
fender had not yet been appointed, he could p.m. Thus, no evidence was elicited as a result
not effectively agree to such an extension. of the delay. Cardenas therefore can demon-
strate no prejudice.
It appears that in suppressing Cardenas’s
second statement the district judge relied, to Even if we were to believe that Cardenas
some extent, on what she perceived as inap- was coerced at 1:58 into waiving her right to
propriate behavior with respect to Cardenas’s a prompt appearance before a magistrate
right to an initial appearance. Cardenas, on judge, the suppression of her second statement
appeal, contends that she did not voluntarily would not be an appropriate remedy, because
waive her right to an appearance and, as a there would be no causal connection between
result, the suppression of her statement is the two. Any references in the district judge’s
appropriate. decision, or Cardenas’s brief, to the failure to
present Cardenas promptly to a magistrate
“A person making an arrest within the judge are therefore beside the point and cannot
United States must take the defendant without support the suppression of Cardenas’s second
unnecessary delay before a magistrate judge . statement.
. . .” FED. R. CRIM. P. 5(a)(1)(A) (emphasis
added). Where a violation of Rule 5(a) is D.
shown, the appropriate remedy is the suppres- The district judge did not challenge the
sion of any evidence obtained as a result of the validity of Cardenas’s waiver of her rights
delay. Causey, 835 F.2d at 1529.5 before the first interview. Presumably, there-
fore, the judge found that Cardenas had volun-
Nevertheless, assuming arguendo that Car- tarily made a knowing and intelligent waiver of
denas’s initial appearance was unnecessarily her rights to remain silent and to have counsel
present during questioning. This means that at
some point between Thursday evening’s and
4
(...continued) Friday morning’s interviews, Cardenas either
on the part of government personnel. (1) forgot the nature o r significance of her
5 rights or (2) chose to exercise them but had
See also Mallory v. United States, 354 U.S.
her will overridden by intimidation, coercion,
449, 453 (1957) (deeming it “necessary to render
inadmissible incriminating statements elicited from
or deception.
defendants during a period of unlawful detention”).
6
We have never held that a new recitation of rights, and then, at 1:58 p.m., immediately
rights is required with every break in interro- before the scheduled 2:00 p.m. magistrate
gation. We have found it “incomprehensible” docket, had the Defendant sign a form
that over a three hour span the defendant went waiving her right to appear before the
from knowing and understanding the nature of Magistrate to be advised of her rights by
his rights to forgetting them and therefore this neutral judicial officer.
making an unintelligent decision to speak to
police. Evans v. McCotter, 790 F.2d 1232, (Brackets and emphasis in original.)
1238 (5th Cir. 1986). Here, neither the district
judge nor Cardenas has contended that a The record contains uncontroverted testi-
similar onset of amnesia took place. There- mony that the oral recitation of what the
fore, if Cardenas’s second waiver of rights was district judge dubbed “some” of the defen-
involuntary, it must have been the result of the dant’s rights included her right to remain
conduct of the government, which the district silent, her right to an attorney, and the right to
judge called “rife with intimidation, coercion, have an attorney appointed free of charge.
and deception.” The record also indicates, without any contra-
dicting testimony, that Cardenas said she
Even without challenging any of the district understood these rights and still wished to
judge’s specific factual determinations, it is speak with Martinez. In fact, the only right
difficult to see how the totality of the circum- that was not discussed with Cardenas was her
stances indicates Cardenas’s waiver was invol- right to an initial appearance. Yet, as we have
untary. The district judge reasonably deter- shown, no prejudice resulted from any delay in
mined that contrary to the agents’ testimony, bringing Cardenas before the magistrate judge.
Cardenas did not sign the written waiver form Because the second interview took place in the
until just before the 2:00 p.m. hearing. Never- morning of May 16 and was completed before
theless, it is undisputed that Martinez orally the beginning of the 2:00 docket, no statement
reviewed Cardenas’s Miranda rights with her, was taken as a result of any unwarranted
the same rights she had waived the previous delay.
evening. The district judge concluded,
Therefore, despite the district judge’s
Although he had the written waiver docu- conclusion that Cardenas did not sign the
ment available to him and, in fact, required written waiver form until 1:58 p.m. (after
the Defendant to sign it, the AUSA did not giving her statement), the record demonstrates
read the document to the Defendant and that Cardenas (1) was twice read her Miranda
neglected to advise her that, by signing the rights on the previous evening and voluntarily
statement, she would also “give up [her] waived them, and (2) was orally reminded of
rights to appear before a Federal Magistrate those rights the next morning, at which time
or other official for an initial appearance she again chose to waive her rights. The
and to have such Magistrate or other offi- absence of the execution of the written waiver
cial advise [her] of [her] rights, and make a form before to the second interview, therefore,
probable cause determination.” . . . In does not demonstrate that Cardenas waived
fact, the totality of the evidence indicates her rights involuntarily.
that the AUSA took her statement in the
morning, after orally giving her some of her As other evidence o f police “intimidation,
7
coercion, and deception,” the district judge once the defendant was taken to the AUSA
pointed to the fact that the government agents for further interrogation, she was placed in
accused her of lying in her first statement and a chair and questioned in the presence of
“warned her that the only way she could help four men, including the AUSA and the
herself now was to talk to the AUSA.” The three agents. Three of these men were
agents also encouraged her to cooperate with present throughout the entire interview, but
the government as a witness. We have never oneSSOvalleSSwas walking in and out of
held that these sorts of customary police the room, discussing the case on his cell
tactics constitute such gross intimidation or phone in a manner that the Court perceives
coercion so as to overcome a defendant’s free was designed to intimidate the Defendant
will and render his statements inadmissable.6 by suggesting urgency.
