United States v. Oquendo-Rivas

• Decision Date: 18 April 2014
• Docket Number: No. 11–2260.,11–2260.
• Citation: 750 F.3d 12
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. David OQUENDO–RIVAS, Defendant, Appellant.

750 F.3d 12

UNITED STATES of America, Appellee,

v.David OQUENDO–RIVAS, Defendant, Appellant.

No. 11–2260.

United States Court of Appeals, First Circuit.

April 18, 2014.

Anita Hill–Adames and Anita Hill Law Office, on brief for appellant.

John A. Mathews II, Assistant United States Attorney, Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

TORRUELLA, Circuit Judge.

David Oquendo–Rivas (“Oquendo”) appeals from the denial of his motion to suppress a series of inculpatory statements. First, he seeks suppression of a statement made to his arresting officer, arguing that he was questioned while in formal custody but prior to the receipt of Miranda warnings. Second, he seeks suppression of all statements made during his formal interrogation, arguing that questioning resumed impermissibly soon after his initial refusal to make a statement and continued even after his unambiguous request for counsel. None of these theories passes muster. Consequently, we affirm the denial of the motion to suppress.

I. Background

A. Arrest and Interrogation ¹

A shootout at La Tómbola, a bar near Toa Baja, Puerto Rico, left several patrons dead. In its aftermath, rumors led officers from the Puerto Rico Police Department (“PRPD”) to a nearby home, where several men involved in the murders were thought to be hiding. Arriving at the residence, officers observed three men standing in its fenced-in yard. Startled by the officers, one man—later identified as Oquendo—lifted his shirt to reveal a firearm in his waistband. All three men then fled. One, exiting the yard, successfully evaded the ensuing pursuit; he has never been identified. The other two, Oquendo and his co-defendant, Christian Ortiz–Rivera (“Ortiz”), ran up an exterior staircase and into the home's second-story interior. The officers gave chase.

Entering the home's upper level, Officer Rodríguez–Negrón (“Officer Rodríguez”) observed Oquendo toss a handgun out of the window. Soon after, Officer Rodríguez and Officer Roberto Cruz grabbed Oquendo and restrained him on the floor. While demobilizing Oquendo, they heard a fellow officer call out from below, indicating that he had possession of the thrown weapon. Officer Rodríguez then entered an adjoining bedroom, where he witnessed Ortiz attempting to hide two more firearms in a laundry basket. One of these guns had an obliterated serial number. Subsequent to detaining both men, but before their formal arrest, Officer Rodríguez asked if they were licensed to possess firearms. Oquendo and Ortiz both answered, “no.”

After being placed under formal arrest and verbally read his Miranda rights,² Oquendo was taken to the police station in Bayamón, Puerto Rico for questioning. There, Officer Rodríguez provided him with a Spanish-language Miranda waiver form. This form set forth, in a bullet-point list, the nature of Oquendo's Miranda rights. Under that bulleted description, the form provided space for Oquendo to waive his rights by consenting to make a statement outside the presence of a lawyer, if he so desired. After reviewing the form, Oquendo indicated that he did not wish to make a statement. No questions were asked and, after signing and dating the form, Officer Rodríguez left the room.

Approximately twenty minutes later, Agent Julio Torres (“Agent Torres”) from the federal Alcohol, Tobacco, Firearms and Explosives Bureau (“ATF”) entered Oquendo's interrogation room. Agent Torres handed Oquendo another blank copy of the Spanish-language Miranda waiver form. After reviewing this duplicate form, Oquendo wrote next to the portion of the form related to waiver, “I do not understand this, my lawyer speaks.” ³ Agent Torres then verbally read Oquendo his Miranda rights and, upon seeing the note, asked Oquendo what he did not understand. In response, Oquendo indicated that he was willing to speak without a lawyer present, but that he did not want to answer any questions about the deaths at La Tómbola. Agreeing to limit the scope of his questions, Agent Torres had Oquendo circle the portion of the waiver form consenting to speak without a lawyer. Both Oquendo and Agent Torres then signed the form, and questioning began. During the course of his interrogation, Oquendo made statements indicating that he knew Ortiz possessed a gun with an obliterated serial number.

B. Motion to Suppress

Oquendo was indicted for aiding and abetting in the possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 2 and 922(k). Before the district court, Oquendo argued for the suppression of his spontaneous post- Miranda statements, on the theory that his purported counsel, having arrived at the home but lacking even the most basic information about his clients, was denied access. This claim has been abandoned on appeal. ⁴ Oquendo also sought suppression of his statements to Agent Torres, arguing that his written note was an unambiguous request for counsel, requiring the immediate cessation of questioning until an attorney was present.

