UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30048
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ISRAEL ALANIS, a/k/a Joe,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
(94-CR-30013)
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July 27, 1995
Before DAVIS, BARKSDALE, and DEMOSS, Circuit Judges.
PER CURIAM:1
Israel Alanis challenges the denial of his motion to suppress.
We AFFIRM.
I.
In August 1992, Alanis was, inter alia, arrested on state
charges of conspiracy to distribute, and distribution of, cocaine.
Following his arrest, Alanis initiated a conference with the FBI
concerning information he had about the "Ceballos Family", a large
1
Local Rule 47.5.1 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
cocaine distributor. Alanis arranged for his attorney and a friend
to assist him in this meeting. Neither Alanis nor his attorney
were aware that the friend was a Government informant.
The FBI was unimpressed with Alanis' information; but, nearly
a year and a half later, Alanis was indicted on federal drug
charges, based, in part, on his statements at the FBI meeting.
Alanis' motion to suppress these statements was denied. He entered
a conditional guilty plea, reserving the right to appeal the
suppression ruling, and was sentenced, inter alia, to 168 months
imprisonment.
II.
Alanis raises four bases for suppression. For a motion to
suppress, we review the district court's findings of fact for clear
error; questions of law are reviewed de novo. E.g., United States
v. Wilson, 36 F.3d 1298, 1303 (5th Cir. 1994).
A.
Alanis urges that his statements at the FBI meeting are
inadmissible because he was not given Miranda warnings prior to the
meeting. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Such
warnings must be given prior to a custodial interrogation. E.g.,
United States v. Pofahl, 990 F.2d 1456, 1487 (5th Cir.), cert.
denied, 114 S. Ct. 560 (1993). But, outside the context of
custodial interrogation, if an individual chooses to answer the
Government's questions, instead of asserting the constitutional
privilege, the response to those questions are considered
voluntary, and are not barred by the Fifth Amendment. Minnesota v.
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Murphy, 465 U.S. 420, 429-34 (1984).
The Government insists the FBI meeting was not a "custodial
interrogation", noting that Alanis initiated it, and was free to
terminate the questioning at any time. Furthermore, Alanis'
lawyer, who had counseled him not to speak with the officers, was
present throughout the meeting.
Even assuming custodial interrogation, we agree with the
district court that, although no formal Miranda warnings were
given, Alanis was apprised sufficiently of the rights protected by
Miranda. Alanis' right to an attorney was self-evident, because
his attorney was present at all times. His attorney had advised
him to remain silent, and the Government advised him that his
statements could be used against him. Under the circumstances of
this meeting, we are persuaded that the Government's procedure
effectively secured Alanis' privilege against self-incrimination.
There was no Miranda violation.
B.
Alanis contends that the presence of his friend, unknown to
Alanis as a Government informant, compromised the confidentiality
of his attorney-client relationship, and, therefore, violated his
Sixth Amendment rights. Although Government intrusion into the
attorney-client relationship may violate the Sixth Amendment,
Weatherford v. Bursey, 429 U.S. 545, 552-53 (1977), Alanis does not
allege that his friend was present during any confidential
communications between him and his attorney, or that the Government
received any information regarding those communications. Rather,
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Alanis asserts only that his friend's mere presence at the meeting
violated his Sixth Amendment right due to his friend's unknown
capacity as a Government informant. This, standing alone, does not
establish an unconstitutional intrusion. Id. at 554-56.
C.
Alanis claims ineffective assistance of counsel arising from
a conflict of interest. The alleged conflict existed because his
attorney, Thompson, also later represented his friend, who, due to
his role as an informant, had an adverse interest. Assuming,
arguendo, the existence of a conflict, Alanis must also demonstrate
that his representation was adversely effected as a result.
Strickland v. Washington, 466 U.S. 668, 692 (1984). Alanis does
not identify any prejudice arising from the alleged conflict; his
ineffective assistance claim fails. See Foxworth v. Wainwright,
516 F.2d 1072, 1077 n.7 (5th Cir. 1975).
D.
Finally, Alanis complains that various promises made by the
Government during the FBI meeting served to induce him to make
incriminating statements, thereby rendering those statements
involuntary. Government promises may give rise to involuntary
statements, but, "depending on the totality of the circumstances,
certain representations will not render a confession involuntary".
Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir.), (internal
quotation, citations, and footnotes omitted), cert. denied, 488
U.S. 900 (1988). Alanis initiated the meeting, had counsel present
at all times, and told his attorney of his desire to assist the FBI
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before the meeting, and before any alleged promises. Finally,
Alanis admits that it is unclear even whether any specific promises
were made.2 Under these circumstances, we agree with the district
court that Alanis' statements were voluntary.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
2
The district court found that the Government did represent
that Alanis' cooperation would be made known to the prosecutors,
that he would likely get a percentage of any forfeitures
resulting from his information, that he could be placed under
witness protection, if needed, and that efforts would be made to
secure his release on bond if he cooperated sufficiently.
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