NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 30 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-30069
Plaintiff - Appellee, D.C. No. 3:08-cr-00385-RE-2
v.
MEMORANDUM*
JERONIMO BOTELLO-ROSALES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
James A. Redden, Senior District Judge, Presiding
Argued and Submitted July 14, 2011
Portland, Oregon
Before: PREGERSON, WARDLAW, and M. SMITH, Circuit Judges.
Jeronimo Botello-Rosales appeals his conviction of conspiracy to
manufacture marijuana in violation of 21 U.S.C. § 841(a)(1), and possession of a
firearm by a person unlawfully in the United States in violation of 18 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 922(g)(5). We have jurisdiction under 28 U.S.C. § 1291, and we remand to the
district court for a new evidentiary hearing.
Botello entered a guilty plea following the district court’s denial of his
motion to suppress statements he gave law enforcement officers. Botello argues
that the district court erred in denying the suppression motion because the police
officer violated Miranda v. Arizona, 384 U.S. 436, 473 (1966), by preceding his
interrogations with a mistranslated Spanish-language warning that failed to convey
the government’s obligation to appoint counsel for indigent defendants. An officer
translated the warning into Spanish from memory, the interrogation was not
recorded, and no Spanish-certified court reporter was present at the suppression
hearing, which itself was not recorded. Therefore, where the officer testified about
what he remembered saying to Botello, the record states simply: “(The answer is
then given in Spanish.)”
To determine the adequacy of a Miranda warning, we must examine the
words used to determine if “the warnings reasonably ‘conve[y] to [a suspect] his
rights as required by Miranda.’” Florida v. Powell, 130 S. Ct. 1195, 1204 (2010)
(alterations in original) (quoting Duckworth v. Eagan, 492 U.S. 195, 203 (1989)).
Our case law in this area makes clear that, at a minimum, this inquiry requires a
finding of fact as to what was actually said. See Doody v. Ryan, — F.3d —, 2011
2
WL 1663551 at *2, *13 (9th Cir. May 4, 2011); id. at *35–*39 (Kozinski, C.J.,
concurring in the judgment); United States v. Perez-Lopez, 348 F.3d 839, 842, 848
(9th Cir. 2003); United States v. San Juan-Cruz, 314 F.3d 384, 386–87, 389 (9th
Cir. 2002); United States v. Connell, 869 F.2d 1349, 1350–51, 1352 (9th Cir.
1989).
As there is insufficient record evidence to determine whether police
adequately administered the Miranda warning, we REMAND this case to the
district court for additional fact-finding as to the content of the Spanish-language
warning administered to Botello, and whether the words used adequately conveyed
to Botello his Miranda rights.
REMANDED
3