     Case: 17-51030      Document: 00515328024         Page: 1   Date Filed: 03/02/2020




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit


                                      No. 17-51030
                                                                          FILED
                                                                      March 2, 2020
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

               Plaintiff - Appellee

v.

GABRIEL ALEJANDRO ALVARADO-PALACIO,

               Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas


Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges. *
JAMES E. GRAVES, Jr., Circuit Judge:
      Defendant-Appellant Gabriel Alejandro Alvarado-Palacio (“Alvarado-
Palacio”) asks this court to reverse the district court’s denial of his motion to
suppress based on a determination that he had voluntarily, knowingly and
intelligently waived his Miranda rights before providing officers with
incriminating post-arrest statements. See Miranda v. Arizona, 384 U.S. 436
(1966). After the denial of the motion to suppress, the parties had a bench trial
based on jointly stipulated facts. Alvarado-Palacio was subsequently found
guilty and is currently serving his federal prison sentence. For the reasons set
forth below, we affirm.


      *   Judge Oldham concurs in the judgment only.
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                                     No. 17-51030
                        I. Facts and Procedural History
                                           A.
      On March 29, 2017, Alvarado-Palacio—a Mexican citizen—attempted to
drive a 2004 Nissan containing 9.98 kilograms of methamphetamine into the
United States. He was detained at a port of entry in El Paso, Texas, where
Customs and Border Protection (“CBP”) agents found 17 bundles of
methamphetamine following a secondary inspection of the car. He was
arrested and escorted to a holding cell for questioning.
      Alvarado-Palacio was interrogated by Homeland Security Investigations
(“HSI”) Special Agents Carlos Hernandez (“Hernandez”) and Oscar Flores
(“Flores”) (collectively, the “agents”). The interrogation was video recorded.
Hernandez read Alvarado-Palacio his Miranda rights, in Spanish, informing
Alvarado-Palacio that (1) he has a right to remain silent; (2) anything that he
says may be used against him in court or other judicial process; (3) he may
consult with an attorney before making a declaration or answering any
question; (4) if he cannot afford an attorney, an attorney will be assigned to
him before any interrogation or when he requests one; and (5) if he chose to
answer questions, he can stop the interrogation at any moment or stop to
consult with an attorney. 1 Hernandez asked Alvarado-Palacio, in Spanish, if
he understood his rights. Alvarado-Palacio said yes.
      Next, Hernandez informed Alvarado-Palacio that the interrogation was
being recorded as “protection for everyone” and that Hernandez needed
Alvarado-Palacio to include his name, signature, and date on a Spanish version
of a Department of Homeland Security form including a “Declaration of
[Miranda] Rights” and “Waiver.”             Flores asked Alvarado-Palacio, “You


      1 A phone ring tone momentarily interrupts Hernandez as he reads the last sentence,
but Hernandez goes back to reiterate that if Alvarado-Palacio decides to answer questions,
he has the right to stop at any moment and to stop and consult with an attorney.
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                                 No. 17-51030
understand your rights? And you will, we will be talking to you. We have a few
questions for you. Is that ok? Is that ok with you?” Alvarado-Palacio responded
“Yes, I am ok” as Hernandez slid the form toward him on the file cabinet
indicating where to sign his name, signature, and date. While Alvarado-Palacio
picked up the pen to sign, Flores informed him that he can read the rights
again if he would like. Alvarado-Palacio filled out the form. As Alvarado-
Palacio began reviewing the form, Hernandez attempted to take the form.
Alvarado-Palacio took the form back and looked at it for approximately 15
seconds, appearing to read its contents and repeat some of it under his breath.
      After Alvarado-Palacio was done reading, Hernandez asked Alvarado-
Palacio if he understood his rights. Alvarado-Palacio handed the form to
Hernandez and asked, “Yes, that I may have an attorney, it says?” Hernandez
answered while holding the signed rights and waiver form, “Yes, you may have
an attorney, but right now is when we can speak with you.” Alvarado-Palacio
responded, “Ah, ok.”     Alvarado-Palacio subsequently gave the agents a
confession admitting that he knew the drugs were in the car, even though he
did not know what kind of drugs. Alvarado-Palacio also admitted that he was
offered $800 to take the drugs to a delivery point in the United States.
                                      B.
      The Government charged Alvarado-Palacio with importing and
possessing with intent to distribute 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii) and 21 U.S.C. §§ 952(a) and 960(a)(1),
(b)(1)(H). Before trial, Alvarado-Palacio filed the motion to suppress his
statements and confession, arguing that he did not voluntarily and knowingly
waive his Miranda rights because Hernandez mischaracterized his right to an
attorney.


