U.S. v. Heredia-Fernandez

• Decision Date: 02 April 1985
• Docket Number: HEREDIA-FERNANDE,D,Nos. 84-5137,s. 84-5137
• Citation: 756 F.2d 1412
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guadalupe Javierefendant-Appellant. /5029.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1412

756 F.2d 1412

UNITED STATES of America, Plaintiff-Appellee, v. Guadalupe Javier HEREDIA-FERNANDEZ, Defendant-Appellant.

Nos. 84-5137/5029.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1984.

Decided April 2, 1985.

Pat Swan, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Kenneth D. Noel, San Diego, Cal., for defendant-appellant.

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

Before NELSON, BOOCHEVER, and REINHARDT, Circuit Judges.

NELSON, Circuit Judge:

Guadalupe Javier Heredia-Fernandez ("Heredia") appeals from his misdemeanor conviction for entering the United States illegally, in violation of 8 U.S.C. Sec. 1325, and felony conviction for entering the United States illegally after having been deported, in violation of 8 U.S.C. Sec. 1326. He Heredia also appeals from an order of the district court which ruled on his Fed.R.Crim.P. 35 motion to correct an illegal sentence. We find no error in the course followed by the district court and no illegality in the resulting sentence, and consequently affirm the ruling of the district court.

contends on appeal that the district court erroneously ruled that his confessional statements were voluntary and admissible into evidence, and that in the hearing on that issue the district court impermissibly denied his counsel an opportunity for argument after the presentation of evidence. Neither of these objections has merit, and so we affirm the convictions.

FACTUAL AND PROCEDURAL BACKGROUND

On October 22, 1983, during his daily check of local jails for suspected illegal aliens, Border Patrol Agent Curtis Shute came upon appellant Heredia in Riverside County Jail. After transporting Heredia to the Indio Border Patrol Station, Agent Shute handed him a form on which appeared, written in Spanish, a statement of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The form also contained a printed waiver, which provided (as translated into English):

I've read the declaration of my rights and understand my rights. I'm ready to give a declaration and answer questions. For the time being I do not desire an attorney. I understand what I am doing. No one has made promises [ ] or granted any favors.

Heredia was asked to read this form, after which he stated that he understood his rights. Although the form was in Spanish, and Heredia apparently could speak Spanish, the conversation between Agent Shute and Heredia took place in English. When asked whether he was willing to sign the waiver, Heredia responded by signing the document. He then told Agent Shute that he had last entered the United States in July 1982, near Calexico, California.

Three days later, Heredia was again transported to the Indio station for questioning, this time by Border Patrol Agent James Upson. Agent Upson reminded Heredia that he had already signed the Miranda form. Heredia stated, in response to Upson's questions, that he still remembered and understood his rights, and indicated that he did not need the Miranda warnings to be read to him. Heredia informed Agent Upson that he was a citizen of Mexico and that he had last entered the United States by "jumping the line" near Calexico on July 17, 1982.

Heredia had been lawfully deported to Mexico on July 15, 1982, shortly prior to his illegal reentry.

He was subsequently indicted by a grand jury, in December, 1983, on two counts: (1) that he "did knowingly and unlawfully enter the United States ... at a ... time and place ... other than as designated by immigration officials of the United States ...," in violation of 8 U.S.C. Sec. 1325 ¹; and (2) that he unlawfully entered the United States after having been arrested and deported, in violation of 8 U.S.C. Sec. 1326. ²

After Heredia's jury trial commenced, a hearing was held by the district court pursuant to 18 U.S.C. Sec. 3501, to determine whether Heredia's confessions to Agents Shute and Upson were made voluntarily. Following the presentation of evidence at that hearing, the district court denied a request by Heredia's counsel "briefly to be heard on the issues," and ruled that the confessions had been voluntary.

The trial resumed, and on January 12, 1984, the jury returned a verdict finding Heredia guilty of the lesser included misdemeanor charge of illegal entry on count one, and guilty of the felony of illegal reentry after being deported, as charged in count two.

On February 13, 1984, judgment was entered and Heredia was sentenced to concurrent terms of imprisonment of six months on count one and two years on count two. He filed a notice of appeal the next day.