The district judge also relied on the fact
that Cardenas remained handcuffed during the As a threshold matter, we know of no case in
second interview. Such basic police proce- which the fact that the interrogating officers
dures as restraining a suspect with handcuffs were men or women has been determinative of
have never been held to constitute sufficient a statement’s admissibility. In fact, the adop-
coercion to warrant suppression.7 tion of such a presumption would raise equal
protection concerns.8 Without any reference
The district judge also placed emphasis on to even the agents’ physical stature, let alone
the fact that, any supposedly intimidating tactics employed,
the sex of one’s interrogators cannot serve as
the basis for suppression, at least not under the
facts of the present case.
6
See United States v. Bell, 367 F.3d 452, 462
(5th Cir. 2004); United States v. Paden, 908 F.2d No more credence can be given to the
1229, 1235 (5th Cir. 1990) (“Encouraging a court’s emphasis on the number of agents
defendant to tell the truth, however, does not render present. Were there only one agent present,
a statement involuntary.”); United States v. Bal- we might hear a defendant complain that the
lard, 586 F.2d 1060, 1063 (5th Cir. 1978)
absence of corroborating witnesses renders a
(“[T]elling the [defendant] in a noncoercive manner
confession suspect. Indeed, the district judge
of the realistically expected penalties and encourag-
ing her to tell the truth is no more than affording went on to argue that the lack of electronic
her the chance to make an informed decision with transcription of Cardenas’s second statement
respect to her cooperation with the government.”); militates toward suppressing it. This concern
United States v. Tatum, 121 F.Supp.2d 577, 587 would only be exaggerated by the presence of
(E.D. Tex. 2000) (“[E]ncouraging the defendant to merely one agent.
be honest is not so coercive as to render the de-
fendant’s incriminating statements involuntary.”);
8
accord United States v. Nguyen, 155 F.3d 1219, See Caban v. Mohammed, 441 U.S. 380, 398
1223 (10th Cir. 1998). (1979) (“[G]ender-based statutory classifications
deserve careful constitutional examination because
7
See United States v. Rico, 51 F.3d 495, 507 they may reflect or operate to perpetuate mythical
(5th Cir. 1995); United States v. Ogden, 572 F.2d or stereotyped assumptions about the proper roles
501, 502 (5th Cir. 1978) (“The fact that defendant and the relative capabilities of men and women that
was wearing handcuffs does not indicate or even are unrelated to any inherent differences between
suggest that he was coerced.”). the sexes.”).
8
Furthermore, under the district judge’s she waived her Miranda rights. Were we the
logic, the use of a cell phone during an inter- factfinder, we might well be suspect of the
view with a suspect contributes to a finding of accuracy of Ovalle’s account of the second
intimidation. We disagree. It cannot logically interview, given his periodic absence from the
be said that their use necessarily renders invol- conference room. Nevertheless, such ques-
untary a defendant’s decision to waive tions are customary grist for the jury mill and
Miranda rights. If anything, the use of a cell do not raise constitutional concerns.
phone by an interrogating officer might be
interpreted as a lack of interest in the goings E.
on of the interview and removes a sense of In conclusion, Cardenas was informed of,
urgency from the questioning. and waived, her Miranda rights at least three
times before giving the second statement that
The district judge also relied on the lack of the district judge suppressed. Throughout this
immediate transcription of Cardenas’ second time, the conduct of the government agents
statement as further evidence of its involuntary was no more coercive or intimidating than can
nature. That is, somehow, the judge believed regularly be expected from the very nature of
the lack of a written copy of the statement, custodial interrogation. There is no indication
while obviously undercutting the weight of that Cardenas’s will was overridden or that she
such a confession, indicates that Cardenas’s did not understand the nature of the rights she
waiver of her Miranda rights was somehow was waiving. Under the totality of the circum-
the result of coercion or intimidation. On stances, therefore, the waiver of her Miranda
appeal, Cardenas buttresses this argument by rights was voluntary, and the statement should
pointing out that several jurisdictions require be admitted.
the recording of interviews to ensure their
admissibility.9 Neither this court nor the The order of the district judge is
Supreme Court, however, has ever held that REVERSED, and this matter is REMANDED
such a requirement is necessary to comply with for further proceedings in accordance with this
the Fifth Amendment’s protection against self- opinion.
incrimination.
Although the testimony of a police officer
or prosecutor will often be believed over the
contradictory account of an accused, this is a
problem that goes to the weight to be given to
such evidence by the jury, not the voluntary
nature of one’s waiver of Miranda rights. In
fact, from the record, it does not appear
Cardenas would have any indication that her
statement would not be recorded at the time
9
See, e.g., Stephan v. State, 711 P.2d 1156,
1161 (Alaska 1985); State v. Scales, 518 N.W.2d
587, 592 (Minn. 1994).
9