US v. Minjares-Alvarez

• Decision Date: 27 July 2001
• Docket Number: No. 00-2004,D,MINJARES-ALVARE,00-2004
• Citation: 264 F.3d 980
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARIOefendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 980

264 F.3d 980 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARIO MINJARES-ALVAREZ, Defendant-Appellant.

No. 00-2004

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 27, 2001

Appeal from the United States District Court for the District of New Mexico

(D.C. No. CR. 99-159-LH)

Lisa J. Gardner, Assistant Federal Public Defender (Stephen P. McCue, Federal Public Defender, and Shari Lynn Allison, Research and Writing Specialist, with her on briefs), Las Cruces, New Mexico.

Sarah Y. Vogel, Assistant United States Attorney (Norman C. Bay, United States Attorney, with her on brief), Las Cruces,New Mexico.

Before EBEL,PORFILIO, and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

Appellant Mario Minjares-Alvarez ("Minjares") challenges his conviction under 8 U.S.C. 1326 for illegally reentering the United States after being deported to Mexico for an aggravated felony. Minjares argues that we should vacate his conviction because statements he made to a United States Border Patrol agent, which were introduced by the prosecution at his trial, were coerced. Moreover, Minjares argues that his statements should have been excluded because he was never informed of his right to consult with the Mexican consulate, as provided by the Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36, 21 U.S.T. 77-78, 101, 596 U.N.T.S. 261 (hereinafter "Vienna Convention"). We AFFIRM Minjares's conviction.

I. BACKGROUND

On December 23, 1998, Dona Ana County, New Mexico sheriff's deputy Guillermo Ruiz ("Deputy Ruiz") stopped Minjares for suspicion of driving while intoxicated. Deputy Ruiz observed a twelve-pack of beer, several empty beer bottles, and a partially consumed beer in the car with Minjares. Deputy Ruiz smelled alcohol in the car and on Minjares. Although Minjares did not have a driver's license, he gave Deputy Ruiz his name and told Deputy Ruiz that he was a Mexican citizen without immigration documents. Deputy Ruiz ran a check for outstanding warrants and learned that an INS arrest warrant had been issued for a person matching Minjares's name and description. Deputy Ruiz then placed Minjares under arrest. Deputy Ruiz decided not to administer a roadside sobriety test, however. This was because Minjares did not appear to be significantly intoxicated, he was to be arrested in any case, and, given Minjares's condition as a paraplegic, Deputy Ruiz was unsure how to conduct the tests.

The sheriff's department notified the United States Border Patrol ("Border Patrol") that Deputy Ruiz had arrested Minjares. Deputy Ruiz then took Minjares's keys and told him to remain in his own car until Border Patrol agents arrived. Deputy Ruiz cited Minjares for having an open container of alcohol, driving with a suspended license, and for a traffic infraction.

Border Patrol Agent Desi D. DeLeon ("Agent DeLeon") responded to the sheriff department's notification that it had Minjares under arrest. Agent DeLeon arrived on the scene, verified Minjares's identity, and ran a second check for warrants which also came back positive. Agent DeLeon asked Minjares his name, date of birth, citizenship, and whether he had previously been deported. Minjares responded to each question, answering "yes" when asked if he had previously been deported. Agent DeLeon then drove Minjares approximately 30 minutes to a Border Patrol station without further questioning.

At the Border Patrol station, Agent DeLeon read Minjares a form, written in Spanish, that notified him of his rights to counsel and to remain silent. Minjares signed the form and waived his rights in the presence of Agent DeLeon and two other Border Patrol agents. Agent DeLeon did not inform Minjares that the Vienna Convention afforded him a right of access to a Mexican consulate and a right to consult with a consul. Agent DeLeon interviewed Minjares, and Minjares signed a sworn statement that he had previously been deported and had last entered the United States on March 31, 1998. Agent DeLeon testified that Minjares "was attentive, answering willingly without hesitation," that he did not slur his speech or stumble, that he understood what was happening to him, and that he never asked for a lawyer or sought to stop the interrogation. Minjares was not handcuffed or placed in a cell prior to or during his interrogation, and Agent DeLeon maintained a conversational tone of voice while speaking to Minjares. Agent DeLeon could not smell alcohol on Minjares and could remember nothing that suggested Minjares was intoxicated during the interrogation.

