                                                                                  F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                    FEB 9 2000
                                    TENTH CIRCUIT                             PATRICK FISHER
                                                                                        Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.
                                                              No. 98-4189
 ALFREDO ROSARIO-SARIAS, aka
                                                            98-CR-21—001-S
 Miguel Crespo-Quintero, aka
                                                                (D.Utah)
 Victorino Portillo-Villalba, aka Jose
 Garcia-Quintero, aka Ramiro
 Ramos-Ramirez, aka Jose Garcia-
 Quinter,

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before KELLY, HOLLOWAY and BRISCOE, Circuit Judges.


       Defendant-Appellant Alfredo Rosario-Sarias was indicted on one count of

illegal re-entry into the United States by a previously deported alien, a violation of

8 U.S.C. § 1326. Prior to trial, Mr. Rosario moved unsuccessfully to suppress

statements he had made in an interview with an agent of the Immigration and

       *
         This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. This 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.
Naturalization Service (INS). He was convicted following a bench trial on stipulated

facts and sentenced to 70 months’ imprisonment. He now brings this appeal,

challenging the district court’s denial of his motion to suppress.

                                          I

      Defendant had been arrested on unrelated state charges on December 3, 1997,

and was being held in the Salt Lake County jail. At the time of his arrest an INS

“detainer” had been issued. INS Special Agent Kim Kitts was assigned the case and

began an investigation by running a computer search of the NCIC records. As a

result of her efforts, Agent Kitts received a “rap sheet” from the FBI, as well as one

from the State of Oregon. Agent Kitts also determined from the INS’s own records

that Defendant had been previously deported on three occasions.

      On December 10, 1997, Agent Kitts arranged for other agents of the INS to

“borrow out” the Defendant and bring him to the INS offices for an interview.

According to Kitts’s testimony at the suppression hearing, to “borrow out” an inmate

meant to temporarily book the inmate out into custody of the INS “detention guys”

for the purpose of an interview, after which the inmate would be returned to the

county jail. While being transported, Defendant was restrained in handcuffs and a

“belly chain,” but upon arriving at the INS office the restraints were removed.

      Agent Kitts testified that she interviewed Defendant in Spanish, a language in

                                         -2-
which she believes that she is proficient although not fluent. The interview began

with Kitts reading Defendant his Miranda1 rights in Spanish from a form. She then

asked if he understood his rights and would be willing to answer questions. She

testified that Defendant responded that he understood his rights. Agent Kitts testified

that Defendant signed the form, indicating that he was willing to waive his rights and

answer questions. She said that before asking him to sign the form, she read, in

Spanish, statements of his willingness to answer questions. II R. 19. Agent Kitts

testified that she did not recall any verbal response from Defendant after she read this

portion of the form to him, but that he did sign the form. She said that Defendant

gave no indication that he was confused about what was happening during the

interview. Id. at 20.

      After reading the statement of rights to Defendant and obtaining his signature

on the waiver of rights form, Agent Kitts began questioning Defendant about his

immigration status and about the prior convictions appearing on the rap sheets.

According to Kitts’s testimony at the suppression hearing, Defendant admitted that

he had been deported previously and had returned to the United States without

permission. She also testified that he admitted prior convictions, although she was

not asked and did not say what specifically he admitted in this regard.

      1
       Miranda v. Arizona, 384 U.S. 436 (1966).

                                          -3-
      Agent Kitts obtained Defendant’s signature on a second document during this

interview. This form consists of a summary of the interview transcribed in question

and answer format. It is used to facilitate the reinstatement of a prior order of

deportation, according to Agent Kitts. Near the beginning of the document is a

section in which the interviewee acknowledges the circumstances and purpose of the

interview, following which there appears this statement: “[Agent Kitts] has told me

that my statement must be freely and voluntarily given and has advised me that any

statement I make may be used against me in any administrative proceeding .”

(Emphasis added).

      The only other witness who testified at the suppression hearing was the

Defendant. With the assistance of a Spanish interpreter, Defendant testified that he

is from southern Mexico, and in his home town the primary language is Mizteco, an

Indian language. Defendant said he had schooling “[o]nly to Fourth Grade.” II R. 39..

(Later at the bench trial, Defendant testified he had two years of schooling. III. R. at

6). At the suppression hearing Defendant said that young people do not usually

begin learning Spanish in his home town until age fifteen or sixteen. He testified that

as a result he has only limited ability to read and write in Spanish. He indicated that

he understands almost no English. He admitted having been arrested and prosecuted

several times, but with regard to having been informed several other times of his

                                          -4-
rights, he said that he had “never understood any of that.” II R. at 46.

