U.S. v. Quiroz

• Decision Date: 14 February 1994
• Docket Number: No. 171,D,171
• Parties: UNITED STATES of America, Appellee, v. Oscar QUIROZ, Defendant-Appellant. ocket 93-1216. . Petition for Rehearing
• Court: U.S. Court of Appeals — Second Circuit

Page 489

22 F.3d 489

UNITED STATES of America, Appellee, v. Oscar QUIROZ, Defendant-Appellant.

No. 171, Docket 93-1216.

United States Court of Appeals Second Circuit.

Petition for Rehearing Feb. 14, 1994.

Decided April 20, 1994.

Susan Corkery, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty. for the E.D. of New York, Peter A. Norling, Asst. U.S. Atty., on the brief), for appellee.

Joel B. Rudin, New York City, for defendant-appellant.

Before: MESKILL, KEARSE, and WINTER, Circuit Judges.

Per Curiam:

In United States v. Quiroz, 13 F.3d 505 (2d Cir.1993), we vacated the conviction of Oscar Quiroz and remanded for a new trial on the ground that the district court had erred in admitting postarrest statements obtained from him in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The government petitions for rehearing on the ground that Quiroz had waived that argument because he failed to object in the district court to the recommendation of the magistrate judge that his motion to suppress the statements be denied. We grant the petition for rehearing only insofar as is necessary to correct the opinion to reflect accurately the proceedings below. In all other respects, the petition is denied.

I. BACKGROUND

A. Proceedings Prior to the Decision of the Appeal

Much of the background to this appeal is described in our initial opinion in this case, familiarity with which is assumed. Quiroz and his sister Nancy were indicted in connection with a plan to import and distribute cocaine. Both Quiroz and Nancy moved to suppress statements they had made to government agents following their respective arrests.

The motions were referred to a magistrate judge who recommended that they be denied.

The official transcript of the ensuing proceedings before the district judge reported that Quiroz's attorney objected to the magistrate's recommendation and that Nancy's attorney did not. The district judge did not issue a written opinion on Quiroz's suppression motion or make a ruling that was transcribed. The pertinent docket sheet entry stated that the district judge "affirm[ed] Mag. decision for reasons stated on the record."

Both defendants' postarrest statements were admitted at trial, and both defendants were convicted. Only Quiroz appealed.

On appeal, Quiroz was represented by new counsel, Joel B. Rudin. On April 29, 1993, according to Rudin's affidavit submitted in connection with the present petition, the government's trial attorney, Karen Straus, faxed to Rudin, at his request, the Miranda waiver forms that Quiroz had refused to sign following his arrest. On May 10, 1993, Rudin advised Straus that he intended to raise the Miranda issue on appeal. On May 14, Rudin filed his opening brief in this Court, arguing that Quiroz's constitutional rights had been violated by the admission at trial of statements obtained in violation of Miranda and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The government thereafter filed its brief, listing as counsel both Straus and two new attorneys, and addressing the merits of Quiroz's contention. The government argued that there had been no constitutional violation, and, alternatively, that the admission of the statements was harmless error. At no point in its brief did the government state that Quiroz had failed to object to the magistrate's recommendation or argue that he had waived his right to challenge the admission of the statements.

At oral argument, both sides addressed the merits of Quiroz's contention. Again, the government made no mention of Quiroz's failure to object to the magistrate's recommendation.

Thereafter, in the course of preparing our opinion on the appeal, the panel asked counsel to provide a copy of the transcript or written memorandum, if any, of the district judge's decision on Quiroz's suppression motion. We also quoted the docket entry's reference to the "reasons stated on the record" and asked counsel for their understanding as to whether that reference was to reasons stated by the district judge or to reasons stated by the magistrate judge. The attorneys responded jointly that the district judge's decision was not in writing and was not transcribed, and that "[p]resumably," the docket entry "refers ... to the 'statement of the magistrate judge in the transcript of the suppression hearing.' "

We eventually issued our opinion vacating Quiroz's conviction and remanding for a new trial on the ground that his postarrest statements should have been suppressed.

B. Postappeal Events

Following entry of this Court's opinion, the district judge alerted the parties to her recollection that only Nancy, and not Quiroz, had objected to the magistrate judge's recommendation. The court reporter was asked to review the audio tapes from which the official transcript had been prepared. The reporter complied and thereafter filed an affidavit stating that she had misattributed the statements of Nancy's attorney to the attorney for Quiroz, and vice versa. The corrected transcript showed that,...