               UNITED STATES COURT OF APPEALS
                     FOR THE EIGHTH CIRCUIT


                            No. 00-4043




                                          *
UNITED STATES OF AMERICA,                 *   Appeal from the United
                                          *   States District Court
               Plaintiff - Appellee,      *   for the District
                                          *   of South Dakota
          v.                              *
                                          *      [UNPUBLISHED]
                                          *
WILLY DERYCK CAJAS-MALDONADO,             *
also known as Willy Deryck Cajas,         *
                                          *
               Defendant - Appellant.     *
                                          *


                     Submitted: June 12, 2001
                         Filed: July 2, 2001


Before WOLLMAN, Chief Judge, HAMILTON1 and MURPHY, Circuit Judges.


PER CURIAM.

     On November 6, 2000, Willy Cajas-Maldonado (the Defendant)
conditionally pled guilty to the charge of possession of a
counterfeit United States immigration document, 18 U.S.C.
§ 1546(a), reserving the right to appeal the district court’s2
denial of his motion to suppress incriminating statements he made
on May 5, 2000 to United States Immigration and Naturalization
Service (INS) Special Agent James Weisenhorn (Agent Weisenhorn).

     1
      The Honorable Clyde H. Hamilton, United States Circuit Judge
for the United States Court of Appeals for the Fourth Circuit,
sitting by designation.
     2
      The Honorable Lawrence L. Piersol, Chief Judge, United States
District Court for the District of South Dakota.
On appeal, the Defendant contends that the district court erred
when it denied his motion to suppress. We affirm.

                                 I
     At the suppression hearing, the government principally relied
on the testimony of Agent Weisenhorn. Agent Weisenhorn testified
that, in the early morning hours of April 24, 2000, he was
contacted by the INS Central States Command Center in connection
with the arrest of the Defendant for driving while intoxicated in
Minnehaha County, South Dakota. At that time, Agent Weisenhorn was
informed that the Defendant had been interviewed by an INS special
agent and that the Defendant was determined to be an illegal alien
because he was in the possession of a resident alien card deemed to
be counterfeit.

     During business hours on April 24, 2000, Agent Weisenhorn
interviewed the Defendant at the Minnehaha County jail. According
to Agent Weisenhorn, he initially attempted to ascertain whether
the Defendant wanted his Miranda3 rights read in English or
Spanish. According to Agent Weisenhorn, the Defendant indicated
that he wanted his rights read in English.       Agent Weisenhorn
testified that he told the Defendant:

     [Y]ou must understand your rights. You have the right to
     remain silent. Anything you say can be used against you
     in court or in any immigration or administrative
     proceedings. You have the right to talk to a lawyer for
     advice before we ask you any questions and to have him
     with you during questioning.    If you cannot afford a
     lawyer, one will be appointed for you before any
     questioning if you wish.      If you decide to answer
     questions now without a lawyer present, you will still
     have the right to stop answering at any time. You also
     have the right to stop answering at any time until you
     talk to a lawyer.

According to Agent Weisenhorn, the Defendant stated that he
understood his Miranda rights and that he was willing to answer
questions. Agent Weisenhorn testified that, during his questioning


     3
      Miranda v. Arizona, 384 U.S. 436 (1966).

                              - 2 -
of the Defendant, the Defendant stated his name, that he was from
Guatemala, and that he entered the United States at San Ysidro,
California in 1989.

     On the INS Form 831 that Agent Weisenhorn filled out in
connection with his interview of the Defendant, it states that
Agent Weisenhorn read the Defendant his rights in English and that
the Defendant was uncooperative. When asked what led him to state
that the Defendant was uncooperative, Agent Weisenhorn testified as
follows:

     [A]s part of the immigration process for every individual
     who is not a citizen of Mexico or Canada that is being
     set up for deportation process, I am required to fill out
     a form I-217, which is information for travel documents
     or passports. This is for individuals who do not have a
     passport or travel documents in their possession and will
     be returning to their country. While I filled that out,
     there were a couple of questions that the individual
     either refused to answer or stated that he can’t recall
     where I believe most individuals would remember.

Agent Weisenhorn testified that the questions the Defendant refused
to answer, or could not recall the answer to, concerned “where he
attended school” and the “names and addresses” of uncles and
cousins living outside of Guatemala.