About 2 1/2 months later, on April 25, 1984, after Heredia had been in federal custody for a total of approximately six months, he filed a motion pursuant to Fed.R.Crim.P. 35 to correct an illegal sentence. On June 11, following a hearing, the district court entered an order vacating the six-month term on count one but not vacating the two-year term on count two. On the following day, Heredia filed his notice of appeal from this final order.

ISSUES PRESENTED

1. Did the district court commit clear error in finding, at the close of the voluntariness hearing, that Heredia's confessions were voluntary?

2. Was Heredia deprived of assistance of counsel or due process of law by virtue of the district court's decision not to hear argument of counsel following the presentation of evidence in the voluntariness hearing?

3. Did the district court improperly rule on Heredia's Fed.R.Crim.P. 35 motion for the vacating of an illegal sentence?

A. Did the district court impermissibly modify the original sentence by vacating the shorter, six-month concurrent term despite the fact that Heredia had already been in custody for six months?

B. Does the final result of this modification constitute an illegal sentence?

DISCUSSION

I. VOLUNTARINESS OF HEREDIA'S CONFESSIONS

After conducting the voluntariness hearing, at which Border Patrol Agents Shute and Upson both testified, the district court ruled that Heredia's incriminating statements made to them had been voluntary. The district court's ruling finds more than ample support in the record.

Voluntariness must be established by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972); U.S. v. O'Looney, 544 F.2d 385, 389 (9th Cir.), cert. denied, 429 U.S. 1023, 97 S.Ct. 642, 50 L.Ed.2d 625 (1976). One precondition for a voluntary custodial confession is a voluntary waiver of Miranda rights, and language difficulties may impair the ability of a person in custody to waive these rights in a free and aware manner. See United States v. Gonzales, 749 F.2d 1329, 1335-36 (9th Cir.1984); United States v. Martinez, 588 F.2d 1227, 1235 (9th Cir.1978).

All the evidence introduced during the hearing tended to show that Heredia knowingly and intelligently waived his Miranda rights and offered his inculpatory statements voluntarily. Heredia read the form describing his Miranda rights and claimed to understand these rights, subsequently signing the waiver when asked if he was willing to do so. He later said he remembered and still understood his rights Heredia offers two specious arguments in support of his contention that the evidence of voluntariness was insufficient. First, he makes the philosophical argument that Agent Shute's testimony could not establish that the Miranda form was in fact read by Heredia because "it is impossible to testify that the person actually read the document." By the same token, however, it would likewise be impossible to attest that someone was in fear or pain, or that a person understood what he was saying; yet the abstract plausibility of such epistemological skepticism does not justify actual doubts in either everyday life or the law which governs it. See L. Wittgenstein, Philosophical Investigations paragraphs 303, 246-50, 84 (3d ed.). Second, Heredia insists that "[u]nanswered is the question as to the ability of defendant to read Spanish," the language in which the Miranda form was written, because conversations between Heredia and the Agents took place in English. But surely Heredia's statements in English--a language in which he clearly was competent--that he understood the Spanish document, were probative of his ability to understand Spanish as well. Neither of Heredia's arguments has merit.

and indicated that he did not wish to have them read to him. He appeared to understand all that was taking place. Moreover, Heredia had been arrested approximately 15 times in the preceding eight to ten years, and so might fairly have been presumed to be familiar with Miranda rights procedures.

II. THE DISTRICT COURT'S REFUSAL TO PERMIT ARGUMENT BY DEFENSE COUNSEL AT THE CLOSE OF THE VOLUNTARINESS HEARING

Both sides were offered the opportunity to present evidence during the voluntariness hearing. The prosecution offered the testimony of the two Border Patrol Agents, each of whom was cross-examined by Heredia's counsel. No witnesses were called on behalf of Heredia. Following the presentation of evidence, the district court denied the request of Heredia's counsel for an opportunity to argue the issue orally before the bench. Heredia now contends that this denial undermined his rights to effective assistance of counsel and due process of law. We find that the district court committed no reversible error.

As a preliminary matter, Heredia is not properly alleging ineffective assistance of his counsel, who he argues "cannot be faulted" but, rather, error on the part of the district judge. We have never viewed such allegations as supplying the necessary foundation for an ineffective assistance of counsel claim, and no not do so now.

Nonetheless, Heredia did possess a constitutional right under the Fifth Amendment's due process clause to have "a fair hearing and a reliable determination on the issue of...