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                                  No. 17-51030
      Relying on the interrogation video recording and the uncertified English-
Spanish translated transcript “as an aid,” the district court found that
Alvarado-Palacio was subject to a custodial interrogation and “knowingly,
intelligently and voluntarily waived those rights and agreed to speak to the
agents.” The district court also determined that Alvarado-Palacio stated rather
than asked for clarification when he said, “That I can have an attorney, it says.”
The district court later found Alvarado-Palacio guilty of the charged offenses
after a bench trial based on jointly stipulated facts. The district court sentenced
Alvarado-Palacio to 46 months’ imprisonment and five years of supervised
release. Alvarado-Palacio appealed, challenging only the denial of the motion
to suppress his statements and confession made during the interrogation. We
have jurisdiction over this appeal pursuant to 28 U.S.C. §1291.
                           II. Standards of Review
      In reviewing a ruling on a motion to suppress a confession, “we give
credence to the credibility choices and fact finding by the district court unless
they are clearly erroneous,” but “the ultimate issue of voluntariness is a legal
question reviewed de novo.” United States v. Mullin, 178 F.3d 334, 341 (5th
Cir. 1999) (citing United States v. Restrepo, 994 F.2d 173, 183 (5th Cir. 1993)).
      We must defer to the district court’s factual findings unless we are “left
with a definite and firm conviction that a mistake has been committed.” United
States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010) (citing United States v.
Hernandez, 279 F.3d 302, 306 (5th Cir. 2002)). The evidence must be viewed
in the light most favorable to the prior prevailing party—in this case, the
Government. United States v. Pack, 612 F.3d 341, 347 (5th Cir.) (citing United
States v. Cantu, 230 F.3d 148, 150 (5th Cir. 2000)), opinion modified on denial
of reh’g, 622 F.3d 383 (5th Cir. 2010).




