USA. v. Gallegos

• Citation: 244 F.3d 728
• Decision Date: 27 March 2001
• Docket Number: No. 99-50585,GALINDO-GALLEGOS,99-50585
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JULIAN, aka Jose Reyes-Olague, aka Aurelio Garcia-Chairez, aka Jose Olague Reyes, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 728

244 F.3d 728 (9th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JULIAN GALINDO-GALLEGOS, aka Jose Reyes-Olague, aka Aurelio Garcia-Chairez, aka Jose Olague Reyes, Defendant-Appellant.

No. 99-50585

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 12, 2000

Filed March 27, 2001

NOTE: SEE AMENDED OPINION AT 255 F.3d 1154.

Debra A. DiIorio, DiIorio & Hall, San Diego, California, for the appellant.

Kevin J. Kelly, Assistant U.S. Attorney, San Diego, California, for the appellee.

Appeal from the United States District Court for the Southern District of California Irma E. Gonzalez, District Judge, Presiding. D.C. No. CR-98-02021-IEG

Before: Pamela Ann Rymer, Andrew J. Kleinfeld, and Richard A. Paez, Circuit Judges.

Opinion by Judge Kleinfeld; Concurrence by Judge Paez

KLEINFELD, Circuit Judge:

This criminal appeal involves an issue of when a Miranda warning must precede questioning and how broadly the aggravated felony of alien smuggling sweeps.

Facts

Two border patrol agents were looking for aliens about 1800 feet north of the Mexican border. They saw a large group of people running, assumed they were illegal aliens because of the location and the fact that they were running, and stopped them. One of the agents told the people to sit down on the ground. The other agent chased those who ran away. Among those he caught was the appellant, GalindoGallegos. Once they had the 15 or 20 people seated, an agent asked them what country they were from and whether they had a legal right to be in the United States. Galindo-Gallegos said that he was from Mexico and had no such right. The border patrol agents did not advise the group of their Miranda rights prior to this questioning. After Galindo-Gallegos admitted that he was an alien illegally present in the United States, he and others were handcuffed and put into one of the vehicles.

Galindo-Gallegos was charged (under one of his aliases) with being a deported alien found in the United States¹ and convicted after trial. He moved to suppress his admissions, but his motion was denied and his admissions came into evidence. The trial judge made an express finding that his admissions in the field "are significant and material to my determination of alienage." Galindo-Gallegos had previously been convicted of "transportation of illegal aliens."² Based on that conviction, he received the 16-level upward adjustment under the sentencing guidelines³ where the previous deporta-tion followed conviction of an aggravated felony.

Analysis

I. Miranda.

Galindo-Gallegos argues that his admissions of alienage and being in the United States illegally should have been suppressed, because he was not advised of his Miranda⁴ rights before he made them. He argues that he should be treated as having been in custody when he made them, because a reasonable person would not have felt free to leave. Because he tried to run away, and was caught and brought back, it was quite clear to him that he was in fact not free to leave. And, he argues, the border patrol officer expected the answers to her questions to be incriminating and expected to conclude that he was in the country illegally, because the group was spotted running just north of the border, and he tried to run away.

The trial judge found that the officers "in no way coerced these people to talk" in the field, and the statements were voluntary. She also found that "these are questions that need to be routinely asked of individuals who are caught or apprehended near the border" and that the questions "really are designed to elicit what could be ultimately incriminating evidence," but that the questioning did not require a prior Miranda warning. Whether a defendant was constitutionally entitled to a Miranda warning is an issue of law we review de novo.⁵ Whether a person is "in custody" for purposes of Miranda is essentially a question of fact reviewed for clear error.⁶

We have decided many Miranda cases with language that seems to bear on various circumstances of this case, but few that are factually analogous. Quotations from cases, shorn of their factual context, are not much help in making a decision. We therefore focus on the cases with some factual similarity or usable analog. The material factual circumstances here are that (1) the questioning took place out of doors; (2) the location was isolated, away from view by the general public, but there were 15 or 20 aliens and only 2 law enforcement officials; (3) no one was handcuffed, but everyone was required to sit on the ground; (4) the questions were a necessary predicate to letting anyone go free, but were also reasonably likely to elicit incriminating admissions by those for whom the facts were incriminating; and (5) the group of aliens had been caught running in an area very near the border, and GalindoGallegos had persisted in running away from the border patrol but was caught and returned to the group that had been seated on the ground.

