U.S. v. Erving L., 97-2256

• Decision Date: 26 June 1998
• Docket Number: No. 97-2256,97-2256
• Citation: 147 F.3d 1240
• Parties: 98 CJ C.A.R. 3614 UNITED STATES of America, Plaintiff-Appellant, v. ERVING L. (a juvenile), Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1240

147 F.3d 1240

98 CJ C.A.R. 3614

UNITED STATES of America, Plaintiff-Appellant, v. ERVING L. (a juvenile), Defendant-Appellee.

No. 97-2256.

United States Court of Appeals, Tenth Circuit.

June 26, 1998.

Richard A. Friedman, Appellate Section, Criminal Division, Department of Justice, Washington, DC (John J. Kelly, United States Attorney, Sharon R. Kimball, Assistant United States Attorney, District of New Mexico, with him on the brief), for Plaintiff-Appellant.

Ann Steinmetz, Federal Public Defender, Albuquerque, NM (Judith A. Rosenstein, Assistant Federal Public Defender, Albuquerque, NM, on the brief), for Defendant-Appellee.

Before ANDERSON, McWILLIAMS, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

The United States brings this interlocutory appeal challenging a suppression order entered by the United States District Court for the District of New Mexico. The district court suppressed all inculpatory statements made by E.L., a thirteen-year-old Navajo juvenile, in response to questioning by law enforcement officers. The district court suppressed the statements on two grounds: (1) the officers elicited the statements in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (2) E.L.'s statements were not voluntarily made. Exercising jurisdiction pursuant to 18 U.S.C. § 3731, this court concludes that a reasonable thirteen-year-old in E.L.'s position would not have believed he was in custody and that the actions of the officers were not coercive so as to render E.L.'s confession involuntary. Accordingly, we reverse the district court's order of suppression and remand the case to the district court for further proceedings consistent with this opinion.

II. BACKGROUND

A. The Interview

On appeal from an order of suppression, this court accepts the district court's factual findings unless clearly erroneous and views the evidence in the light most favorable to the prevailing party. See United States v. Maden, 64 F.3d 1505, 1508 (10th Cir.1995). Viewed from that perspective, the facts surrounding E.L.'s statements to the officers are as follows.

In early July 1996, Navajo Nation criminal investigator Larry Etsitty received a report that an eleven-year-old girl had been sexually assaulted by her cousin, the defendant E.L. After receiving the report, Agent Etsitty talked with the girl, her mother, and hospital personnel. Based on these interviews, Agent Etsitty decided to interview E.L.

On July 18, 1996, Agent Etsitty and FBI Special Agent John Tanberg went to E.L.'s home to interview him. The officers arrived at the family's mobile home in plain clothes and in an unmarked car at about 3:00 p.m. They were greeted by E.L.'s father, who previously had been alerted of their purpose. The officers identified themselves and were invited into the home by the father. They were introduced to E.L.'s mother and to E.L. and all five sat down in the living room.

The officers explained they had received an accusation that E.L. sexually abused his cousin and asked for permission to talk to E.L. E.L.'s parents gave the requested permission. Initially, E.L. did not respond to the officers' questions. Instead, he sat in silence and began to cry. E.L.'s parents spoke to him in Navajo and told him that he should talk to the investigators. E.L.'s mother told him it would help to clear his conscience.

Agent Tanberg then explained to E.L. in English why the officers were there and that they wanted to hear his version of the story. E.L. did not respond. When Agent Tanberg handed E.L. a note pad and a pen and asked if he could write down his thoughts, E.L. just held the pad and pen in silence.

In response to E.L.'s continued silence, Agent Tanberg explained to E.L. that he was not in custody and that he was not going to be arrested after their discussion no matter what he told them. Agent Tanberg then asked E.L. to read aloud in English from an advice-of-rights form ¹ used by the FBI. After he finished reading the form aloud, the agents asked E.L. if there was anything in the form which he did not understand. He asked for an explanation of the word "advice" in the phrase, "You have the right to talk to a lawyer for advice before we ask you any questions." He also asked for an explanation of the word "coercion" in the phrase, "[N]o pressure or coercion of any kind has been used against me." Agent Tanberg explained the terms in English and Agent Etsitty, speaking in Navajo, went over the rights in general and the two terms in particular. Agent Etsitty used the Navajo word for "advice" to explain the meaning of that term, and E.L. said he understood. Agent Etsitty explained the idea of a lack of coercion by using the Navajo word for "not being forced." E.L. initialed those two words on the form to signify that he understood them. E.L.'s parents were asked if they had any questions about the rights. They did not. E.L. was asked if he understood his rights. He said that he did and he signed the waiver portion of the advice-of-rights form, with his parents signing as witnesses.