At trial, the district court judge informed the parties that he wanted to revisit his prior order denying the motion to suppress. He explained that, in issuing the initial order, he had believed the motion to suppress to focus only on a single issue: whether Oquendo's purported attorney was wrongly denied access to his client at the time of arrest. Upon closer review of the rather muddled motion, however, he understood it also to allege that Agent Torres's interrogation violated Oquendo's Miranda rights. In order to treat this additional issue, the jury was excused and Agent Torres was called for questioning. At the end of this suppression hearing, the district court judge deemed Agent Torres's testimony credible and held that Oquendo's written statement was not an unambiguous request for counsel. Moreover, the district court judge determined that Agent Torres's decision to commence questioning approximately twenty minutes after Oquendo refused to make a statement to PRPD officers did not violate Oquendo's right to remain silent.

Oquendo appeals from the district court's determination that Agent Torres's interrogation neither violated his right to remain silent nor ignored an unambiguous request for counsel. He also forwards a new argument, seeking suppression of his initial admission to Officer Rodríguez that he did not possess a gun license. This latter claim is predicated on the theory that Oquendo, at the time of Officer Rodríguez's question, was in formal custody but had not been read his Miranda rights.

II. Discussion

In reviewing a district court's denial of a motion to suppress, “[w]e view the facts in the light most favorable to the district court's ruling.” United States v. Camacho, 661 F.3d 718, 723 (1st Cir.2011) (alteration in original) (quoting United States v. Soares, 521 F.3d 117, 118 (1st Cir.2008)). We assess questions of fact, as well as the district court's credibility determinations, for clear error. Id. at 723–24. These findings are susceptible to reversal only where we are definitely and firmly convinced that a mistake has been made. United States v. Nee, 261 F.3d 79, 84 (1st Cir.2001). Questions of law, in contrast, receive de novo review, as does the district court's application of law to its findings of fact. United States v. Werra, 638 F.3d 326, 330 (1st Cir.2011).

A. Statement to Officer Rodríguez

Oquendo seeks suppression of his statement to Officer Rodríguez that he did not hold a license to possess firearms. This statement was made while at the Toa Baja residence, after Oquendo was restrained on the floor. Oquendo asserts that it was elicited while he was formally in custody, see Berkemer v. McCarty, 468 U.S. 420, 438–39, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (establishing the test to determine whether detention prior to arrest is custodial), but prior to the receipt of any Miranda warnings.

We do not reach the merits of this claim, as it is not properly before us. Fed.R.Crim.P. 12(e) (deeming waived any motion to suppress not made before the district court's motion deadline); United States v. Santos Batista, 239 F.3d 16, 19 (1st Cir.2001) (“Failure to raise suppression arguments before trial shall constitute waiver thereof.” (citation and internal quotation marks omitted)).⁵ Oquendo's motionto suppress never made reference to his statement regarding licensure, instead only seeking the suppression of two other sets of statements, which were made after formal arrest and during interrogation. United States v. Torres, 162 F.3d 6, 11 (1st Cir.1998) (“[ Rule 12(e)'s] waiver provision applies not only when a defendant has failed altogether to make a suppression motion but also when, having made one, he has neglected to include the particular ground that he later seeks to argue.”).

Our court has previously suggested that unpreserved suppression arguments may be merely forfeited rather than waived, engendering plain-error review. United States v. Nuñez, 19 F.3d 719, 723 n. 10 (1st Cir.1994); see also United States v. Pérez–González, 445 F.3d 39, 44 (1st Cir.2006). Recent precedent, however, shows a strong inclination against plain-error review. United States v. Lyons, 740 F.3d 702, 720 (1st Cir.2014) (reasoning that recent precedent strongly favors a finding of waiver); United States v. Crooker, 688 F.3d 1, 9–10 (1st Cir.2012) (refusing to review an untimely suppression argument for plain error). We have emphasized that, by its express terms, Rule 12(e) calls for waiver, and we have noted that ignoring this mandate would be “manifestly unfair” to the prosecution. United States v. Walker, 665 F.3d 212, 228 (1st Cir.2011). We see no grounds on which to treat Oquendo's claim differently.

Neither can Oquendo find refuge in Rule 12(e)'s “good cause” exception, which allows the court to grant relief...