The critical Supreme Court decision is Berkemer v. McCarty.⁷ The question there was whether roadside questioning of a motorist detained on a traffic stop amounted to custodial interrogation for purposes of Miranda. It was even more plain there than here that the motorist's next stop was jail, because he was weaving all over the road and too impaired to perform a field sobriety test without falling down.⁸ The officer decided as soon as he saw the man step out of his car, before he even talked to him, that he would be taken into custody. ⁹ And it was at least as plain that the officer's questions were likely to elicit incriminating answers. The officer asked the man if he had been using intoxicants, and he answered that he had drunk "two beers" and "smoked several joints of marijuana."¹⁰

Nevertheless, the Court held that roadside questioning of a motorist detained on a traffic stop was not custodial interrogation for purposes of Miranda.¹¹ There were two reasons. First, such traffic stops are "presumptively temporary and brief," because even if guilty of a traffic infraction, most people just get a traffic ticket and go on their way.¹² Second, and most important to this case, "the typical traffic stop is public." The importance of its being public is that "exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist's fear that, if he does not cooperate, he will be subjected to abuse."¹³ For these reasons the Court held that such questioning should be treated as within the category of a Terry stop, not as custodial interrogation for Miranda purposes. The policeman's intent to arrest was immaterial, because subjective intention was immaterial. "The only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." ¹⁴ The hypothetical reasonable man is one who is not breaking the law in so serious a way that arrest is likely,¹⁵ so even though a reasonable man as impaired as the driver in Berkemer would expect to get arrested and jailed if he was caught, he was treated as subject only to a Terry stop. ¹⁶

We decided that a Miranda warning should have been given in another case of questioning in a remote location, United States v. Beraun-Panez.¹⁷ Our reasons in that case highlight the factual differences between that case and the one before us. The differences and our Beraun-Panez reasoning show why we should apply the Berkemer analysis to the case at bar. In Beraun-Panez, we emphasized that the suspect was separated from his co-worker in a remote rural location,¹⁸ while in Berkemer the questioning took place in public. We quoted the reason why Berkemer said that the public location mattered, that it "both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit selfincriminating statements and diminishes the motorist's fear that, if he does not cooperate, he will be subjected to abuse."¹⁹

We should follow Berkemer. It is materially analogous. In the case at bar, there were two border patrol officers and 15 or 20 suspects who were stopped. Though not as public as a traffic stop on a busy street, it was public for the reason that mattered; no alien had reason to fear abuse by an officer and an unscrupulous officer would have been deterred from usingillegitimate means by all the witnesses. The Supreme Court explained in Miranda that the new procedure it required was intended to guard against police brutality and the "third degree," so that the dignity and integrity of an individual is protected from police tactics designed to overcome a suspect's will.²⁰ There is not much risk of the harms Miranda protects against, either in the roadside stop circumstances of Berkemer, or the more rural stop here, because the public setting gives rise to a likelihood of witnesses to any misconduct. Where officers apprehend a substantial number of suspects and question them in the open prior to arrest, this is ordinarily a Terry stop, not custodial questioning, under Berkemer. Denial of the motion to suppress was proper.

II. Sufficiency of evidence.

Galindo-Gallegos argues that there was insufficient evidence that he was an alien, so his conviction for being an alien found in the United States after deportation cannot stand. There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ²¹

Much of the evidence of alienage consisted of GalindoGallegos's repeated admissions that he was in fact an alien. But as his brief says, "this case is perhaps somewhat unusual in that the defense offered at trial was that the defendant, Mr. Galindo, was a proven liar." This defense was not frivolous. The defense put on evidence that Galindo-Gallegos had repeatedly lied, both...