U.S. v. Rojas-Tapia

• Decision Date: 11 April 2006
• Docket Number: No. 04-1846.,04-1846.
• Citation: 446 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Jesus ROJAS-TAPIA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

446 F.3d 1

UNITED STATES of America, Appellee, v. Jesus ROJAS-TAPIA, Defendant, Appellant.

No. 04-1846.

United States Court of Appeals, First Circuit.

Heard December 6, 2005.

Decided April 11, 2006.

Raúl S. Mariani-Franco, for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before BOUDIN, Chief Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

CYR, Senior Circuit Judge.

Jesus Rojas-Tapia appeals the conviction and sentence resulting from his participation in a conspiracy to commit airline piracy and his use of a semiautomatic firearm, contending that (i) the district court erred in denying his motion to suppress the inculpatory post-arrest statements he made to the police, and (ii) we must vacate the ensuing Guidelines sentence and remand for resentencing under the new "advisory" Guidelines regime prescribed in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm.

I BACKGROUND

On December 30, 2002, Rojas-Tapia and an associate hijacked a rented helicopter and forced the pilot, at gunpoint and on threat of death, to fly them to the state penitentiary in Ponce, Puerto Rico, where five inmates were waiting on the penitentiary's roof, one of whom was the defendant's brother, Jose. After the helicopter departed the penitentiary, it dropped all seven men in a rural area, where the defendants went into hiding. Following a massive police hunt, the defendant, his brother, and one of the prison escapees were arrested on January 2, 2003. All three were in possession of firearms. The police advised defendant of his Miranda rights, then transported him by police car to police headquarters. Several hours into this detention, while police were asking routine booking questions, Rojas-Tapia abruptly stated that he wanted to tell them about his participation in the hijacking. Although the police reminded Rojas-Tapia that he had the right to counsel and to remain silent, he proceeded to make a detailed inculpatory statement.

In due course, defendant and his associates were indicted on one count each of conspiring to commit aircraft piracy, 49 U.S.C. § 46502(a)(1), armed aircraft piracy, id., and use of a semiautomatic weapon during or in relation to a crime of violence, 18 U.S.C. § 924(c)(1). Defendant subsequently submitted a motion to determine his mental competency to stand trial. Following a hearing and a review of the Federal Detention Center (FDC) psychologist's evaluation, the district court found the defendant competent to stand trial.

Defendant also submitted a motion to suppress his post-arrest statement in which he had admitted participation in the planning and hijacking of the helicopter. The motion stated that the government could not demonstrate that his waiver of his Miranda rights had been knowing and voluntary, since the FDC psychologist concluded that the defendant had but a borderline intellectual capacity, hence could not have understood his legal rights or the consequences of their waiver. At an evidentiary hearing conducted on the suppression motion during the jury trial, Rojas-Tapia, orally and for the first time, raised another ground for the motion to suppress: that the police had coerced his statements by depriving him of food for approximately eight hours following his arrest. The district court denied the suppression motion, then admitted the Rojas-Tapia confession.

Following a seven-day trial, the jury convicted the defendant on all three counts. The district court thereafter imposed concurrent 365-month terms of imprisonment under Counts 1 and 2, as well as a term of 84 months on Count 3, to be served consecutively to the sentences imposed under Count 1 and Count 2. Defendant now appeals from his conviction, challenging the denial of his suppression motion, and from his sentence, arguing that the intervening Booker decision, which held that the Guidelines are advisory rather than mandatory, requires a remand for resentencing.

II DISCUSSION

A. The Motion to Suppress

The defendant contends that the district court erred in denying his motion to suppress the incriminating statements made to the police following his arrest, in that the government failed to establish that he knowingly and voluntarily waived his Miranda rights. Specifically, he asserts that the record evidence demonstrates that he lacked an adequate level of intellectual functioning and comprehension, and that the police coercively withheld food from him for up to eight hours following his arrest.

