UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40002
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUVENTINO ALVARADO-SALDIVAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
( August 17, 1995 )
Before GARWOOD, WIENER and PARKER, Circuit Judges.
PER CURIAM:
Appellant, Juventino Alvarado-Saldivar ("Alvarado") appeals
his conviction for conspiracy, possession, and importation of
marihuana and cocaine, with the intent to distribute. Appellant
contends that the trial court's failure to suppress statements he
made to officers during a custodial interrogation requires reversal
of his convictions. We reject his argument and affirm the
convictions.
FACTS
Around 8:30 a.m. on August 12, 1994, United States Border
Patrol Agents Terry Hunt ("Hunt") and Noe Vasquez ("Vasquez") were
stationed in the brush along a trail used for alien and drug
trafficking located near San Pedro, Texas, one mile from the Rio
Grande River. They spotted Alvarado walking slowly north on the
trail. Vasquez stepped out of the brush and, in Spanish,
identified himself as immigration, told Alvarado to raise his
hands, kneel down and keep quiet. Instead of complying with
Vasquez's instructions, Alvarado turned and yelled back toward the
south in Spanish, "Don't come. Go back. Don't come anymore,"
using the plural expression as if he were speaking to more than one
person. Alvarado ultimately complied with the officer's requests,
and Vasquez handcuffed him. Hunt arrived at the scene momentarily,
and told Vasquez that he had seen two other men drop some bundles,
and head south down the trail. The two men escaped, but Hunt
retrieved the bundles, which tests later determined contained
marijuana and cocaine.
After searching the area, Vasquez and Hunt took Alvarado to
the Harlingen Border Patrol Station. Vasquez gave him Miranda
warnings orally in Spanish at the time of his arrest and in written
Spanish at the station. After providing some information and
statements, Alvarado stated that he did not want to say anything
else. Vasquez testified that he understood that Alvarado was
invoking his right to remain silent. However, he asked Alvarado if
he would answer questions on an "I-213 Deportation Form" regarding
his identification and when he had crossed the river. After
Alvarado had answered the questions on this form as to his name,
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date and place of birth and address, he reiterated that he had
nothing else to say. Alvarado and the bundles of drugs were turned
over to Drug Enforcement Administration ("DEA") Agent Larry
Councilman ("Councilman") and Investigator Ricardo Perez ("Perez")
of the Cameron County, Texas Sheriff's Department.
Councilman and Perez transported Alvarado to the DEA office in
Brownsville where he was photographed and finger printed by Agent
William Newell ("Newell"). Newell testified that he asked whether
Alvarado was willing to speak to law enforcement agents, and
Councilman said that he was. Newell was not told that Alvarado had
previously invoked his right to remain silent. In the subsequent
interview, after Newell once again read him his rights in Spanish,
Alvarado made the two statements that he now claims should have
been suppressed. First, he said that he had been set up by the
Border Patrol, because they were out to get him. Second he offered
to become an informant for the DEA.
PROCEEDINGS BELOW
Alvarado filed a motion to suppress, claiming that the
statements made to the arresting immigration officers and later to
the agents of the DEA were not voluntarily given. At the pre-trial
suppression hearing, Alvarado argued that his statements should be
suppressed because he was injured during the arrest, and was
thereby coerced into giving statements. The district court held
that the government was not to elicit any evidence regarding an
incident not relevant to this appeal, but denied the motion to
suppress as to all other matters, finding "no indication whatsoever
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that the statements made to the DEA agents were involuntarily made
or that there was any coercion or force or any improper matters
engaged in by the DEA agent." Alvarado's statements made to Newell
were introduced into evidence at trial.
ADMISSIBILITY OF STATEMENTS MADE TO DEA AGENT NEWELL
Alvarado argues that the statements made to Newell should not
have been admitted into evidence because law enforcement agents did
not scrupulously honor his right to remain silent after he
communicated his desire to cease talking, relying on Michigan v.
Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).
a. Standard of review.
