FILED
UNITED STATES COURT OF APPEALS APR 23 2013
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-50148
Plaintiff - Appellee, D.C. No. 3:11-cr-02076-JAH-1
Southern District of California,
v. San Diego
MARIO SILVA ZAPATA,
ORDER
Defendant - Appellant.
Before: WARDLAW, BEA, and N.R. SMITH, Circuit Judges.
The memorandum disposition filed on February 6, 2013, is hereby amended.
An amended memorandum disposition is filed concurrently with this order.
With these amendments, the panel has unanimously voted to deny
Appellant’s petition for panel rehearing. Accordingly, Appellant’s petition for
panel rehearing is DENIED. No further petitions for en banc or panel rehearing
shall be permitted.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 23 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-50148
Plaintiff - Appellee, D.C. No. 3:11-cr-02076-JAH-1
v. AMENDED
MEMORANDUM*
MARIO SILVA ZAPATA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted December 4, 2012
Pasadena, California
Before: WARDLAW, BEA, and N.R. SMITH, Circuit Judges.
Mario Silva Zapata entered a conditional guilty plea agreement to the crime
of importing approximately 66.06 kilograms of marijuana into the United States, in
violation of 21 U.S.C. §§ 952 and 960. As part of the plea, he reserved his right to
appeal the district court’s denial of his motion to suppress inculpatory statements.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
He now appeals that denial. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the adequacy of a Miranda warning de novo. See United States v. San
Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002). We also review de novo whether a
defendant’s statement was voluntary. See United States v. Harrison, 34 F.3d 886,
890 (9th Cir. 1994).
The district court did not err by denying the motion to suppress Zapata’s
confession. Miranda requires that, prior to interrogation, an individual in custody
be given “meaningful advice . . . in language [he] can comprehend and on which
[he] can knowingly act.” San Juan-Cruz, 314 F.3d at 387 (internal quotations and
citations omitted). Here, the statement Zapata alleges confused him, and thus
created an ambiguous warning, occurred after he had waived his Miranda rights.
Because Zapata had waived his rights before the allegedly confusing statement was
made, the statement could not have generated confusion at the time Zapata made
his waiver decision. There was no flaw in the warnings Zapata received; they were
clear and permitted Zapata to act knowingly with respect to his rights. Thus,
Zapata received adequate Miranda warnings. See id. Taken in context, the
interrogators’ post-waiver statements were not so confusing as to undermine
Zapata’s knowing waiver of his rights.
To use a defendant’s statement against him at trial, the Government “must
prove by a preponderance of the evidence that the statement was voluntary.”
Harrison, 34 F.3d at 890. This court “consider[s] the totality of the circumstances
and determine[s] whether the government obtained the statement by physical or
psychological coercion or by improper inducement so that the suspect’s will was
overborne.” Id. (internal quotations and citations omitted). Here, after Zapata
validly waived his Miranda rights and gave vague or dishonest answers to several
questions, an agent advised him that she could not help him at sentencing if he
gave her no material with which to inform the sentencing process. Another agent
advised him that if he thought his silence was helping him, he was wrong; it was
putting him in a worse position to that he could obtain. The agents emphasized
that Zapata could “help him[self]” by “tak[ing] responsibility” for his crime.
Having assessed the totality of the circumstances, we conclude that the agents’
statements were not coercive and that Zapata’s will was not overborne. Thus,
Zapata’s subsequent confession was voluntary and admissible.
AFFIRMED.