U.S. v. Hernandez

• Decision Date: 10 September 1990
• Docket Number: No. 89-3210,89-3210
• Citation: 913 F.2d 1506
• Parties: , 31 Fed. R. Evid. Serv. 222 UNITED STATES of America, Plaintiff-Appellee, v. Zenon HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1506

913 F.2d 1506

59 USLW 2186, 31 Fed. R. Evid. Serv. 222

UNITED STATES of America, Plaintiff-Appellee, v. Zenon HERNANDEZ, Defendant-Appellant.

No. 89-3210.

United States Court of Appeals, Tenth Circuit.

Sept. 10, 1990.

Rehearing Denied Oct. 18, 1990.

Kim I. Martin, Asst. U.S. Atty. (Lee Thompson, U.S. Atty., with her on the brief), Wichita, Kan., for plaintiff-appellee.

Marilyn M. Trubey, Asst. Federal Public Defender (Charles D. Anderson, Federal Public Defender, with her on the brief), Topeka, Kan., for defendant-appellant.

Before McKAY and BALDOCK, Circuit Judges, and COOK, District Judge. ^*

BALDOCK, Circuit Judge.

Defendant-appellant Zenon Hernandez was convicted by a jury of making false statements in connection with the acquisition of a firearm, 18 U.S.C. Sec. 922(a)(6), and receiving a firearm while an illegal alien, 18 U.S.C. Sec. 922(g)(5). Hernandez argues on appeal that the district court erred in: 1) failing to suppress his statements to the arresting officer, 2) holding that his application for amnesty under the Immigration Reform and Control Act of 1986 could be admitted into evidence, United States v. Hernandez, 714 F.Supp. 1140 (D.Kan.1989), 3) admitting computer printouts reflecting his amnesty application, and 4) denying his motion for a judgment of acquittal based on insufficient evidence. Our jurisdiction arises under 28 U.S.C. Sec. 1291. We affirm.

I.

On the morning of November 27, 1987, Kansas State Trooper Daniel Dick observed a vehicle traveling westbound on Highway 50 near Dodge City, Kansas at an excessive rate of speed. The trooper pulled the car off the highway, walked to the vehicle and requested in English that Hernandez, the driver, produce his license. The trooper observed two passengers in the car, Antonio Valadez and Manuel Delatore, as well as several open containers of beer. Upon returning to his patrol car, he ran a check on Hernandez's driver's license and discovered it to be suspended. Hernandez was cited for driving with a suspended license, Kan.Stat.Ann. Sec. 8-262 (1982); the two passengers were cited for transporting open containers of alcoholic beverages in an automobile, Kan.Stat.Ann. Sec. 41-804 (1986). While writing out the citations, the trooper observed Hernandez pass an object to the passenger in the back seat who then ducked below window level for about a minute. The trooper returned to the vehicle and informed Hernandez in English that he was under arrest. ¹ Hernandez appeared to understand the trooper's statement, but said that his knowledge of English was poor. The trooper requested that Valadez translate Hernandez's Miranda rights into Spanish. Valadez had consumed three or four beers but claimed to understand the officer's warnings. After receiving Miranda warnings in English and Spanish, Hernandez indicated to the trooper that he understood his rights.

The trooper called a tow truck to remove Hernandez's car from the highway because he suspected that Valadez and Delatore might be intoxicated. He conducted an inventory search of the vehicle and discovered a Colt pistol, serial number RC44746, stuffed between the seat cushions of the back seat. The trooper asked Valadez and Delatore to whom the gun belonged. They replied that it belonged to Hernandez. The trooper then asked Hernandez in English whether the pistol belonged to him; Hernandez acknowledged ownership of the weapon. While being transported in the patrol car, Hernandez also acknowledged in English that he was an illegal alien.

Dick transported Hernandez to the Ford County jail and contacted Robert Bohm of the Immigration and Naturalization Service (INS). Bohm spoke with Hernandez over the telephone in Spanish. Bohm's usual policy was to advise suspects of their Miranda rights before speaking with them; however, he could not remember whether Hernandez had been so advised. In the course of their conversation, Hernandez acknowledged to Bohm that he was in the United States illegally.

At trial, the government introduced a Spanish version of a Alcohol, Tobacco and Firearms (ATF) Form 4473 dated April 27, 1987. Pl. tr. ex. 3. The form recorded the sale of a Colt pistol, serial number RC44746, to one Zenon Hernandez. Id. Question 8(g) on the form asked in Spanish: "Are you an alien illegally in the United States?" (emphasis in original) to which Hernandez answered "no." Id. An expert witness testified that the buyer's signature on the Form 4473 matched Hernandez's signature. A computer printout from the INS indicated that Hernandez applied for amnesty to legalize his immigration status on February 5, 1988. Pl. tr. ex. 7.