Minjares moved to suppress the statements he had made to police, asserting two separate theories. First, Minjares argued that his statements were not voluntary. Second, Minjares argued that his statements should be suppressed because he was never informed that he had a right to consult with consular officials from Mexico pursuant to the Vienna Convention. See 21 U.S.T. at 101. Although Minjares acknowledges he understood his constitutional rights, he testified at his suppression hearing that he would have had a better appreciation of the gravity of his situation had he known of his Vienna Convention rights. Minjares also submitted a letter from Anibal Gomez-Toledo, the Consul for Protection with the Mexican Consulate in El Paso, Texas, stating that he would have advised Minjares of his rights under U.S. law and that, generally, he advises Mexican citizens who are arrested in the United States to assert those rights. Minjares thus contends that he was prejudiced because the consul's advice would have influenced him to stand on his constitutional rights rather than make the incriminating statements that he now seeks to suppress.

The district court denied Minjares's motion to suppress his statements, specifically concluding that he was not intoxicated during the interrogation.¹ Further, it made a factual finding that Minjares would not have asserted his consular rights had he known of them, and therefore held that he had not suffered prejudice despite the Government's admitted violation of the Vienna Convention.

Procedural History

After the district court denied Minjares's motion to suppress, he was tried in a three-day jury trial beginning July 15, 1999. A critical issue at trial was whether Minjares had actually left the United States, or whether he was instead merely subject to an order of deportation that was never properly exercised. To rebut Minjares's evidence that he never actually left the United States after he was ordered deported, the Government submitted Minjares's sworn statement that he had been deported and subsequently reentered the United States, as well as Agent DeLeon's testimony describing the interrogation. The jury convicted Minjares, and he was sentenced to 84 months in prison and ordered to pay a $100 special assessment.

Minjares now appeals that conviction on the ground that the trial judge erred in denying his motion to suppress, and he requests this court to vacate his conviction and order a new trial.

II. STANDARD OF REVIEW

"On appeal from a motion to suppress, we accept the district court's factual findings unless clearly erroneous, review questions of law de novo, and view the evidence in the light most favorable to the prevailing party." United States v. Maden, 64 F.3d 1505, 1508 (10th Cir. 1995). "The credibility of witnesses and the weight to be given the evidence is the province of the district court." United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999). We review de novo the ultimate issue of whether a statement was voluntary, taking into account the totality of the circumstances surrounding the confession. See United States v. Nguyen, 155 F.3d 1219, 1222 (10th Cir. 1998); United States v. Glover, 104 F.3d 1570, 1579 (10th Cir. 1997).

III. DISCUSSION

A. Fifth Amendment Voluntariness

Minjares's first assignment of error is that the district court erred in refusing to suppress statements he made to Agent DeLeon of the Border Patrol. After receiving testimony from Minjares, Agent DeLeon, and Deputy Ruiz, the district court made a factual finding that Minjares was not intoxicated at the time he waived his Fifth Amendment right to silence. Further, the district court found that Minjares "clearly knew" he did not have to talk to the Border Patrol agents without an attorney present. The district court therefore denied Minjares's motion.

Minjares contends that, given the totality of the circumstances, the district court erred in concluding his statements were voluntary. Specifically, Minjares argues that the district court's finding that he was not intoxicated when he waived his rights was clearly erroneous. Moreover, he contends that his statements were coerced because he was arrested late at night after he had been drinking, he was fatigued during and after his arrest, he was not given Miranda warnings for approximately three hours after his arrest, and the interrogations took place in the company of armed, uniformed officers.

The Supreme Court recently held that the advisements first required by Miranda v. Arizona, 384 U.S. 436 (1966), arise out of the constitution, and that a defendant's post-arrest statements must therefore be excluded unless the defendant was first notified of his Miranda rights. See Dickerson v. United States, 530 U.S. 428 (2000). Since Minjares did not receive any advisement of his rights at the scene of his arrest, those statements he made prior to being transported to the Border Patrol Station were inadmissible pursuant to Dickerson and Miranda. None of these statements, however, were submitted to the jury. Therefore whatever deprivation of rights Minjares may have suffered at that point did not affect his trial.²

The Government did, however, enter into evidence the statements Minjares made during his interrogation at the Border Patrol station. Minjares concedes that he made these statements after Agent DeLeon had fully advised him of his...