                                                                             FILED
                           NOT FOR PUBLICATION                                JAN 16 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50056

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00236-CAS-3

  v.
                                                 MEMORANDUM*
RAMIRO CISNEROS-HERNANDEZ,
AKA Arturo Hernandez-Duran,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                          Submitted December 10, 2014**
                              Pasadena, California

Before: PREGERSON, NOONAN, and WARDLAW, Circuit Judges.

       Ramiro Cisneros-Hernandez (“Cisneros-Hernandez”) appeals his

convictions for conspiracy to import at least 100 kilograms of marijuana,

importation of at least 100 kilograms of marijuana, and possession with intent to

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
distribute at least 100 kilograms of marijuana. Cisneros-Hernandez contends that

the district court erred by denying his motion to suppress his Mirandized post-

arrest statements, and that the error was not harmless. We have jurisdiction under

28 U.S.C. § 1291. Because the district court correctly denied the motion to

suppress, we affirm the conviction.

      Given his physical and mental state after being shipwrecked on San Nicolas

Island1 for three days, the interrogation at the United States Navy facility on the

island, and the alleged use of handcuffs during the interrogation, Cisneros-

Hernandez argues that he involuntarily waived his Miranda rights. The

voluntariness of a waiver of Miranda rights is reviewed de novo. United States v.

Jennings, 515 F.3d 980, 986 (9th Cir. 2008). The district court’s underlying

factual findings are reviewed for clear error. United States v. Doe, 155 F.3d 1070,

1074 (9th Cir. 1998).

      To determine whether a confession was voluntary, we focus on “‘whether

the defendant’s will was overborne by the circumstances surrounding the giving of

the confession,’ an inquiry that ‘takes into consideration the totality of all the



      1
         San Nicolas island is a remote island in the Channel Islands Chain, located
off the coast of Ventura County, California. It is exclusively occupied by the
United States Navy. The island is a secured military facility and only authorized
personnel are permitted on the island.

                                            2
surrounding circumstances—both the characteristics of the accused and the details

of the interrogation.’” United States v. Preston, 751 F.3d 1008, 1016 (9th Cir.

2014) (en banc) (alterations omitted) (quoting Dickerson v. United States, 530 U.S.

428, 434 (2000)). These factors and “‘all of the surrounding circumstances—the

duration and conditions of detention (if the confessor has been detained), the

manifest attitude of the police toward him, his physical and mental state, the

diverse pressures which sap or sustain his powers of resistance and self-

control—[are] relevant.’” Id. (quoting Culombe v. Connecticut, 367 U.S. 568, 602

(1961)).

      Considering the totality of the circumstances, Cisneros-Hernandez’s will

was not overborne. First, there is no evidence that law enforcement officers

threatened or coerced Cisneros-Hernandez. Cisneros-Hernandez testified that he

felt he had no choice but to answer all the questions during his interrogation

because he said an unidentified federal agent told him he would go “to prison for

life” if he did not cooperate. The district court found this statement incredible,

however, because during the suppression hearing Cisneros-Hernandez “was unable

to recall the details of this alleged incident and much of what he did remember

conflicted with his sworn declaration.” Because there is no reliable evidence to

support Cisneros-Hernandez’s contention that his statements had been coerced by


                                           3
the unknown agent’s threats, the district court’s factual finding is not clearly

erroneous. See Doe, 155 F.3d at 1074.

      On the contrary, rather than being coercive, the two Department of

Homeland Security (“DHS”) agents who interviewed Cisneros-Hernandez spoke

calmly and professionally throughout the interview. The interview was conducted

by those two agents only. The interrogation was kept brief at approximately one

hour. Moreover, although he contends otherwise, Cisneros-Hernandez was not

held incommunicado. The agents advised Cisneros-Hernandez, a Mexican citizen,

that he could contact the Mexican Consulate or an attorney at anytime, yet he

affirmatively declined to do so.

      Second, the physical and emotional ordeal Cisneros-Hernandez had endured

did not render his Miranda waiver and confession involuntary. Before he was

interviewed, Cisneros-Hernandez was given food, water, a blanket, and a place to

sleep for several hours in a heated room. Medical personnel cleared him for

questioning. One of the two interrogating DHS agents—who is also an Emergency

Medical Technician—checked Cisneros-Hernandez again and found that he

appeared to be in good condition; did not exhibit signs of dehydration or

confusion; and was cooperative, coherent, and responsive to questioning.

      Third, although Cisneros-Hernandez argues that he should have been taken


                                           4
to the mainland for questioning, there was good reason for the DHS agents to

interrogate him on the island: the agents went to the island to find and collect

evidence of possible drug smuggling and to determine whether there were any

other people on the island involved in the alleged crime. It was therefore important

to question Cisneros-Hernandez at the scene with minimal delay.

      Finally, considering the totality of the circumstances, the alleged use of

handcuffs did not render the interrogation unduly coercive. The parties contest

whether Cisneros-Hernandez was handcuffed during the interview. Assuming

Cisneros-Hernandez was handcuffed, he had free movement of his hands and he

was able to eat trail mix and drink several cups of coffee during the interview.

Moreover, he had previous experience with law enforcement and with being

handcuffed. Although Cisneros-Hernandez acknowledged that he had prior

experience being handcuffed, he testified that the reason the handcuffs concerned

him during the interrogation on San Nicolas Island was the presence of the United

States Navy. Yet, he contradicted this statement when he testified that the United

States Navy personnel treated him well, gave him food and water, and were “well

behaved.” Because Cisneros-Hernandez had free use of his hands, had prior

experience being handcuffed, and admitted that he had no reason to be concerned

for his safety, the alleged use of handcuffs did not render the interrogation


                                           5
coercive. See Greenawalt v. Ricketts, 943 F.2d 1020, 1027 (9th Cir. 1991) (finding

no coercive police activity where Miranda wavier was obtained from a handcuffed

defendant whose restraints were loosened upon his request, who had previous

experience with the police, and who was not treated roughly).

      Considering the totality of the circumstances, Cisneros-Hernandez’s will

was not overborne and his waiver and confession were voluntary. He was not

threatened by the DHS agents, but was instead given food, water, medical

treatment, a blanket, and a place to rest for several hours before being interrogated.

The agents were polite; the interview was brief; and Cisneros-Hernandez knew he

could contact an attorney or the Mexican Consulate if he wanted assistance. He

also had previous experience with law enforcement in which he was handcuffed.

Thus, the district court did not err in denying Cisneros-Hernandez’s motion to

suppress.

      Because we find Cisneros-Hernandez voluntarily waived his Miranda rights,

we affirm the district court’s denial of the motion to suppress and affirm the

conviction.

      AFFIRMED.




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