U.S. v. Garibay

Decision Date05 May 1998
Docket NumberNo. 96-50606,96-50606
Citation143 F.3d 534
Parties98 Cal. Daily Op. Serv. 3361, 98 Daily Journal D.A.R. 4667 UNITED STATES of America, Plaintiff-Appellee, v. Jose Rosario GARIBAY, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

William W. Brown, Federal Defenders of San Diego, Inc., San Diego, California, for defendant-appellant.

G. David Hackney, Assistant United States Attorney, San Diego, California, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Judith N. Keep, District Judge, Presiding. D.C. No. CR-96-00832-JNK.

Before: PREGERSON and HAWKINS, Circuit Judges, and WEINER, District Judge. *

PREGERSON, Circuit Judge:

Jose Rosario Garibay, Jr. appeals his convictions by a jury for importing marijuana in violation of 21 U.S.C. §§ 952 and 960 and for possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Garibay asserts that in denying his motion to suppress the district court erred (1) in finding that he had waived his Miranda rights before making inculpatory statements to United States Customs Agents; and (2) in denying his request for a downward departure for acceptance of responsibility.

In reviewing the totality of circumstances in which Garibay was interrogated, it is clear that he was not aware of the nature of the constitutional rights he was waiving, and that the district court clearly erred in finding that he knowingly and intelligently waived his Miranda rights. Accordingly, we hold that the district court erred when it failed to suppress Garibay's inculpatory statements and allowed them to go to the jury. We also hold that absent Garibay's incriminating statements obtained in violation of his Miranda rights, the evidence before the jury was insufficient to support his convictions. Therefore, we reverse and remand for proceedings consistent with this opinion. 1


On December 15, 1995, Jose Rosario Garibay, Jr. attempted to drive into the United States across the U.S.-Mexico border at the Calexico Port-of-Entry. A United States Customs Inspector asked Garibay, in Spanish, to open the trunk of the vehicle. Detecting a silicone odor emanating from the trunk, the Inspector directed Garibay to the Secondary Inspection Lot. A closer inspection of the vehicle revealed a depth-discrepancy in the trunk. The trunk was drilled. The drill bit came out with a green leafy substance that field-tested positive for marijuana. Fifty-five packages of marijuana, weighing approximately 138.65 pounds were removed from beneath the trunk floor. Garibay was arrested and placed in a holding cell.

About an hour later, United States Customs Agents Joseph William Burke and Jennifer Holden questioned Garibay in English. Agent Burke asked Garibay in English if he understood English, to which Garibay responded "yes." Agent Burke then orally read in English Garibay's constitutional rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630-31, 16 L.Ed.2d 694 (1966). Garibay indicated that he understood. During the interrogation, Garibay made incriminating statements. 2 He moved to suppress those statements on the ground that he did not understand the nature of the rights he was waiving because of his limited-English skills and low mental capacity. The district court held an evidentiary hearing, and found that the waiver was knowing and intelligent. Garibay proceeded to trial and was convicted on all charges.

A. Waiver of Miranda Rights
1. Standard of Review

We review for clear error a district court's finding that a defendant knowingly and intelligently waived his Miranda rights. See United States v. Cazares, 121 F.3d 1241, 1243 (9th Cir.1997).

2. Requirements of a Valid Waiver

For inculpatory statements made by a defendant during custodial interrogation to be admissible in evidence, the defendant's "waiver of Miranda rights must be voluntary, knowing, and intelligent." United States v. Binder, 769 F.2d 595, 599 (9th Cir.1985) (citing Miranda, 384 U.S. at 479, 86 S.Ct. at 1630-31). A valid waiver of Miranda rights depends upon the "totality of the circumstances including the background, experience, and conduct of defendant." United States v. Bernard S., 795 F.2d 749, 751 (9th Cir.1986).