II.

A suspect who has been advised of his rights against self-incrimination "may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); United States v. Hack, 782 F.2d 862, 866 (10th Cir.), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986). Whether a waiver was voluntary, knowing and intelligent "is a legal question requiring independent factual determination." Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985). We must therefore accept the district court's finding on this question unless clearly erroneous. See United States v. Chalan, 812 F.2d 1302, 1307-08 (10th Cir.1987).

In order for a suspect to waive his Miranda rights, two requirements must be met:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410 (1986); see also Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2046-47, 36 L.Ed.2d 854 (1973). Hernandez does not allege that his statements to Trooper Dick and Agent Bohm were involuntary. Rather, he claims that Valadez's translation of his Miranda rights was inadequate to enable him to intelligently waive them.

To determine whether a suspect's waiver of his Miranda rights was intelligent, we inquire whether the defendant knew that he did not have to speak to police and understood that statements provided to police could be used against him. United States v. Yunis, 859 F.2d 953, 964-65 (D.C.Cir.1988). A suspect need not, however, understand the tactical advantage of remaining silent in order to effectuate a valid waiver. Id. at 965. Although language barriers may inhibit a suspect's ability to knowingly and intelligently waive his Miranda rights, when a defendant is advised of his rights in his native tongue and claims to understand such rights, a valid waiver may be effectuated. See United States v. Boon San Chong, 829 F.2d 1572, 1574 (11th Cir.1987). The translation of a suspect's Miranda rights need not be a perfect one, so long as the defendant understands that he does not need to speak to police and that any statement he makes may be used against him. See, e.g., Yunis, 859 F.2d at 959 (grammatical errors in translated Miranda warning did not render warning constitutionally insufficient); Perri v. Director, Dep't of Corrections, 817 F.2d 448, 452-53 (7th Cir.) (Miranda warning administered in Italian by police officer with no formal training in Italian in dialect different from defendant's sufficient to effectuate valid waiver), cert. denied, 484 U.S. 843, 108 S.Ct. 135, 98 L.Ed.2d 92 (1987); United States v. Gonzales, 749 F.2d 1329, 1335 (9th Cir.1984) (waiver valid where defendant appeared to understand Miranda warning administered by officer in broken Spanish).

In the instant case, Trooper Dick relied upon Valadez to translate Hernandez's Miranda warning into Spanish. Notwithstanding some ambiguity in Valadez's translation, the record indicates that Hernandez's Miranda warning was sufficient to apprise him "both of the nature of the right being abandoned and the consequences of the decision to abandon it." See Moran, 475 U.S. at 421, 106 S.Ct. at 1140; rec. vol. II at 42-45. Moreover, the district court found that Hernandez's repeated communications with the trooper in English indicated that he did in fact understand English. See United States v. Abou-Saada, 785 F.2d 1, 10 (1st Cir.) (when suspect answered police officer's questions in English before they were translated, district court could find that he intelligently waived Miranda rights), cert. denied, 477 U.S. 908, 106 S.Ct. 3283, 91 L.Ed.2d 572 (1986). Based upon this record, we cannot say that the district court was clearly erroneous in finding that Hernandez knowingly and intelligently waived his Miranda rights. Consequently, the court properly admitted into evidence Hernandez's statements to Trooper Dick and Agent Bohm.

III.

A.

The Immigration Reform and Control Act of 1986, Pub.L. No. 99-603, 100 Stat. 3359 (1986), allows aliens who are in the United States illegally to apply for legalization of their immigration status either as temporary agricultural workers, 8 U.S.C. Sec. 1160, or, providing they resided continuously in the country since 1982, as permanent residents, 8 U.S.C. Sec. 1255a. Hernandez argues that the government was prohibited from introducing evidence that he applied for amnesty to prove that he was an illegal alien when he purchased the pistol. This issue presents a question of statutory interpretation subject to de novo review. United States v. Brian N., 900 F.2d 218, 220 (10th Cir.1990).

The record is unclear as to whether Hernandez sought amnesty as a temporary agricultural worker pursuant to Sec. 1160 or as a permanent resident under Sec. 1255a. Rec. vol. IV at 42. However, both sections of the Act contain identical language requiring that information furnished by illegal aliens on their amnesty applications...