     At the suppression hearing, the Defendant testified that,
although he stated at the April 24, 2000 interview that he knew his
Miranda rights, he was never read his Miranda rights at that
interview.    The Defendant also testified that, after Agent
Weisenhorn started asking him some questions concerning himself and
his family, he indicated that he “didn’t want to answer those
questions at the moment.”      The Defendant testified that the
questions concerning himself and his family were “where I was
[from], from what nationality I was from, if my mother and father
were alive, how many brothers and sisters I had, and if they were
all here in the United States or if they were back in my country.”
According to the Defendant, when he refused to answer these
questions, Agent Weisenhorn concluded the interview and left.



                              - 3 -
     Agent Weisenhorn interviewed the Defendant a second time at
the Minnehaha County jail on May 5, 2000.      According to Agent
Weisenhorn, the purpose of the second interview was to obtain
“information on how the counterfeit document came to be in South
Dakota and how [the Defendant] obtained it and what his purposes
for having it were.”     Before questioning the Defendant, Agent
Weisenhorn did not read the Defendant his Miranda rights. Rather,
according to Agent Weisenhorn, he “advised” the Defendant “that he
still had his Miranda rights.” Agent Weisenhorn then asked the
Defendant how and where he had obtained the counterfeit resident
alien card and whether he knew the resident alien card was
counterfeit. In response to these questions, the Defendant made
incriminating statements.

     On May 17, 2000, a federal grand jury sitting in the District
of South Dakota charged the Defendant with possession of a
counterfeit United States immigration document, 18 U.S.C.
§ 1546(a). On August 21, 2000, the Defendant moved to suppress the
incriminating statements he made to Agent Weisenhorn.

     Following an evidentiary hearing on September 7, 2000, a
United States Magistrate Judge recommended to the district court
that the Defendant’s motion to suppress be denied. In the report
and recommendation, the magistrate judge addressed two issues: (1)
whether Agent Weisenhorn read the Defendant his Miranda rights on
April 24, 2000, and (2) whether the Defendant’s incriminating
statements to Agent Weisenhorn were knowingly, voluntarily, and
intelligently made.     With respect to the first issue, the
magistrate judge credited the testimony of Agent Weisenhorn and
concluded that Agent Weisenhorn read the Defendant his Miranda
rights on April 24, 2000 and that the Defendant understood those
rights. With respect to the second issue, the magistrate judge
concluded that the Defendant’s incriminating statements were
knowingly, voluntarily, and intelligently made. In reaching this
conclusion, the magistrate judge relied on several factors. First,
the magistrate judge noted that the Defendant was well aware of his
Miranda rights at both the April 24 and May 5, 2000 interviews and
knew how to invoke those rights.     Second, the magistrate judge
noted that the Defendant “chose to answer some of Agent

                              - 4 -
Weisenhorn’s questions, but not others.” Third, the magistrate
judge noted that, at the May 5, 2000 interview, Agent Weisenhorn
did not revisit the questions the Defendant refused to answer at
the April 24, 2000 interview. Fourth, the magistrate judge noted
that the record was devoid of any evidence demonstrating that the
Defendant was coerced into making the incriminating statements;
rather, the Defendant knew his Miranda rights and knew how to
invoke them.4

     On October 10, 2000, with one cautionary note, the district
court adopted the magistrate judge’s report and recommendation “in
its entirety.”     In its cautionary note, the district court
explained that it was not “convinced” that, if the Defendant
unequivocally invoked his right to remain silent at the April 24,
2000 interview, Agent Weisenhorn’s questioning of the Defendant on
May 5, 2000 did not run afoul of the Supreme Court’s decision in
Mosley.    However, the district court noted Mosley was not
applicable because the Defendant “clearly waived his right to
remain silent to many of Agent Weisenhorn’s questions and, at the


     4
      Alternatively, the magistrate judge concluded that, even if
the Defendant unequivocally invoked his right to remain silent at
the April 24, 2000 interview, Agent Weisenhorn’s questioning of the
Defendant on May 5, 2000 did not run afoul of the Supreme Court’s
decision in Michigan v. Mosley, 423 U.S. 96 (1975) (admissibility
of statements obtained after the suspect in custody has decided to
remain silent depends, under Miranda, on whether his right to cut
off questioning was “scrupulously honored”). The magistrate judge
reasoned:

     [The Defendant] testified that when he began to refuse to
     answer some of Agent Weisenhorn’s questions during the
     first interview, [Agent] Weisenhorn concluded the
     interview and left.    Several days passed between the
     first and second interviews, and Agent Weisenhorn
     reminded [the Defendant] of his rights before beginning
     the second interview. Finally, [the Defendant] stated on
     direct examination that, during the second interview,
     Agent Weisenhorn did not revisit the questions [the
     Defendant] refused to answer during the first interview.
     Thus, Agent Weisenhorn was not overreaching and did not
     act improperly or coercively in conducting a second
     interview.