There is a presumption against waiver. See id. at 752 (citing North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1966)). The prosecution bears the burden of proving by a preponderance of the evidence that a defendant knowingly and intelligently waived his Miranda rights. See Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986). To satisfy this burden, the prosecution must introduce sufficient evidence to establish that under the "totality of the circumstances," the defendant was aware 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, 1141, 89 L.Ed.2d 410 (1986). The government's burden to make such a showing "is great," and the court will "indulge every reasonable presumption against waiver of fundamental constitutional rights." United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir.1984) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).

3. Analysis

Garibay challenges the finding that he validly waived his Miranda rights because he was not aware of the nature of the constitutional rights he was abandoning. Specifically, Garibay contends that he did not understand Agent Burke's recitation of his rights in English because his primary language is Spanish and he has a low verbal IQ. Upon review of the record, we conclude that the prosecution did not meet its burden of proving that Garibay knowingly and intelligently waived his Miranda rights. 3 See Connelly, 479 U.S. at 168, 107 S.Ct. at 522.

In determining whether a defendant knowingly and intelligently waived his Miranda rights, we consider, as one factor, any language difficulties encountered by the defendant during custodial interrogation. See United States v. Heredia-Fernandez, 756 F.2d 1412, 1415 (9th Cir.1985) (holding that "language difficulties may impair the ability of a person in custody to waive [his Miranda ] rights in a free and aware manner"). In finding that Garibay was proficient in English, the district court relied on the following: (1) Garibay allegedly declined the agents' offer to be questioned in Spanish; and (2) Garibay attended high school in California and opted for an English-only curriculum. But a review of the record reveals that the district court incorrectly stated the facts supporting its conclusion and, as a result, clearly erred in concluding that Garibay's English-language skills were sufficient for him to understand and waive his constitutional rights.

First, contrary to the district court's conclusion, Agent Burke did not offer Garibay the option of conducting the interrogation in Spanish, nor did Garibay decline such an offer. 4 Rather, Agent Burke questioned Garibay in English and assumed that Garibay was sufficiently proficient in English to understand and waive his Miranda rights without the assistance of a Spanish-speaking officer. 5 Agent Burke also admitted that he had to rephrase questions when Garibay did not seem to comprehend what was said to him. Although Spanish-speaking agents were available at the time of Garibay's arrest and custodial interrogation, Burke did not enlist those agents to assist him in questioning Garibay.

Second, the record clearly indicates that Garibay's primary language is Spanish and he understands only a few things in English. Garibay attended a U.S. high school where he received English instruction and received D+ grades in eleventh and twelfth grade English. These grades do not support a finding that he is sufficiently proficient in English to have waived his Miranda rights. Garibay did not graduate from high school. According to the presentence report, Garibay received the passing grades in English because those classes were taught using Spanish. Moreover, a probation officer reported that several independent sources in the community told him that "they did not believe he [Garibay] could speak English except for a few words." In addition, with the exception of Agent Burke, every witness at the suppression hearing testified that at Garibay's request they would always communicate with him in Spanish. These witnesses include Garibay's former high school counselor, Garibay's former football coach, the clinical psychologist who examined Garibay, and the probation officer who prepared Garibay's pre-sentence report.

Agent Burke, however, testified that Garibay indicated that he understood English. But Garibay's former high school football coach testified that when under stress and interacting with persons of authority, Garibay often claimed to understand English and gave the appearance of comprehending English, when in fact he did not understand what was being said to him. A fair reading of the record does not support a finding that Garibay understood his constitutional rights to remain silent and to have the assistance of counsel. Nor does the record support a finding that Garibay understood that he had the option to knowingly and intelligently waive those rights.

A defendant's mental capacity directly bears upon the question whether he understood the meaning of his Miranda rights and the significance of waiving his constitutional rights. See Derrick v. Peterson, 924 F.2d 813, 817-824 (9th Cir.1990); United States v. Glover, 596 F.2d 857, 865 (9th Cir.1979). It is undisputed that Garibay's IQ is borderline retarded and that he has difficulty understanding the English language. 6 Additionally, the pre-sentence report confirmed Garibay's inability to understand oral instructions. 7 Without these skills, Garibay could not have...

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