Agent Etsitty then explained that it was very important for E.L. to tell the truth and that the officers wanted to hear his side of the story. E.L. told them that, on the day in question, he and two of his cousins, a boy and a girl, were at their grandmother's house. E.L. recounted that the children played at a sand pit for several hours, that he prepared some rice for them to eat, that they resumed their play, and that they then went to his uncle's house.

When E.L. arrived at the point in his rendition placing him alone with his female cousin, he stated that he did not want to talk to the officers anymore and began to cry again. At that point, E.L.'s mother got up and walked over to him. She told him in Navajo that he should continue to cooperate with the investigation and that it would help him to clear his conscience. She further stated that if he did speak, "whatever [was] ailing him inside would come out" and he would feel better. She reassured him that it was "okay" for him to talk and cooperate with the investigators. The officers did not participate in the conversation or encourage the mother's action in any way.

E.L.'s mother then asked if he would feel more comfortable talking to the officers if she left the room. After E.L. responded in the affirmative, both parents left the room. Agent Tanberg moved next to E.L. in the place previously occupied by the mother. At that time, as E.L. recalled at the suppression hearing, he was "scared" and "wanted to go." He could not, however, identify what scared him.

Agent Etsitty asked E.L. to continue where he had left off. The officers did not further advise him of his rights or question him about his desire to talk with them. In response to Agent Etsitty's statement that he should continue, E.L. said that he and his two cousins were watching television when the other boy left to use an outhouse some distance away. E.L. told the officers that during the time they were alone, he stood behind the girl and touched her breasts, worked his hands down between her legs, and put his finger into her vagina. Although E.L. continued to cry as he related these events, he did not ask to stop the interview. The discussion with E.L. out of the presence of his parents lasted about five to ten minutes; the officers' visit to the home lasted no more than one hour.

B. The District Court Decision

The district court ruled from the bench that E.L.'s statements to the officers were not voluntarily and knowingly made and could not, therefore, be used against him at trial. In reaching this conclusion, the district court recited at length E.L.'s limited intellectual capacity and age. In particular, the district court noted that E.L.'s educational records placed him in a special education category of "borderline IQ." Furthermore, the district court concluded from observations in court that E.L. had only a minimal ability to understand what was occurring during the interview. Finally, the district court noted that E.L. was only thirteen at the time of the alleged incident and interview. Based on these factors, the district court concluded that E.L.'s "age combined with his academic deficiencies and his borderline IQ and my observations of his testimony here today persuade me that he simply did not understand his constitutional rights."

At the heart of the district court's conclusion that E.L.'s statements were not voluntarily made, however, is its conclusion that, without regard to whether E.L. was in custody, the officers were obligated to honor his indications that he wished to remain silent. The district court stated:

I think the issue that is novel is whether, if the Court were to find that the setting was not a custodial setting, what happens when a defendant invokes a right to remain silent? What obligation is there? The government's position is that there is an obligation to cease questioning, but if questioning--to cease questioning momentarily and not completely, and that's where I disagree. I think that once there is an invocation of one's right to remain silent, that the officer cannot simply rely, as was done here, on a mom's encouraging her son to speak, but has to speak to the defendant himself to ascertain at that point whether the defendant wishes to change his mind and to continue speaking to the officer. That's what was not done here, and quite frankly, that the area that I did some research on and could find no guidance.

I think that what I find so persuasive in this case is that [E.L.] said several times that he did not want to speak, and he was crying, and he is a child, and at that point, you know, the right to remain silent was unequivocally invoked, and we have Agent Etsitty basically saying, continue. That may be okay, it may not be. I mean, I wish there was some guidance, but my decision is that, in that context, [E.L.] did not...