U.S. v. Baez-Acuna

• Decision Date: 26 April 1995
• Docket Number: BAEZ-ACUN,No. 94-6033,D,94-6033
• Citation: 54 F.3d 634
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ibrahimefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 634

54 F.3d 634

UNITED STATES of America, Plaintiff-Appellee, v. Ibrahim BAEZ-ACUNA, Defendant-Appellant.

No. 94-6033.

United States Court of Appeals Tenth Circuit.

April 26, 1995.

June E. Tyhurst, Asst. Federal Public Defender, Oklahoma City, OK, for defendant/appellant.

M. Jay Farber, Asst. U.S. Atty., Oklahoma City, OK, for plaintiff/appellee.

Before SEYMOUR, Chief Judge, MOORE, and HENRY, Circuit Judges.

SEYMOUR, Chief Judge.

On August 17, 1993, a federal grand jury indicted Ibrahim Baez-Acuna for drug and drug-related violations. Mr. Baez-Acuna subsequently filed a motion to suppress statements allegedly taken in violation of his Sixth Amendment rights, which the district court denied. Mr. Baez-Acuna then entered a conditional plea of guilty to a superseding indictment which alleged multiple violations of 21 U.S.C. Secs. 841(a)(1), 846 and 18 U.S.C. Sec. 1952(a)(3). During sentencing, the court enhanced Mr. Baez-Acuna's base offense level by two points for his role in the offense pursuant to U.S.S.G. Sec. 3B1.1(c). Mr. Baez-Acuna appeals, alleging Sixth Amendment and Sentencing Guideline violations. We affirm.

I.

In early 1992, Agent Matt Lotspeich, of the FBI's organized crime and drug squad, began investigating Mr. Baez-Acuna for participation in the cocaine conspiracy which is the subject of this federal prosecution. Officer Mark Wood, of the Oklahoma City Police Department, assisted Agent Lotspeich with his investigation. Unbeknownst to Agent Lotspeich or Officer Wood, an undercover Drug Enforcement Agency (DEA) agent, Frank Moreno, made a controlled buy from Mr. Baez-Acuna in September 1992. On February 27, 1993, the state filed charges against Mr. Baez-Acuna for this drug transaction, at which time a warrant was issued for his arrest. The authorities did not arrest Mr. Baez-Acuna, however, until April 4.

Through a series of informants, including Mr. Baez-Acuna's common-law wife, Debra Guerrero, Officer Wood and Agent Lotspeich learned of Mr. Baez-Acuna's arrest and incarceration, and they arranged to speak with him on April 6. Officer Wood, Ms. Guerrero, and other informants began their meeting before Agent Lotspeich arrived. Officer Wood read the Miranda warnings in English, and Mr. Baez-Acuna, who appeared to understand the content of the warnings, signed a waiver of his right to counsel. Before beginning the interview, Officer Wood asked Mr. Baez-Acuna whether he was represented by an attorney. Mr. Baez-Acuna responded that although he retained an attorney for an ongoing state prosecution, he had no attorney in the instant case. Sup.Hrg.Tr. at 65. Officer Wood then interviewed Mr. Baez-Acuna about his cocaine sources and the identities of his cohorts.

Agent Lotspeich arrived approximately one hour after the interview began. Soon thereafter, a bilingual FBI agent arrived and read the Miranda warnings in Spanish, and Mr. Baez-Acuna executed another waiver. Mr. Baez-Acuna also told Agent Lotspeich that he did not have an attorney. Id. at 36. Before questioning Mr. Baez-Acuna, Agent Lotspeich emphasized that the interview would not concern the state charges for which he was in jail, but rather federal charges that would likely be filed at some later date. Id. at 17. Mr. Baez-Acuna made incriminating statements during this interview.

The authorities released Mr. Baez-Acuna following these interviews. Soon thereafter, DEA Agent Moreno contacted him and scheduled a formal interview on April 8. Before commencing the interview, Agent Moreno asked if Mr. Baez-Acuna was represented by an attorney, and he responded that he was not. Id. at 76. Agent Moreno then questioned him, ultimately arranging for Mr. Baez-Acuna to become a DEA informant.

In January 1993, before the state filed charges for the 1992 controlled buy, the Oklahoma City police stopped Mr. Baez-Acuna for a routine traffic violation. During the course of the stop, the officers discovered cocaine. They arrested Mr. Baez-Acuna, and the Oklahoma City District Attorney's office filed charges in state court. Mr. Baez-Acuna retained an attorney, Don Easter, to represent him in this matter. He waived a preliminary hearing which was originally scheduled for mid-February 1993. Mr. Easter remains Mr. Baez-Acuna's lawyer for the 1993 traffic stop charges.