                                         II

      Defendant’s motion to suppress was referred to a Magistrate Judge, who

conducted an evidentiary hearing. At the conclusion of the hearing the judge

requested supplemental briefs from the parties. After these were received, the judge

then issued his report and recommendation. The Magistrate Judge recited the factual

background and the testimony about an interview by Special Agent Kitts of the

Immigration Service on December 10, 1997, with Defendant. The judge noted that

prior to commencing the interview Agent Kitts read the Defendant his rights in

Spanish from an Immigration I-214 form, Government Exhibit 1, which was

introduced in evidence along with an English version of the form, Government

Exhibit 2. Exhibit 1 shows the defendant’s signature in two places with the

December 10, 1997 date. The second signature of Defendant appears below a waiver

paragraph which, when translated, reads substantially as follows:

             I am willing to make a statement and answer questions. I
             do not want a lawyer at this time. I understand and know
             what I am doing. No promises or threats have been made
             to me and no pressure or coercion of any kind has been
             used against me.

      Agent Kitts testified that she read lines 1-11 from the Spanish version of the

I-214 form to Defendant. II R. 16. The section on the English version of the form

                                         -5-
states in part:

       “Before we ask you any questions, you 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 proceeding . . .”

Government Exhibit 2.

       Agent Kitts testified that after she advised Defendant of his rights, she asked

if he understood them. Defendant responded that he did and Agent Kitts stated that

she then read the waiver section of the form to the Defendant in Spanish. Report and

Recommendation at 6. The Defendant testified that he had schooling only to the

Fourth grade. He said that he reads and writes “very little in Spanish,” and that he has

difficulty comprehending things in Spanish because his native language is Mizteco,

which is an Indian language used in southern Mexico. Report and Recommendation

at 7. Defendant testified that in his hometown, they did not speak Spanish until he

was older, 15 or 16, and he said he understands almost no English. Id. at 7.

       The Magistrate Judge made a legal analysis in his Report and

Recommendation. I R. at 9-15. He noted that the Defendant’s primary argument is

that he did not understand the Miranda warnings given to him by Agent Kitts due to

a language barrier, and that his alleged waiver of those rights was not knowingly,

intelligently and freely made. The government, on the other hand, maintained that the

                                          -6-
Defendant’s knowledge of Spanish allowed him to fully understand his        Miranda

rights. Report and Recommendation at 9. The judge noted that there was no dispute

that the interview of Defendant took place in a custodial setting; that prior to

questioning, Defendant was advised by Agent Kitts in Spanish of his rights under

Miranda. The judge said the evidence reflects that during the interview there was

never any show of force by Agent Kitts or other factors indicative of coercion or

duress. Report and Recommendation, I R. at 11. Thus the statements by Defendant

were found to have been voluntarily and freely given (satisfying the first requirement

for a valid waiver of Defendant’s Miranda rights). Id. at 12.

      The judge then considered the second requirement concerning a waiver - that

it be made with full awareness of the right being abandoned and the potential

consequences. Report and Recommendation at 12. The judge said that there is no

question that language barriers are a factor to consider because they may impair a

suspect’s ability to act knowingly and intelligently. The judge noted Defendant’s

contention that although he speaks some Spanish, his native language is Mizteco and

that he did not “understand very much of what he had been told concerning his

rights.” Id. at 13. Agent Kitts, on the other hand, testified “that she did not have

difficulty communicating with the Defendant nor did she observe any indicators that

he was having trouble understanding the nature of the rights contained on the Spanish

                                         -7-
version of I-214.”    Report and Recommendation at 13-14.           The Report and

Recommendation said there was no evidence that Defendant suffers from any

diminished mental capacity or was under the influence of medication or alcohol at the

time he made the statement to Agent Kitts. The judge concluded that:

             Thus, in light of these factors, along with the court’s own
             observation of the defendant during his testimony at the
             evidentiary hearing through a Spanish-speaking interpreter,
             the court finds that at the time of the interview, defendant
             sufficiently understood the advice of rights under Miranda
             given to him in Spanish. The court further finds that
             defendant’s express waiver was knowingly and
             intelligently given because he knew the nature of the right
             being abandoned and the consequences of his decision to
             abandon it.

Id. at 14. The Magistrate Judge found that the Defendant’s statements to Agent Kitts

were the product of his free and deliberate choice and did not result from any acts of

intentional coercion or deception on the part of Kitts, and that Defendant’s waiver of

his right against self incrimination was knowingly and intelligently given. It was

recommended that Defendant’s motion to suppress be denied.                  Report and

Recommendation at 15.

      The District Judge considered the Report and Recommendation and the short

objection to it by Defendant. The judge considered the matter novo and concluded
                                                            de

that the Report and Recommendation was correct and therefore adopted it, denying



                                         -8-
the Defendant’s motion to suppress on July 9, 1998. Order, I R. Item 30.