                              - 5 -
second interview, Agent Weisenhorn did not revisit any of the
questions Defendant did not wish to answer during the first
interview,” and because, at the suppression hearing, the Defendant
“stated more than once that he was aware of his rights.”

     On November 6, 2000, the Defendant conditionally pled guilty
to the § 1546(a) charge, reserving the right to appeal the district
court’s denial of his motion to suppress. On December 4, 2000, the
district court sentenced the Defendant to time served plus one day.
The Defendant noted a timely appeal.

                                II
     The Defendant contends that he asserted his right to remain
silent at the April 24, 2000 interview, and, once there is an
assertion of the right to remain silent, it must be scrupulously
honored under Mosley.   The Defendant further contends that his
right to remain silent was not scrupulously honored by Agent
Weisenhorn at the May 5, 2000 interview, and, consequently, the
district court erred when it denied the motion to suppress.

     We review the district court’s “ultimate determination” of
whether there was a violation of Miranda and its progeny de novo,
but the district court’s factual findings are reviewed for clear
error. United States v. Johnson, 169 F.3d 1092, 1097 (8th Cir.),
cert. denied, 528 U.S. 857 (1999).

     In order to protect the right granted by the Fifth Amendment
that “no person . . . shall be compelled in any criminal case to be
a witness against himself,” U.S. Const. amend. V, the Supreme Court
in Miranda adopted prophylactic procedural rules that must be
followed during custodial interrogations. Miranda, 384 U.S. at
444. The Court held that a suspect in custody “must be warned that
he has a right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed.” Id. In
general, any statements elicited from a suspect in violation of




                              - 6 -
these rules are inadmissible in the government’s case-in-chief.
Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam).5

     In order for a confession obtained during a custodial
interrogation to be admissible, the defendant must have knowingly,
voluntarily, and intelligently waived his Miranda rights. Miranda,
384 U.S. at 479. The government has the burden of proving that the
defendant knowingly, voluntarily, and intelligently waived his
Miranda rights. Id.

     In Mosley, the Supreme Court addressed an issue left open by
Miranda--the circumstances, if any, under which resumption of
questioning is permissible after a suspect in custody has indicated
that he wishes to remain silent.      Mosley, 423 U.S. at 100-02.
Rejecting an interpretation of Miranda that would create a “per se
proscription of indefinite duration upon any further questioning by
any police officer on any subject, once the person in custody has
indicated a desire to remain silent,” Mosley, 423 U.S. at 102-03,
the Supreme Court concluded “that the admissibility of statements
obtained after the person in custody has decided to remain silent
depends under Miranda on whether his ‘right to cut off questioning’
was ‘scrupulously honored,’” Mosley, 423 U.S. at 104.6

     However, Mosley does not apply unless the defendant’s
statements represent a clear and unequivocal “expression of a

     5
      In Dickerson v. United States, 530 U.S. 428, 444 (2000), the
Supreme Court held that Miranda announced a constitutional rule
that Congress could not overrule legislatively.
     6
      In Mosley, the Supreme Court set forth the following list of
factors for a court to consider in making this inquiry: (1) whether
the police had given the suspect Miranda warnings at the first
interrogation and the suspect acknowledged that he understood the
warnings; (2) whether the police immediately ceased the
interrogation when the suspect indicated that he did not want to
answer questions; (3) whether the police resumed questioning the
suspect only after the passage of a significant period of time;
(4) whether the police provided a fresh set of Miranda warnings
before the second interrogation; and (5) whether the second
interrogation was restricted to a crime that had not been a subject
of the earlier interrogation. Mosley, 423 U.S. at 104-07.

                              - 7 -
desire to remain silent.” United States v. Thompson, 866 F.2d 268,
272 (8th Cir. 1989); see also United States v. Hurst, 228 F.2d 751,
759-60 (6th Cir. 2000) (Mosley analysis not applied where the
defendant did not clearly and unequivocally assert his right to
remain silent.).      “To determine whether a defendant has
unequivocally invoked the right to remain silent, the defendant’s
statements are considered as a whole.” Simmons v. Bowersox, 235
F.3d 1124, 1131 (8th Cir. 2001).

