U.S. v. Gonzalez-Mares

• Decision Date: 01 November 1984
• Docket Number: No. 84-5026,D,GONZALEZ-MARE,84-5026
• Citation: 752 F.2d 1485
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jessieefendant-Appellant. C.A.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1485

752 F.2d 1485

UNITED STATES of America, Plaintiff-Appellee, v. Jessie GONZALEZ-MARES, Defendant-Appellant.

C.A. No. 84-5026.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 7, 1984.

Resubmitted Nov. 1, 1984 ^*.

Decided Feb. 7, 1985.

As Amended April 23, 1985.

Edward C. Weiner, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Craig E. Weinerman, San Diego, Cal., for defendant-appellant.

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

Before GOODWIN and TANG, Circuit Judges, and RYMER, ^** District Judge.

RYMER, District Judge:

Jessie Gonzalez-Mares appeals her conviction for obstruction of justice [18 U.S.C. Sec. 1503] and making false statements to a United States Probation Officer [18 U.S.C. Sec. 1001]. Appellant committed these acts in connection with an earlier criminal prosecution for illegal transportation of aliens.

FACTS

On August 2, 1983, United States Border Patrol Agents arrested Gonzalez-Mares in El Centro, California, and charged her with illegal transportation of aliens [8 U.S.C. Sec. 1324] and aiding and abetting illegal entry of aliens [8 U.S.C. Sec. 1325 and 18 U.S.C. Sec. 2]. During the morning of August 3, 1983, appellant met with counsel and signed a form entitled "Consent to Proceed Before United States Magistrate in a Petty Offense Case." ¹

While Gonzalez-Mares met with counsel, United States Probation Officer Stanley Winters screened the petty offense cases and determined that the appellant was a likely candidate to participate in the oral presentence report procedure. Winters then sought to interview the appellant in order to prepare an oral presentence report which would be presented to the magistrate immediately following appellant's guilty plea. Winters asked and received permission from Gonzalez-Mares' attorney to interview her. Winters did not advise her counsel that he could be present at the interview.

Winters told Gonzalez-Mares that she appeared to be a good candidate for probation and asked whether she had any objections Following the interview with Winters, appellant appeared before the magistrate and pled guilty to a misdemeanor. At the magistrate's request, Winters presented an oral presentence report. He advised the court that the appellant had no juvenile or adult record and recommended that the appellant be placed on probation. Before sentencing, the magistrate asked appellant, who was under oath, if she had ever been in trouble before. She responded negatively. Appellant was placed on unsupervised probation.

to being interviewed. Appellant stated that she had none. Winters did not advise Gonzalez-Mares of her Miranda rights prior to the interview. He did tell her that if she made a false statement to him she could be prosecuted or suffer other consequences if she was already on probation. In direct response to Winters' questions, appellant denied ever having used other names in the past and denied having a prior criminal record.

The following day, Winters did a thorough record check and discovered that the appellant had provided false information regarding her prior record and prior use of different names. Winters determined that the appellant was on parole under a different name.

Gonzalez-Mares was indicted for obstructing the due administration of justice by providing false and inaccurate information both to the United States Probation Officer and to the court in an effort to improperly influence the court to grant her probation in violation of 18 U.S.C. Sec. 1503. ² The second count of the indictment charged appellant with making false statements to the probation officer in violation of 18 U.S.C. Sec. 1001 ³ by stating that she had never been arrested for other than traffic offenses and that she never used aliases. Following a court trial, the district court found appellant guilty on both counts of the indictment. On appeal, appellant urges that the district court erred in denying her pretrial motion to suppress evidence of her responses to the probation officer and her motion for acquittal on both counts of the indictment.

DISCUSSION

A. The district court did not err in denying appellant's motion to suppress statements made to a probation officer at a pre-plea interview.

