                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         APR 21 2004
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,
                                                       No. 03-1307
 v.                                                (District of Colorado)
                                                 (D.C. No. 03-CR-114-M)
 GERARDO ALARCON,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before HENRY, BALDOCK, and MURPHY, Circuit Judges.



I.    INTRODUCTION

      Defendant-appellee Gerardo Alarcon was arrested when a SWAT team

executed a search of a third-party’s apartment. The SWAT team found two

kilograms of cocaine in the apartment. Alarcon was charged with conspiracy to



      *
       This order and judgment is not binding precedent, except under the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.
distribute a controlled substance in violation of 21 U.S.C. § 846, and with

possession with intent to distribute a controlled substance in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(B).

      Alarcon moved to suppress his confession, arguing that it was obtained in

violation of Miranda v. Arizona, 384 U.S. 436 (1966). The United States District

Court for the District of Colorado granted Alarcon’s motion to suppress,

concluding that Alarcon had not executed a valid waiver of his Miranda rights.

The court based this conclusion on its finding that Alarcon, a native Spanish

speaker, had not understood the Miranda warning or waiver, which were given to

him in English.

      The government appeals the suppression of Alarcon’s confession.

Exercising jurisdiction pursuant to 28 U.S.C. §1291 and 18 U.S.C. § 3731, this

court affirms the district court’s suppression of Alarcon’s confession.

II.   BACKGROUND

      Alarcon was in one Christian Saenz-Sanchez’s apartment when the SWAT

team entered it to execute a search warrant. The SWAT team handcuffed and

arrested Alarcon and took him to the police station.

      The parties contest whether or not Alarcon understood the Miranda rights

read to him in English. A Spanish speaking officer testified that he asked

Alarcon, in Spanish, whether he preferred to be interviewed in English or


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Spanish. On cross examination, the officer did not recall whether he also offered

to read Alarcon his Miranda rights in Spanish. The officer testified that Alarcon

preferred to be interviewed in English. The officer did not, however, ask Alarcon

how well he understood English. Alarcon, on the other hand, testified that the

police just spoke to him in English without ever giving him the option of being

given his Miranda warnings or interrogation in Spanish. Alarcon testified that the

police did not start speaking Spanish to him until the latter part of the interview,

when they realized that he could not understand them.

      Alarcon answered “yes” to the following question on the Miranda waiver

form: “Do you read, write, and understand English?” After signing the Miranda

waiver, Alarcon confessed to the police, at first by answering in English, and later

in Spanish. At his court appearances, Alarcon answered the magistrate judges in

simple English, primarily “yes” and “no” answers, and declined an interpreter on

at least one occasion. Alarcon explained that he declined the interpreter because

the two defendants who had hearings before him were only asked questions that

could be answered with a yes or a no, and he was “trying to look good in court.”

Alarcon answered “yes, sir” when one magistrate judge asked him if he spoke

English fluently. Alarcon testified, however, that he only understood the court

proceedings after they were interpreted for him.




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       Alarcon testified that he understood neither the Miranda warnings he was

given nor the waiver he signed, but that he “kn[e]w that it was laws.” Alarcon

claimed that he can only understand “bits and pieces” of spoken English and must

translate word for word in order to attempt to understand sentences. He testified

that he can only read some English words and that his wife translates English

correspondence for him. Alarcon noted that he often feigns to understand what is

being said to him in English because he is ashamed to admit his lack of English

proficiency.

       Similarly, Nubia Millan, Alarcon’s wife, testified that he has difficulty

understanding English and that she acts as his interpreter. Millan testified that

Alarcon would answer the court in simple English words such as “yes,” and then

turn to her and ask her to interpret what had transpired. After court appearances,

Millan had to interpret the substance of the hearings into Spanish for Alarcon to

comprehend them. She testified that Alarcon will pretend to understand those

who speak to him in English in order to appear respectful and cooperative.

