410 F.3d 287 (5th Cir. 2005), 04-20449, United States v. Cardenas

Docket Nº:04-20449.
Citation:410 F.3d 287
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Erica CARDENAS, Defendant-Appellee.
Case Date:May 20, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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410 F.3d 287 (5th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellant,


Erica CARDENAS, Defendant-Appellee.

No. 04-20449.

United States Court of Appeals, Fifth Circuit.

May 20, 2005

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[Copyrighted Material Omitted]

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Paula Camille Offenhauser and James Lee Turner, Asst. U.S. Attys., Peter Rodney Mason (argued), Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def. (argued), Kyle Blair Welch, Houston, TX, for Cardenas.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, SMITH and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In this case, we are asked to review the decision of the district judge in proceedings regarding the prosecution of alleged participants in an alien smuggling conspiracy. The judge ordered the suppression of one of two statements made by the defendant, Erica Cardenas, after her arrest.

The court suppressed the statement despite the uncontradicted evidence that Cardenas repeatedly, voluntarily, and unambiguously had waived her Miranda rights. 1 There is little evidence of coercive police conduct, and to the extent that the district judge found that such conduct took place, her conclusion is clearly erroneous.

Some of the government's behavior could be considered sloppy, and consequently any testimony relating the supposed admissions gleaned from the challenged interview is ripe for impeachment. Such issues of evidentiary weight, however, have no bearing on Fifth Amendment analysis. It was, therefore, patently incorrect as a matter of law for the district judge to conclude that, viewing the decision in light of the totality of the circumstances, Cardenas's waiver was involuntary.


In May 2003, agents of United States Immigration and Customs and Enforcement ("ICE") were engaged in an ongoing investigation of a large-scale alien smuggling organization operating out of the Rio Grande Valley and bringing undocumented aliens from Mexico to Houston, Texas. On May 14, agents from the Brownsville ICE office contacted agents from the McAllen office and requested assistance in recovering a three-year-old alien who had been separated from his mother. Based on information received via an undercover investigation, agents had learned that the smugglers holding the child wanted to make the exchange of the child at the La Plaza Mall in McAllen, Texas, near the Mexican border.


At around 2:00 p.m. on May 15, a man (later discovered to be Juan Cisneros) delivered the child to agents posing as the child's family at the mall. After Cisneros had returned to his vehicle, tailed by undercover agents, those agents approached the vehicle to place Cisneros under arrest. Upon approaching the passenger side of the vehicle, agent Richard Serra observed a young woman, later identified as Cardenas, sitting in the vehicle holding a young infant.

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Cardenas exited the vehicle, and although Serra still had his firearm drawn, Serra took the infant from Cardenas, backed away from the car, handed his firearm to another agent (as he was excoriated by a superior for his dangerous decision to handle both the gun and the baby), and placed the infant in an air-conditioned vehicle. Cardenas, Cisneros, and the baby were transported to the McAllen border patrol office. Sometime before 5:30 that evening, all three were transported to the Harlingen ICE office, at which point the infant had been returned to Cardenas's care.

Around 6:00 p.m., Serra and agent Jose Ovalle, Jr., began interviewing Cisneros and Cardenas. Cardenas and her infant were brought to a desk in the processing area of the office, which was equipped with a computer (on which Ovalle would transcribe Cardenas's statements as she answered questions). Cardenas was read her Miranda rights, and after it was ascertained that the infant was hers and not another smuggled child, she was allowed to contact someone to pick up the child so that the baby would not have to be placed into the custody of child protective services. Cardenas reached a neighbor, who arranged for a relative to come to the office to pick up the baby.

After arrangements were made, during which time it became apparent that she was proficient in English and Spanish, Cardenas was again administered Miranda warnings. Ovalle read each section of the standard advice of rights form to her in Spanish. After each line, Ovalle translated it into English. Cardenas, line-by-line, confirmed that she understood her rights. During the next two hours, she cooperated with the agents and answered questions about the smuggled child. At the conclusion of the interview, the agents reviewed the statement with her, and she confirmed by her initials that it was a correct transcription.

There is no evidence that, at any time that day, agents coerced Cardenas to waive her Miranda rights. During the interview, Cardenas was offered food and drink and was allowed to tend to and feed her infant. She also told the agents that she did not want to have an attorney present and never indicated that she did not wish to speak with them.

After the interview, Cardenas and the infant were returned to a holding cell until a relative arrived to pick up the baby. At that point, Cardenas brought the baby to Cisneros to say goodbye and then turned the baby over to the relative. Because the Harlingen office did not have overnight accommodations and the Marshal's office in McAllen was closed for the evening, Cardenas and Cisneros were brought to the jail at the Harlingen Police Department.


Between 7:00 and 7:30 the following morning, agents transported Cardenas and Cisneros to the federal building in McAllen for their initial appearance before a magistrate judge. Upon arrival there, Cardenas was taken to the detention area on the eighth floor. Because the criminal complaint had not yet been completed, however, Cardenas was not able to be placed on the 9:00 a.m. docket.

At the same time, on the sixth floor (the United States Attorney's office), the agents and Assistant United States Attorney ("AUSA") Luis Martinez discussed the investigation and the statement given by Cardenas the previous evening. Concluding that the statement was not entirely accurate, Martinez received authorization to seek further cooperation from Cardenas. According to the agents' testimony at

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the suppression hearing, the agents asked Cardenas whether she wished to speak to Martinez, and urged her to cooperate, telling her they believed her previous statement was untruthful. Cardenas then indicated she wished to speak to Martinez. Handcuffed, she was brought from the detention area to a conference room in the U.S. Attorney's office.

What occurred at this point is the matter of some dispute. According to the government, agents again read Cardenas her Miranda rights from a form provided by the U.S. Attorney's office. Allegedly, Cardenas told the agents she understood her rights and signed the waiver form that included a waiver of her right to go before a magistrate judge.

Despite this story, i.e., that the form was executed at the beginning of the interview (about 10:30 a.m.), the waiver form indicates it was signed at 1:58 p.m. According to the government, no time was initially entered, and 1:58 was erroneously added later by one of the agents. Apparently, however, the district judge did...

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