                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JAN 26 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 99-4018
                                                      (D.C. No. 98-CR-88)
    JULIO GALINDO-MARTINEZ, aka                            (D. Utah)
    Jesus Galindo-Martinez,

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and BRISCOE , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant Julio Galindo-Martinez appeals his conviction and sentence for

illegal re-entry of a deported alien in violation of 8 U.S.C. § 1326. Specifically,

he asserts that the district court erred in denying his pretrial motion to suppress

statements he made at a prior Immigration and Naturalization Service (INS)

administrative interview. We have jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742, and we affirm.


                                             I.

      Defendant was first deported on October 7, 1997, following a conviction in

Utah for possession of a controlled substance with intent to distribute. On or

about January 11, 1998, defendant was arrested by the Salt Lake City police on

suspicion of possession of a controlled substance. The INS placed a detainer on

defendant, and in February 1998, he was interviewed by INS agent Jeffrey Hoover

at the Salt Lake City INS office. Agent Hoover conducted the interview in

Spanish, defendant’s native language. At the beginning of the interview,

defendant was given a copy of a     Miranda warning printed in both English and

Spanish. The Miranda warning was read to defendant in Spanish from INS Form

214 which differs from a standard     Miranda warning in that it advises that any

statements made can be used in      either a court of law or an immigration or




                                            -2-
administrative proceeding.   1
                                  See R. Vol. I, Plaintiff’s exs. 1 and 2. The waiver

also was read to defendant in Spanish. When queried, defendant indicated to

Agent Hoover that he had no questions, that he understood the rights he was

waiving, and that he wanted to waive those rights. He subsequently signed a

waiver written in Spanish.       See id. , ex. 1. During the interview, defendant made

incriminating statements to Agent Hoover, including a confession that he had

entered the United States illegally following prior deportation after conviction of

an aggravated felony. Defendant’s statements were noted on a “Record of Sworn

Statement in Affidavit Form,” which he signed.        See id. , Defendant’s ex. A.

      Following the custodial interview, defendant was indicted for reentering the

United States without obtaining the consent of the Attorney General to reapply for

admission. See 8 U.S.C. § 1326(a). The government sought an enhancement of

sentence pursuant to 8 U.S.C. §§ 1326(b)(2) and 1101(a)(43) due to defendant’s

prior conviction for an aggravated felony. Defendant filed a motion to suppress

the statements given to the INS. Following a hearing, the magistrate judge

recommended that defendant’s motion be denied. On November 6, 1998, the

district court adopted the magistrate judge’s recommendation, and on January 20,



1
       In Miranda v. Arizona , 384 U.S. 436, 468-71 (1966), the Supreme Court
imposed upon law enforcement personnel, the obligation to advise a suspect of
the possible use of his statements against him in a criminal proceeding and of his
right to have counsel present during interrogation.

                                             -3-
1999, found defendant guilty and sentenced him to forty-six months’

imprisonment. On appeal, defendant challenges as error the district court’s denial

of his motion to suppress.


                                             II.

       “When reviewing a district court’s denial of a motion to suppress, we

consider the totality of the circumstances and view the evidence in a light most

favorable to the government.”     United States v. Long , 176 F.3d 1304, 1307 (10th

Cir.), cert. denied 120 S. Ct. 283 (1999). The district court’s factual findings are

reviewed for clear error.   See id.

                                             A.

       Initially, defendant alleges that his inculpatory statements to the INS were

obtained through force, coercion, and deception. Defendant asserts that the fact

that he had been held in a Salt Lake City jail for a period of time before the

interview, and was transferred to the INS office for the interview in handcuffs is

evidence of coercion. We do not agree.

       “The ultimate question of whether a statement was voluntary is a question

of law reviewed de novo.”     United States v. Hernandez , 93 F.3d 1493, 1501 (10th

Cir. 1996). In Moran v. Burbine , 475 U.S. 412 (1986), the Supreme Court

defined two “dimensions” of the       Miranda inquiry as follows:



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       First, the 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. Second, the waiver 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” reveals both an uncoerced choice and the requisite
       level of comprehension may a court properly conclude that the
       Miranda rights have been waived.

