                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2007

USA v. Naranjo
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5395




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 05-5395
                                     ___________



                          UNITED STATES OF AMERICA,


                                            v.

                                ADOLFO NARANJO,

                                                Appellant.
                             ________________________

                   On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (Criminal No. 03-CR-00253)
                  District Court Judge: The Honorable James T. Giles
                                      ___________

                                Argued March 12, 2007

          BEFORE: FUENTES, VAN ANTWERPEN, and SILER,* Circuit Judges.

                                (Filed: March 29, 2007)

Robert Epstein (ARGUED)
Assistant Federal Defender
Elizabeth T. Hey
Assistant Federal Defender
David L. McColgin
Assistant Federal Defender


      *
       The Honorable Eugene E. Siler, Jr., Senior Judge for the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
Maureen Kearney Rowley
Chief Federal Defender
Federal Community Defender Office
Eastern District of Pennsylvania
Suite 540 West – Curtis Center
601 Walnut Street
Philadelphia, PA 19106

       Counsel for Appellant


David E. Troyer (ARGUED)
Assistant United States Attorney
Robert A. Zauzmer
Assistant United States Attorney
Chief of Appeals
Patrick L. Meehan
United States Attorney
United States Attorney’s Office
Eastern District of Pennsylvania
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

       Counsel for Appellee



                               _______________________

                               OPINION OF THE COURT
                               _______________________


FUENTES, Circuit Judge.

       In March 2003, a jury convicted Adolfo Naranjo of attempt to distribute and

possession with intent to distribute cocaine. Naranjo appeals the District Court’s denial

of his motion to suppress statements he made to federal customs agents. For the


                                             2
following reasons, we will affirm.

                                            I.

       We have previously provided the factual background of this matter and will only

briefly recount the facts and relevant procedural history. See United States v. Naranjo,

426 F.3d 221 (3d Cir. 2005) (Naranjo I). In March 2003, federal agents detained and

handcuffed Naranjo outside his apartment building after suspecting him of transporting

cocaine. Naranjo consented to a search of his apartment where Agent Michael Rodgers

told him that he was not under arrest but that agents would like to talk to him. Naranjo

agreed to speak and Agent Rodgers took him to an enclosed patio downstairs.

       While Naranjo was handcuffed, Agent Rodgers interrogated him at length,

eliciting a number of incriminating statements. Agent Michael Fleener, who had told

Naranjo before any questioning that he did not have to speak to the agents, also asked

some questions during the interrogation. Rodgers eventually heard from a supervisor that

Naranjo could be arrested. After Naranjo returned from a trip to the bathroom, Rodgers

read him his Miranda rights. Naranjo then made more incriminating statements before

being taken to a customs house.

       Before trial, Naranjo moved to suppress the statements he made to the agents. The

District Court held a hearing on July 29, 2003, at which the government conceded that the

pre-Miranda statements were inadmissible because Naranjo had been in custody. Two

days later, the parties reconvened, and the District Court denied Naranjo’s motion with

regard to the post-Miranda statements. The Court explained that under the standard

                                             3
established in Oregon v. Elstad, 470 U.S. 298 (1985), Naranjo knowingly and

intelligently waived his Miranda rights and then made statements voluntarily.

       While Naranjo’s appeal was pending before this Court, the Supreme Court issued

Missouri v. Seibert, 542 U.S. 600 (2004), which addressed the admissibility of post-

Miranda statements given after a suspect has already made incriminating remarks during

pre-Miranda custodial interrogation. Although five Justices in Seibert concluded that the

defendant’s post-Miranda statements must be suppressed, the case did not produce a

majority opinion. As we explained in Naranjo I, lower courts must apply the reasoning of

Justice Kennedy’s concurrence because it “provides the narrowest rationale for resolving

the issues raised by two-step interrogations.” 426 F.3d at 231. Justice Kennedy stated

that “in the infrequent case . . . in which the two-step interrogation technique was used in

a calculated way to undermine the Miranda warning,” the test should be whether

“curative measures are taken before the post-warning statement is made.” Seibert, 542

U.S. at 622. When there is not a “deliberate two-step strategy,” according to Justice

Kennedy’s concurrence, “[t]he admissibility of postwarning statements should continue to

be governed by the principles of Elstad.” Id.

       In accordance with Seibert, we remanded to the District Court for determination of

whether Agent Rodgers’ failure to issue Miranda warnings was “an interrogation

technique, ” or instead “was inadvertent or a ‘rookie mistake.’” Naranjo I, 426 F.3d at

232. The District Court held a second suppression hearing, and then denied the motion

to suppress. This appeal followed, and we have jurisdiction under 28 U.S.C. § 1291. We

                                              4
review the District Court’s factual findings for clear error and we exercise plenary review

over the application of law to those facts. See United States v. Perez, 280 F.3d 318, 336

(3d Cir. 2002).

                                             II.

       After a second suppression hearing, the District Court concluded that “there was

no deliberate effort by Agent Rodgers or Agent Rodgers in concert with other agents to

trick Mr. Naranjo into making incriminating statements. . . . Miranda warnings were not

timely given because of mistake.” App. 371. This determination was not clearly

erroneous.

       Agents Rodgers, Fleener, Tommy Boatman, and James Stever testified at the

second suppression hearing. Agent Rodgers stated that at the time of the interrogation, he

did not believe he had to administer Miranda warnings until Naranjo was placed under

arrest. The District Court credited this testimony, as well as the statements of other

agents that they were not deliberately withholding Miranda warnings. In addition, even

though proper Miranda warnings were not initially administered, the fact that Agents

Rodgers and Fleener told Naranjo at the outset that he did not have to speak to them

suggests that they were not employing a deliberate two-step strategy. See United States

v. Street, 472 F.3d 1298, 1314 (11th Cir. 2006) (“[T]he fact that some warnings were

given strongly evidences that the [question-first] tactic was not being used.”).

       We are distressed by the failure of the agents to issue Miranda warnings in a

timely fashion. But the District Court is in the best position to assess whether this failure

                                              5
was deliberate. The District Court has held two suppression hearings and has had ample

opportunity to observe the demeanor of the agents and to evaluate the veracity of their

testimony. We believe the Court did not err by concluding that the agents merely made a

mistake.

                                             III.

       As noted above, Elstad continues to govern the admissibility of post-Miranda

statements when law enforcement has not deliberately employed a two-step strategy.

Elstad instructs lower courts to determine if the post-Miranda statements were

“knowingly and voluntarily made.” Elstad, 470 U.S. at 309. We believe the District

Court did not err in concluding that Naranjo knowingly waived his Miranda rights and

then made voluntary statements to the agents.

       The Elstad Court explained that courts should examine all “the surrounding

circumstances and the entire course of police conduct” in determining voluntariness and

noted that “[t]he fact that a suspect chooses to speak after being informed of his rights is,

of course, highly probative.” Id. at 318. After the first suppression hearing, the District

Court noted that before they interrogated Naranjo, the agents told him that he did not have

to speak to them. The Court concluded that Naranjo understood and acknowledged the

Miranda warnings, and then wanted to make further statements. There is no evidence in

the record that the agents used coercive tactics or referenced Naranjo’s prior

incriminating statements. The District Court’s determination that Naranjo knowingly and

voluntarily waived his Miranda rights is not clearly erroneous.

                                              6
                                         IV.

      For the foregoing reasons, the District Court properly denied Naranjo’s motion to

suppress statements made after customs agents administered him Miranda warnings.

Accordingly, we will affirm.




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