FILED
NOT FOR PUBLICATION APR 29 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30074
Plaintiff - Appellee, D.C. No. 3:08-cr-00385-RE-2
v.
MEMORANDUM *
JERONIMO BOTELLO-ROSALES,
Defendant - Appellant.
Appeal from the U.S. District Court for Oregon, Portland
Anna J. Brown, District Judge, Presiding
Submitted April 25, 2013 **
Pasadena, California
Before: PREGERSON, WARDLAW and M. SMITH, Circuit Judges.
Jeronimo Botello-Rosales appeals the district court’s denial of his motion to
suppress his post-arrest statements to law enforcement officers. After the district
court denied the motion to suppress, Botello entered a conditional guilty plea to
conspiracy to manufacture marijuana in violation of 21 U.S.C. §§ 841(a)(1),
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
841(b)(1)(A)(vii), and 846, and possession of a firearm by a person unlawfully in
the United States in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). We have
jurisdiction under 28 U.S.C. § 1291, and we reverse.
The district court erred in denying Botello’s suppression motion because the
Spanish-language warning administered to Botello before he was interrogated
failed to “reasonably convey” to Botello “his rights as required by Miranda [v.
Arizona, 384 U.S. 436 (1966)].” Florida v. Powell, 130 S. Ct. 1195, 1204 (2010)
(internal quotation marks omitted) (quoting Duckworth v. Eagan, 492 U.S. 195,
203 (1989); California v. Prysock, 453 U.S. 355, 361 (1981) (per curiam)). The
district court correctly found that Detective Salas gave the following Miranda
warning to Botello in the Spanish language:
You have the right to remain silence.
Anything you say can be used against you in the law.
You have the right to talk to a lawyer and to have him present with
you during the interview.
If you don’t have the money to pay for a lawyer, you have the right.
One, who is free,1 could be given to you.
1
The detective used the word “libre” to indicate “free.” As explained below,
the district court found that this was not a correct translation.
2
As the district court concluded, this warning failed to reasonably convey the
government’s obligation to appoint an attorney for an indigent suspect who wishes
to consult one.2 See Powell, 130 S. Ct. at 1204; Miranda, 384 U.S. at 473; United
States v. Perez-Lopez, 348 F.3d 839, 848 (9th Cir. 2003).
The detective used the Spanish word “libre” to mean “free,” or without cost.
After hearing testimony from lay and expert witnesses, the district court concluded
that this usage of “libre” to mean “without cost” was not a correct translation.
“Libre” instead translates to “free” as in being available or at liberty to do
something. Additionally, the phrasing of the warning—that a lawyer who is free
could be appointed—suggests that the right to appointed counsel is contingent on
the approval of a request or on the lawyer’s availability, rather than the
government’s absolute obligation. See Perez-Lopez, 348 F.3d at 848 (“To be
required to ‘solicit’ the court, in the words of [the] warning, implies the possibility
of rejection.”). While no “talismanic incantation” is required, Prysock, 453 U.S. at
2
The Government concedes that the district court’s further conclusion that “it
is more probable than not that Botello actually understood his Miranda rights” is
irrelevant.
3
359, such an affirmatively misleading advisory does not satisfy Miranda’s
strictures. See Perez-Lopez, 348 F.3d at 848.3
That officers had previously administered correct Miranda warnings in
English to Botello does not cure the constitutional infirmity. Even if Botello
understood the English-language warnings, there is no indication in the record that
the government clarified which set of warnings was correct. See United States v.
San Juan-Cruz, 314 F.3d 384, 388, 389 (9th Cir. 2002) (“When a warning, not
consistent with Miranda, is given prior to, after, or simultaneously with a Miranda
warning, the risk of confusion is substantial, such that the onus is on the
Government to clarify to the arrested party the nature of his or her rights under the
Fifth Amendment.”). Absent such a clarification, Botello cannot be charged with
“sufficient legal or constitutional expertise to understand what are his . . . rights
under the Constitution.” San Juan-Cruz, 314 F.3d at 389 (citing Miranda, 384
U.S. at 472).
Because the warnings administered to Botello did not reasonably convey his
right to appointed counsel as required by Miranda, his subsequent statements may
3
Because we reverse on the basis of the inadequate warning of the right to
appointed counsel, we do not reach Botello’s contention that the detective’s
warning failed to reasonably convey the second Miranda warning, that anything he
said could be used against him in a court of law.
4
not be admitted as evidence against him. See Miranda, 384 U.S. at 479. We
therefore reverse the district court’s denial of Botello’s motion to suppress.
Because Botello’s guilty plea was conditioned upon the right to seek review of the
adverse determination of his motion to suppress, we vacate Botello’s conviction and
remand to the district court with instructions to allow Botello to withdraw his guilty
plea and for further proceedings consistent with this disposition.
REVERSED; VACATED; REMANDED.
5