Id. at 421 (quoting Fare v. Michael C. , 442 U.S. 707, 725 (1979)).

       Here, the INS does not dispute that the interview was conducted in a

custodial setting , thus triggering the need for a   Miranda advisement. See United

States v. Solano-Godines , 120 F.3d 957, 961 (9th Cir. 1997) (“The test to

determine whether questioning is ‘interrogation’ within the meaning of    Miranda

is whether under all of the circumstances involved in a given case, the questions

are reasonably likely to elicit an incriminating response from the suspect.”)

(further quotation omitted). The INS correctly points out, however, that

defendant has offered no evidence of duress or coercion. Agent Hoover testified,

and defendant does not refute, that defendant was not restrained with handcuffs

during the interview, he was seated at Agent Hoover’s desk, no weapons were

visible, he was talkative and did not complain about the conditions or anything

else, and no threats were made. The INS asserts that the interview was very

short, lasting only a few minutes. Therefore, we conclude that defendant’s claim

of force and coercion in obtaining his statements is without merit.


                                             -5-
                                            B.

      Next, defendant claims that he did not understand Agent Hoover when he

was advised of his Miranda rights in Spanish. He contends that “his native

language is not English and he only has a limited understanding of Spanish,” and

that “he was deceived by an INS Spanish speaker who advised him of complex

concepts in a language he was not proficient in.”   2
                                                        Appellant’s Br. at 10. Here, it

is clear that defendant is an Hispanic male, born and raised in Mexico. He is a

Mexican citizen with family residing in Mexico. He indicated to Agent Hoover at

the time of the Miranda advisement in Spanish that he understood the rights he

was waiving.

      Following his waiver, Agent Hoover asked defendant questions including

his name, birth place, country of citizenship, when he entered the United States,

whether he had been previously deported, and whether he was illegally in the

country. Although it is undisputed that defendant answered these questions in a

manner which tended to incriminate him, it is equally clear that he answered the

questions in a manner which indicated that he fully understood the questions and

the implications of his answers.



2
       Although defendant states to this court that he does not understand English
and has only limited proficiency in Spanish, he does not advise this court as to
what language he does communicate in. We also note that Agent Hoover testified
that, during the interview, defendant answered a few of the questions in English.

                                           -6-
       The INS contends, and we agree, that defendant understood that he did not

have to speak to Agent Hoover, and that if he elected to waive his right not to

speak, any statements he made could be used against him in either an

administrative proceeding or a court of law. Despite defendant’s beliefs to the

contrary, these are not complex concepts, and we conclude that defendant

understood and voluntarily waived these rights. Therefore, under these facts, it is

clear that defendant’s allegation that he did not understand his rights and his

waiver because of his deficient Spanish is unsupported, and his claim of

involuntary waiver is not meritorious.

                                            C.

       Finally, defendant argues that the Record of Sworn Statement states that the

statements contained therein are to be used in administrative proceedings

exclusively. We do not agree with defendant’s interpretation of the language in

the form. The form states in pertinent part that defendant acknowledged that he

was informed that “any statement [he made] may be used against [him] in any

administrative proceeding.” R. Vol. I, Defendant’s ex. A. Our reading of this

statement does not reveal an intent to limit the statements made therein   only to

administrative proceedings. When defendant was given the Miranda warning

orally in Spanish, he was informed that any statements he made in the course of

the interview could be used in   either an administrative proceeding or a court of


                                            -7-
law. Defendant indicated his understanding of this advisement, asked no

questions, and consented to the interview. Therefore, defendant’s attempt to

construe the language of the form to denote an exclusive use of the statements

fails.


                                            III.

         We conclude that defendant’s waiver of his   Miranda rights was voluntary

and informed. He was adequately advised, in his native language, of the nature of

his rights and the fact that if he chose to waive those rights, his statements could

be used against him in a criminal proceeding.      See Moran , 475 U.S. at 421.

Therefore, the district court’s denial of defendant’s motion to suppress was

appropriate, and the judgment of the United States District Court for the District

of Utah is AFFIRMED.



                                                       Entered for the Court



                                                       David M. Ebel
                                                       Circuit Judge




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