     In our view, the Defendant never clearly and unequivocally
invoked his right to remain silent at the April 24, 2000 interview.
After the Defendant was read his Miranda rights at the April 24,
2000 interview, he stated that he understood his Miranda rights and
was willing to answer Agent Weisenhorn’s questions. According to
the Defendant, after Agent Weisenhorn started asking him some
questions concerning himself and his family at the April 24, 2000
interview, he stated that he did not want to answer those questions
“at the moment.” The Defendant’s statement was not a clear and
unequivocal invocation of the right to remain silent. See, e.g.,
United States v. Al-Muqsit, 191 F.3d 928, 936-37 (8th Cir. 1999)
(defendant did not clearly and unequivocally invoke right to remain
silent initially by stating “he wasn’t ready to talk about” the
murders and by stating “I don’t think right now” when asked about
the murders ten hours later); Thompson, 866 F.2d at 270-72
(defendant did not clearly and unequivocally invoke right to remain
silent by stating he wanted to “sleep on it” before he talked to
the police and that he would “wait a little while” before he was
interviewed).     Because the Defendant did not clearly and
unequivocally invoke his right to remain silent at the April 24,
2000 interview, Mosley’s “scrupulously honored” standard does not
come into play. Thompson, 866 F.2d at 272.

     Having concluded that the Defendant did not clearly and
unequivocally invoke his right to remain silent at the April 24,
2000 interview, we must proceed to the question of whether the
Defendant knowingly, voluntarily, and intelligently waived his
Miranda rights at the May 5, 2000 interview. To determine whether
a defendant has knowingly, voluntarily, and intelligently waived
his Miranda rights, we examine all the circumstances of each

                              - 8 -
particular case. United States v. Boyd, 180 F.3d 967, 977 (8th
Cir. 1999). “The circumstances include the background, experience,
and conduct of the accused.” Id. (citation and internal quotation
marks omitted). To effectuate a waiver of one’s Miranda rights, a
suspect need not utter any particular words. The Supreme Court has
explained that the “question is not one of form, but rather whether
the defendant in fact knowingly and voluntarily waived the rights
delineated in the Miranda case.” North Carolina v. Butler, 441
U.S. 369, 373 (1979).

     The circumstances surrounding the May 5, 2000 interview compel
the conclusion that the Defendant knowingly, voluntarily, and
intelligently waived his Miranda rights at that interview. First,
although Agent Weisenhorn did not administer a new set of Miranda
warnings, he did “advise[]” the Defendant “that he still had his
Miranda rights.” Second, there is no evidence that the Defendant
did not understand his Miranda rights. Indeed, the record reflects
that the Defendant repeatedly stated at the suppression hearing
that he understood his Miranda rights at both the April 24 and May
5, 2000 interviews. Third, there is no evidence suggesting that
Agent Weisenhorn employed any coercive tactics to gain the
Defendant’s incriminating statements. Fourth, there is no evidence
of diminished capacity on the part of the Defendant. In short, we
have no doubt that the Defendant knowingly, voluntarily, and
intelligently waived his Miranda right to remain silent at the May
5, 2000 interview.7


     7
      We note that Agent Weisenhorn’s failure to administer a new
set of Miranda warnings at the May 5, 2000 interview does not alter
the result.    A time interval between a Miranda warning and a
defendant’s statement does not necessarily mandate that the officer
administer a new set of Miranda warnings. Boyd, 180 F.3d at 976-77
(statements made following a one to two hour time interval were
covered by previous Miranda warnings); see also United States v.
Andaverde, 64 F.3d 1305, 1313 (9th Cir. 1995) (one day time
interval); Martin v. Wainwright, 770 F.2d 918, 930-31 (11th Cir.
1985) (one week time interval), modified on other grounds by Martin
v. Wainwright, 781 F.2d 185 (11th Cir. 1986); Biddy v. Diamond,
516 F.2d 118, 122 (5th Cir. 1975) (two week time interval). In
this case, in light of the facts that Agent Weisenhorn “advised”
the Defendant at the May 5, 2000 interview “that he still had his

                              - 9 -
                               III
     For the reasons stated herein, the judgment of the district
court is affirmed.

     A true copy.

          Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




Miranda rights,” the lack of evidence suggesting that the Defendant
did not understand his Miranda rights, the district court’s finding
that the Defendant was a “relatively intelligent young man,” and
the noncoercive nature of the April 24 and May 5, 2000 interviews,
we cannot conclude that the eleven-day interval between the
Defendant’s Miranda warnings and the Defendant’s May 5, 2000
interview was unreasonable.

                              - 10 -