      After the denial of Defendant’s motion to suppress, the parties appeared for a

factually stipulated bench trial before the District Judge, III R. 10-11, and thereafter

the District Judge found Defendant guilty. The Defendant reserved his right to appeal

the denial of his motion to suppress, which is the basis of the appeal before us. For

reasons that follow, we are satisfied that the record amply supports the findings and

conclusions of the Magistrate Judge which were adopted by the District Judge, and

affirm the judgment and the denial of the motion to suppress.

                                                III

      The ultimate issue of the voluntariness of a statement is subject to our de novo

review, while underlying findings of fact are reviewed only for clear error. United

States v. Roman-Zarate, 115 F.3d 778, 783 (10th Cir. 1997). Defendant contends that

he possesses only a rudimentary command of Spanish, and that therefore he was

incapable of understanding his rights as he was advised of them in Spanish by Agent

Kitts. Defendant also contends that the statements were not truly voluntary because

the circumstances of the interview were inherently coercive, especially to a Mexican

national unfamiliar with such concepts as the right to remain silent and the right to

have an attorney provided at the government’s expense.

      This is simply an argument that Defendant did not understand the Miranda

                                          -9-
warnings sufficiently for his waiver to have been made knowingly and intelligently.

However, Defendant fails to show that the Magistrate Judge clearly erred in finding

to the contrary. Defendant has only pointed to his own testimony which, if accorded

complete credibility, could have supported a contrary finding; however this falls short

of convincing us that the finding made was clearly erroneous. The Magistrate Judge

took into account his own observations of the Defendant’s communication abilities

as Defendant testified at the hearing and Agent Kitts’s testimony concerning her

communications with Defendant in Spanish. The evidence was sufficient to support

the finding that Defendant understood his rights and voluntarily waived them, and we

cannot say that the finding is clearly erroneous.

      The language problem here has some similarity to a difficulty we encountered

in United States v. Osuna, 189 F.3d 1289, 1291 (10th Cir. 1999), which involved the

Court Interpreter’s Act, 28 U.S.C. §1827 (d) (1). There we noted that any “indication

to the presiding judicial officer that a criminal defendant speaks only or primarily a

language other than the English language should trigger the application of Sections

(d) and (f) (1) of the Court Interpreters Act.” (quoting United States v. Tapia, 631

F.2d 1207, 1209 (5th Cir. 1980)). This requires that the judicial officer “shall” use

the services of the most available interpreter.

      Here, however, this was done with the use of a Spanish interpreter, at the

                                         -10-
suppression hearing, II R. at 4, and at the bench trial. III R. at 3. Despite the

complication of Defendant’s Mizteco Indian native language background, the

Magistrate Judge accepted Agent Kitts’ testimony that she did not have difficulty

communicating with the Defendant (in Spanish), nor did she observe any indications

that he was having trouble understanding the nature of the rights contained in the

Spanish version of Exhibit I-214. Report and Recommendation at 13-14.

      Defendant also contends that “while the facts do not suggest coercion, they do

suggest a show of force and deception.” Brief of Appellant at 9. This contention is

without merit. The undisputed evidence was that restraints were removed from

Defendant before the interview. Agent Kitts interviewed Defendant alone, which is

less suggestive of coercion than if she had interviewed him in the presence of a

number of other officers. In short, the only “show of force” involved was simply that

inherent in the fact that Defendant was in custody. Defendant’s contention that his

statements were a result of government deception is based on Agent Kitts having

conducted the interview under the erroneous assumption that Spanish was

Defendant’s primary language. The argument that this constituted deception is non
                                                                              a

sequitur.

      Finally, Defendant makes a strained argument based on the document

containing the summary of the interview with Agent Kitts which, as we have noted,

                                        -11-
included the declaration that Defendant had been advised that any statement given

could be used against him in any “administrative proceeding.” Defendant states that

no other document from the interview “was imbued with such dignity” as this one,

which was the last document presented to Defendant during the interview. Brief of

Appellant at 13-14. From this, Defendant contends that this document represents the

“final formal embodiment of any and all agreements between the parties,” that other

“preliminary documents would have arguably merged into that agreement,” and thus,

Defendant “could have assumed” that his statements would only be used in

administrative deportation proceedings, not in a criminal prosecution. Id. at 14. The

document was not used in the prosecution and Defendant’s argument is consequently

not persuasive. Agent Kitts testified that she explained at the beginning of the

interview that:

             “ . . . Anything you say can be used against you in court or
             in any immigration or administrative proceeding.”

II R. at 18. (Emphasis added).



      We see no basis for concluding that the specification in the sworn statement,

limiting use of that document to administrative proceedings, in any way influenced

Defendant’s previous decision to waive his rights and to answer the questions put to



                                        -12-
him.

       Accordingly the judgment and the order denying the motion to suppress are

AFFIRMED.



                                     Entered for the Court
                                     William J. Holloway, Jr.
                                     Circuit Judge




                                      -13-