Mr. Baez-Acuna did not retain an attorney for the 1992 controlled buy charge until approximately April 20, 1993, almost two weeks after the April 6 and 8 interviews. At that time, he retained Mr. Easter, who was already representing him for the 1993 traffic stop. Mr. Easter testified at the suppression hearing that he had no knowledge of the 1992 controlled buy charges or the resulting April 1993 arrest at the time of the April 6 and 8 interviews. Sup.Hrg.Tr. at 107. Mr. Baez-Acuna also testified that he did not contact Mr. Easter regarding the interviews until several weeks later. Id. at 147-48.

In August 1993, a grand jury in the Western District of Oklahoma indicted Mr. Baez-Acuna for multiple drug and drug related violations. He filed a motion to suppress the statements made during the April 6 and 8 interviews on the grounds that he had been denied his Sixth Amendment right to counsel. Relying on McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), the district court found that Mr. Baez-Acuna had invoked his Sixth Amendment right to counsel, which is offense-specific, only as to the 1993 traffic stop charge. United States v. Baez-Acuna, No. CR-93-171-C, slip op. at 4 (W.D.Okla. Oct. 29, 1993). The court further found that the 1993 traffic stop was unrelated to the 1992 controlled buy or the ongoing FBI investigation. Id. The court concluded that Mr. Baez-Acuna's right-to-counsel waivers were valid and that the April 6 interview, which focused exclusively on the ongoing FBI investigation, did not violate the Sixth Amendment. It therefore denied the motion to suppress. ¹ The district court also addressed sua sponte a Fifth Amendment argument that Mr. Baez-Acuna, because of his limited understanding of the English language, did not adequately understand the implications of the waivers. The court found, however, that Mr. Baez-Acuna's testimony regarding his limited understanding of the English language was not credible, concluding that his Fifth Amendment rights were therefore not violated. Mr. Baez-Acuna does not appeal the district court's holding as it relates to the Fifth Amendment.

Mr. Baez-Acuna subsequently entered a conditional plea of guilty to one count of the superseding indictment, conspiracy to possess cocaine with intent to distribute. At the sentencing hearing, several witnesses described the roles that members of the drug conspiracy played. Following the testimony, the court held that Mr. Baez-Acuna was a manager of a criminal activity subjecting his base offense level to a two-point enhancement pursuant to U.S.S.G. Sec. 3B1.1(c) and sentenced Mr. Baez-Acuna to 151 months imprisonment, 5 years supervised release, and a $50.00 special assessment.

Mr. Baez-Acuna appeals, arguing that the district court erred in denying the motion to suppress statements made in violation of his Sixth Amendment rights and by enhancing his base offense level pursuant to U.S.S.G. Sec. 3B1.1(c).

II.

While the target of a federal investigation, Mr. Baez-Acuna was arrested on at least two separate occasions. The first, in January 1993, resulted from a traffic stop during which the authorities discovered cocaine. The second, on April 4, 1993, stemmed from Mr. Baez-Acuna's participation in a controlled drug buy in September 1992. Both arrests resulted in the filing of state charges. Although Mr. Baez-Acuna had retained Mr. Easter for matters relating to the 1993 traffic stop, he explicitly waived his right to counsel on April 6, answering Officer Wood's and Agent Lotspeich's questions regarding the federal investigation. He also told Agent Moreno on April 8 that he was not represented by counsel, and then answered questions.

Mr. Baez-Acuna contends that the government violated his Sixth Amendment rights by interviewing him April 6 and 8 outside the presence of counsel when counsel had already been retained for the 1993 traffic stop charge. Similarly, Mr. Baez-Acuna argues that although he waived his right to counsel, the district court should have invalidated these waivers because his Sixth Amendment rights in the instant case had attached and had been invoked. When reviewing a denial of a motion to suppress statements, we review legal conclusions de novo and factual findings under a clearly erroneous standard. See United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990).

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Sixth Amendment right to counsel attaches " 'at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' " United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972)). Once Sixth Amendment rights attach and the defendant properly invokes these rights by retaining or requesting counsel, subsequent waivers are deemed ineffective. Michigan v. Jackson, 475 U.S. 625, 635-36, 106 S.Ct. 1404, 1410-11, 89 L.Ed.2d 631 (1986). The Supreme Court recently circumscribed this framework by holding that Sixth Amendment rights are offense-specific. McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991). In other words, the Sixth Amendment "cannot be invoked once for all future prosecutions," and the Michigan v. Jackson effect of invalidating subsequent waivers only applies if the waiver pertains to the charge for which the defendant initially invoked the Sixth Amendment. Id...