III.   DISCUSSION

       When reviewing a district court’s grant of a motion to suppress, this court

considers the totality of the circumstances and views the evidence in the light

most favorable to the defendant. See United States v. Mitchell, 274 F.3d 1307,

1310 (10th Cir. 2001). This court accepts the district court’s factual findings


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unless those findings are clearly erroneous. Id. The ultimate determination of

waiver is a question of law subject to de novo review. United States v. Toro-

Pelaez, 107 F.3d 819, 826 (10th Cir. 1997).

      The government argues that the district court committed clear error when it

found that Alarcon did not understand the Miranda rights that were read to him in

English. In turn, the government argues, the district court erroneously concluded

that Alarcon did not knowingly and voluntarily waive his Miranda rights. The

government asks this court to reverse the district court’s suppression of Alarcon’s

confession.

      The district court did not commit clear error when it found that Alarcon did

not understand the Miranda rights which were read to him in English. This court

will not reverse for clear error unless, after reviewing all the evidence, it is left

with a definite and firm conviction that a mistake has been made. Manning v.

United States, 146 F.3d 808, 812 (10th Cir. 1998). The credibility of witnesses,

the weight to be given evidence, and the reasonable inferences drawn from the

evidence fall within the province of the district court. United States v. Browning,

252 F.3d 1153, 1157 (10th Cir. 2001) (quotation omitted).

      The evidence presented at the suppression hearing in this case can support

either a finding that Alarcon understood English or one that he did not. The

government’s witnesses testified that Alarcon conversed with the officers in


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English and did not seem to have trouble understanding them. Alarcon and

Millan, on the other hand, testified that Alarcon can understand nothing but the

most elementary English words and phrases, such as “yes,” “no,” “wife,” “son,”

and “where do you live.” Both Alarcon and Millan testified that Alarcon often

pretends to understand English because he wants to appear cooperative and is

ashamed to admit his lack of English proficiency. Most importantly, Alarcon

specifically testified that he did not understand the Miranda rights which were

read to him in English. Thus, the issue of Alarcon’s ability to comprehend the

English Miranda warnings turns entirely on the credibility of witnesses. This

court will not substitute its own opinion of how the evidence should have been

weighed for the district court’s assessment of the proper weight of the evidence

and of the credibility of witnesses. Browning, 252 F.3d at 1157. Therefore, this

court cannot say that it is left with a definite and firm conviction that the district

court erred when it found that Alarcon did not understand the Miranda warnings.

      In light of this factual finding, the district court did not err in concluding

that the waiver was not knowing and intelligent. A waiver is knowing and

intelligent if it is made with full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it. Moran v. Burbine,

475 U.S. 412, 421 (1986). Warnings given in a language which the defendant

cannot comprehend do not convey the substance of the suspect’s rights. See

United States v. Bustillos-Munoz, 235 F.3d 505, 517 (10th Cir. 2000) (waiver
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knowing and intelligent because imperfect translation into a language which

defendant understood conveyed the substance of the rights waived); United States

v. Hernandez, 93 F.3d 1493, 1502 (10th Cir. 1996) (same); United States v.

Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990) (acknowledging that language

barriers may inhibit a suspect’s ability to knowingly and intelligently waive his

Miranda rights). Alarcon did not understand the rights which were read to him in

English. It would be illogical for this court to conclude that Alarcon “at all times

knew he could stand mute and request a lawyer, and that he was aware of the

State’s intention to use his statements to secure a conviction” when he could not

comprehend the language in which the warnings were read to him. See Burbine,

475 U.S. at 422-23; Hernandez, 913 F.2d at 1510. Because Alarcon’s waiver was

not knowing and intelligent, he did not validly waive his Miranda rights. 2 The

district court therefore did not err in suppressing Alarcon’s confession.




      2
       Because this court concludes that Alarcon’s waiver of his Miranda rights
was not knowing and intelligent, it need not reach the question of whether it was
voluntary. See Moran v. Burbine, 475 U.S. 412, 421 (1986) (a valid waiver of
Miranda rights must be both voluntary and knowing and intelligent).
                                         -7-
IV. CONCLUSION

      For the foregoing reasons, this court AFFIRMS the district court’s order

suppressing Alarcon’s confession.

                                             ENTERED FOR THE COURT



                                             Michael R. Murphy
                                             Circuit Judge




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