Appellant contends that the pre-plea interview conducted by the probation officer constituted a custodial interrogation and that she was entitled to the protections offered by a Miranda warning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The government concedes Our cases have held that the determination of whether interrogation occurred is essentially factual and is reviewed under the clearly erroneous standard. United States v. Crisco, 725 F.2d 1228 (9th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984); United States v. Booth, 669 F.2d 1231, 1237-38 (9th Cir.1981). We note, however, that this court's en banc decision in United States v. McConney, 728 F.2d 1195 (9th Cir.1984), casts doubt upon the application of the clearly erroneous standard in these cases. We need not reach this issue in the present case because the district court did not err under either standard.

that she was in custody but asserts that the interview does not amount to "interrogation."

Not every question posed in a custodial setting is equivalent to "interrogation" requiring Miranda warnings. United States v. Crisco, supra, 725 F.2d at 1230; United States v. Mata-Abundiz, 717 F.2d 1277, 1279 (9th Cir.1983); United States v. Booth, supra, 669 F.2d at 1237. The test is whether "under all of the circumstances involved in a given case, the questions are 'reasonably likely to elicit an incriminating response from the suspect.' " United States v. Booth, supra, 669 F.2d at 1237; United States v. Mata-Abundiz, supra, 717 F.2d at 1279-80. The test is objective. Id. at 1280. The subjective intent of the agent is relevant but not conclusive. Id. The relationship of the question asked to the crime suspected is highly relevant. Id.

The questions asked by the probation officer--whether appellant ever used any other names and whether she had a prior criminal record--were not directly related to the facts of the crime with which appellant was then charged. Compare United States v. Mata-Abundiz, supra, 717 F.2d 1277 (9th Cir.1983) (INS investigator's question about defendant's citizenship directly related to crime (possession of firearm by illegal alien) with which defendant was later charged; investigator had reason to suspect defendant of committing crime charged because defendant in custody on state charges for carrying concealed weapon) with United States v. Booth, supra, 669 F.2d 1231, 1238 (police officer's question to suspect about any prior arrests is interrogation). Moreover, unlike the typical Miranda case, appellant's responses are not being used to help prove prior criminal activity. In this case, the false responses themselves constitute the prohibited conduct.

In denying the motion to suppress, the district court relied on Baumann v. United States, 692 F.2d 565 (9th Cir.1982), which held that "a routine presentence interview of an individual convicted of a noncapital federal offense is not, ... a critical stage of the proceeding in which counsel's presence or advice, is necessary to protect the defendant's right to a fair trial." 692 F.2d at 578. The Baumann court rejected the argument that a convicted defendant is entitled to Miranda warnings and the presence of counsel at a presentence interview because the policies that support Miranda v. Arizona would not be served in the context of post-conviction interviews where the information is given to the district judge for sentencing purposes only.

Appellant attempts to distinguish Baumann on the ground that Baumann was interviewed after his conviction in contrast to this case where appellant was interviewed prior to her guilty plea. However, that distinction is not convincing on the facts of this case because the questions asked were not likely to elicit incriminatory responses.

Appellant argues that the probation officer's questions were intended to discover whether she was already on probation or parole and that admitting the truth might cause the government to revoke her parole. However, in general, a probationer is not entitled to invoke the privilege against self-incrimination in response to questions about his probation status. See e.g., Minnesota v. Murphy, --- U.S. ----, 104 S.Ct. 1136, 1147 n. 7, 79 L.Ed.2d 409 Appellant also contends that the probation officer would have communicated a truthful response to his questions to the government for the purpose of influencing the prosecutor to withdraw the plea offer and prosecute appellant on the felony. Although the probation officer testified that he would have communicated such information, the testimony is sheer speculation. It is also a matter of speculation on how the government would have responded to receiving such information. ⁴

(1984) (regardless of whether answer to question to probationer about violation of terms of parole is compelled by threat of revocation, there can be no valid claim of the privilege on the ground that the information sought can be used in revocation proceedings). The threat of probation proceedings are not considered criminal proceedings for purposes of invoking the Fifth Amendment privilege. Id.

In this case, appellant's responses were only used for purposes of sentencing. Thus, the case is controlled by Baumann. False answers to proper questions asked after conviction would ordinarily be admissible in a prosecution for giving false statements. ⁵ The fact that the questions were asked prior to the plea should not change the result where the answers were not used to incriminate the appellant on the underlying offense (illegal transportation of aliens) and where potential use of the responses to affect appellant's parole status is not...