Although Alvarado filed a motion to suppress all of his
statements to law enforcement officers, including those that are
the focus of this appeal, he argued to the district court that he
was entitled to suppression because his statements were coerced by
physical violence. He did not argue, either in his written motion
or in open court, that use of his statements violated his Fifth
Amendment right to remain silent under the test set forth in
Michigan v. Mosley, 423 U.S. 96 (1975). Because Alvarado raised
this question for the first time on appeal, we review it for plain
error. FED. R. CRIM. P. 52(b); United States v. Calverley, 37 F.3d
160, 162 (5th Cir. 1994), cert. denied, 115 S.Ct. 1441 (1995). An
appellant who raises an issue for the first time on appeal has the
burden to show that there is actually an error, that it is plain,
and that it affects substantial rights. United States v. Olano,
___U.S.___, 113 S.Ct. 1770, 1777-78 (1993). If these factors are
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established, the decision to correct the forfeited error is within
the sound discretion of the court, and the court will not exercise
that discretion unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. 113
S.Ct. at 1778.
b. Did the district court plainly err?
Alvarado contends that because he invoked his right to remain
silent while Vasquez was questioning him, any questions put to him
later by Newell necessarily violated his Fifth Amendment rights.
The admissibility of a defendant's statements made as a result of
custodial interrogation after the defendant has invoked his right
to remain silent is governed, as Alvarado contends, by Michigan v.
Mosley, 423 U.S. 96 (1975). "The admissibility of statements
obtained after the person in custody has decided to remain silent
depends under Miranda on whether his 'right to cut off questioning
was 'scrupulously honored.'" Mosley, 423 U.S. at 104, 96 S.Ct. at
326 (quoting Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602,
1630, 16 L.Ed.2d 694 (1966)). With no bright line test, courts
must evaluate the facts of each case to determine if the resumption
of police interrogation was consistent with scrupulous observance
of the right to cut off questioning. Wilcher v. Hargett, 978 F.2d
872, 877 (5th Cir. 1992).
In Mosley, the Supreme Court found the following factors
important in determining if the defendant's right to remain silent
was scrupulously honored: (1) whether the suspect was advised prior
to initial interrogation that he was under no obligation to answer
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question; (2) whether the suspect was advised of his right to
remain silent prior to the reinterrogation; (3) the length of time
between the two interrogations; (4) whether the second
interrogation was restricted to a crime that had not been the
subject of earlier interrogation; and (5) whether the suspect's
first invocation of rights was honored. Mosley, 423 U.S. at 104-
105, 96 S.Ct. at 327. Alvarado was advised of his rights before
each of the interrogations; factors one and two weigh in favor of
the government. The record does not afford us enough information
to determine the length of time between the two interrogations for
purposes of the third factor, except to say that they occurred the
same day. This factor weighs neither for nor against Alvarado. In
reference to factor four, both discussions included references to
the drug crime that formed the basis of Alvarado's eventual
conviction. Factor four weighs in favor of Alvarado.
Finally, the question of whether or not the Alvarado's first
invocation of rights was honored was not resolved by the district
court. Alvarado asks us to assume that once he invoked his right
to remain silent, he never changed his mind and answered all
subsequent questions only because of duress or coercion brought to
bear by law enforcement agents. The record does not support this
conclusion. Newell testified that Councilman told him that
Alvarado was willing to talk to him. Councilman had custody of
Alvarado during the ride from Harlingen to Brownsville, and so
Alvarado had ample opportunity to tell Councilman that wished to
talk to the DEA. The nature of his statements to Newell (that he
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had been framed and that he wished to become a DEA informant)
support the inference that Alvarado chose to talk to the DEA in an
effort to improve his circumstances. The record contains no
evidence concerning any discussions between Councilman and Alvarado
that would either support or undermine Newell's testimony.
For a fact issue to be properly asserted as plain error on
appeal, it must be one arising outside of the district court's
power to resolve. United States v. Lopez, 923 F.2d 47, 50 (5th
Cir.), cert. denied, 111 S.Ct. 2032 (1991). Whether Alvarado told
Councilman that he was willing to talk with a DEA agent is a
factual issue that could and should have been determined by the
district court during the hearing on the motion to suppress.
Alvarado failed to develop the factual basis, make the argument, or
secure a ruling by the district court on his contention that the
invocation of his right to remain silent was not scrupulously
honored. Therefore, there is no basis for us to make that
determination. This final Mosley factor, standing alone, is enough
to abrogate Alvarado's position in this case.
We conclude that Alvarado has not established that the
district court erred in failing to suppress the statements because
his right to remain silent was not scrupulously honored.
Therefore, we need not address the remaining plain error factors.
CONCLUSION
For the foregoing reasons, we AFFIRM Alvarado's convictions.
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