1. The Standard of Review

We review the denial of a motion to suppress under a bifurcated standard. With respect to determinations on matters of law, including whether the totality of the attendant circumstances demonstrate that the defendant's statement was knowing and voluntary, we review de novo, whereas subsidiary findings of fact are reviewed for clear error. See United States v. Marenghi, 109 F.3d 28, 31-32 (1st Cir. 1997).

2. The Alleged Post-Arrest Deprivation of Food

It is undisputed that the police administered the Miranda warnings — including the right to refrain from self-incrimination — on several occasions following Rojas-Tapia's January 2 arrest, both verbally and in writing, and that Rojas-Tapia told police that he understood the warnings. Thus, the sole question on appeal is whether Rojas-Tapia waived his Miranda rights.

A waiver of Miranda rights must be "voluntary" and "knowing":

[T]he relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.... [T]he waiver [also] must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (citation omitted); see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After assessing the totality of the circumstances attending a defendant's confession, see, e.g., 18 U.S.C. § 3501(b),¹ we will affirm the denial of a motion to suppress provided the government proved, by a mere preponderance of the evidence, that there was a valid waiver. See Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

First, Rojas-Tapia contends that the government failed to prove that his confession was "voluntary," because the record evidence demonstrates that the police failed to provide him food for up to eight hours after his arrest.

Among the totality of factors which may be material in determining the voluntariness of a confession is whether law enforcement officials subjected defendant to physically coercive punishment, such as an unreasonable deprivation of food or sleep. See Schneckloth v. Bustamonte, 412 U.S. 218, 220, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Gillaum, 372 F.3d 848, 856-57 (7th Cir.), cert. denied, 543 U.S. 969, 125 S.Ct. 427, 160 L.Ed.2d 339 (2004); e.g., Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967) (finding confession involuntary where, inter alia, defendant had been in custody for eight hours without food); Brooks v. Florida, 389 U.S. 413, 414-15, 88 S.Ct. 541, 19 L.Ed.2d 643 (1967) (same, statement obtained after suspect was deprived of adequate food and was detained naked in a small cell); Reck v. Pate, 367 U.S. 433, 441, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961) (same, statement obtained after depriving suspect of adequate food, sleep, and contact with family); Taylor v. Maddox, 366 F.3d 992, 1015 (9th Cir.) (same, statement by 16-year-old who was interrogated for three hours, and was given no food or water), cert. denied, 543 U.S. 1038, 125 S.Ct. 809, 160 L.Ed.2d 605 (2004). Plainly, one can envision circumstances in which such deprivations of basic physical necessities would undermine a defendant's will and ability to resist coercive police interrogation.

In the instant case, however, we need not determine in what particular circumstances a post-arrest deprivation of food would contribute to the coercion of a confession, since there is no clear error in the district court's determination that the government established, by a preponderance of the evidence, that Rojas-Tapia had been provided with food before his confession. See Marenghi, 109 F.3d at 31-32. The government adduced the eyewitness testimony of Police Agent Richard Rivera Cortes — one of the officers who interviewed Rojas-Tapia the day he was arrested — that Rojas-Tapia had received food prior to volunteering his confession:

Q: [Y]ou mentioned also food.

A: Yes, sir.

Q: Did you saw (sic) with your own eyes anyone giving food to Mr. Rojas-Tapia?

A: Yes, sir. Yes, sir, I did.

Q: At what time?

A: I believe it was four something, four forty five, something like that.

Q So, the food was given to Mr. Rojas-Tapia exactly before he was interviewed. That is your testimony.

A: Yes, sir.

Moreover, Agent Cortes testified that, far from being overborne or distressed by hunger, Rojas-Tapia consumed little of the food made available to him. Cf. United States v. Gamez, 301 F.3d 1138, 1145 (9th Cir.2002) (noting that defendant "was offered but declined a drink prior to each interrogation," and "never asked for food").² Rivera Cortes' unequivocal testimony was more than sufficient to satisfy the government's burden of proof. See United States v. Marshall, 348 F.3d 281, 284 (1st Cir.2003) (observing that we normally defer to the district court's resolution of witness...