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                                  No. 17-51030
                                 III. Analysis
                                       A.
      Law enforcement must inform a suspect of his Miranda rights, but a
suspect can waive those rights if the waiver is made voluntarily, knowingly
and intelligently. Moran v. Burbine, 475 U.S. 412, 421 (1986) (citing Miranda,
384 U.S. at 444, 475). Accordingly, courts consider both the voluntariness
inquiry and the knowing inquiry. Id. Alvarado-Palacio argues that the waiver
of his Miranda rights was invalid because the agents misrepresented his right
to counsel.
      For a waiver of Miranda rights to be voluntary, it must be “the product
of a free and deliberate choice rather than intimidation, coercion, or deception.”
Id. “[T]rickery or deceit is only prohibited to the extent it deprives the suspect
‘of knowledge essential to his ability to understand the nature of his rights and
the consequences of abandoning them.’” Soffar v. Cockrell, 300 F.3d 588, 596
(5th Cir. 2002) (en banc) (quoting Burbine, 475 U.S. at 424). “The voluntariness
determination is made on a case-by-case basis and is viewed under the totality
of the circumstances surrounding the interrogation.” United States v.
Cardenas, 410 F.3d 287, 293 (5th Cir. 2005) (citing United States v. Reynolds,
367 F.3d 294, 298 (5th Cir. 2004)).
      The facts here are rather straightforward—the agents informed
Alvarado-Palacio of his Miranda rights, including his right to consult with an
attorney before or during any interrogation; Alvarado-Palacio indicated he
understood his rights; Hernandez slid over a waiver and Flores mentioned that
Alvarado-Palacio could read the rights again; Alvarado-Palacio wrote his
name, signature, and date on a Spanish form that included his Miranda rights
and a waiver of these rights; Alvarado-Palacio took a moment to review the
form; the agents asked him if he understood the form and Alvarado-Palacio
responded, “Yes, that I may have an attorney, it says?”; Hernandez answered
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                                 No. 17-51030
while holding the rights and waiver form, “Yes you may have an attorney, but
right now is when we can speak with you”; and Alvarado-Palacio responded,
“Ah ok.” Nothing from the record indicates that Alvarado-Palacio did not make
a free and deliberate choice to waive his right to counsel. Accordingly, this
appeal hinges on the question of whether there was a knowing waiver. See
Soffar, 300 F.3d at 592–93 (noting that the waiver decision must be made with
“full awareness of the right being abandoned” and the consequences of doing
so (quoting Burbine, 475 U.S. at 421)).
                                       B.
      A signed waiver form, though not conclusive, is “usually strong proof” of
a knowing and voluntary waiver. North Carolina v. Butler, 441 U.S. 369, 373
(1979). Both parties agree that agent Flores told Alvarado-Palacio that he
could read the document and that Alvarado-Palacio reviewed the document
after signing it. See Garcia v. Stephens, 793 F.3d 513, 522 (5th Cir. 2015)
(“[W]aivers may be direct or, in some instances, they may be clearly inferred
from the actions and words of the person interrogated” (internal citation and
quotation omitted)); see also United States v. Martinez, 588 F.2d 1227, 1235
(9th Cir. 1978) (finding intelligent waiver even though suspect “testified at the
hearing that he had not read the form at the time he signed it, but two
government witnesses said he did”).
      Examining the totality of circumstances here—including Alvarado-
Palacio’s initial affirmation that he understood his right to an attorney prior
to or during interrogation, the video of him signing the Spanish translated
waiver, his second affirmation that he understood his rights, and his
agreement to speak with the agents—the district court’s finding that Alvarado-
Palacio knew and understood his rights is not clearly erroneous. See United
States v. Venegas, 594 F. App’x 822, 828 (5th Cir. 2014) (per curiam) (finding


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                                  No. 17-51030
that a suspect may validly waive his or her Miranda rights even when the
interrogating officer administers a written warning alone).
      Alvarado-Palacio contends that the agents misrepresented when he
could seek counsel. The agents asked Alvarado-Palacio, for the third time, if
he understood his rights. In response, Alvarado-Palacio asked a question or
made a statement. Whether a statement or a question, the result in this case
flows from the circumstances which preceded Alvarado-Palacio’s response.
Prior to this exchange, the agents told Alvarado-Palacio at the start of the
recording he had the right to an attorney before and during any interrogation,
Alvarado-Palacio received a written Spanish waiver that he signed, he
answered affirmatively about understanding the form, and Alvarado-Palacio
said he was “ok” with speaking with the agents. See Colorado v. Spring, 479
U.S. 564, 574 (1987) (holding that suspect need not “know and understand
every possible consequence of a waiver”). Moreover, we have held that an
officer’s misleading statement does not “invalidate[ ] the multiple waivers [a
defendant] had given prior to the interview.” Soffar, 300 F.3d at 596 (noting
that the defendant “was well aware of his rights because he had been given
numerous Miranda warnings and had waived his rights multiple times prior
to his interview” with officers).   Our sister courts have similarly rejected
Miranda arguments from detained individuals who asked officers even more
direct questions about the right to counsel. See, e.g., United States v. Bezanson-
Perkins, 390 F.3d 34 (1st Cir. 2004) (finding valid Miranda waiver and no
coercion where officer stated that there was no immediate access to an attorney
and explained that the defendant would have to hire his own lawyer); United
States v. Shabaz, 579 F.3d 815 (7th Cir. 2009) (finding valid Miranda waiver
where officer brought suspect to interview room before answering suspect’s
question about access to an attorney).


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                                  No. 17-51030
      At most, Alvarado-Palacio can protest that the agents’ failure to go back
to reiterate his Miranda rights is “objectionable as a matter of ethics.” Burbine,
475 U.S. at 423-24. However, the Constitution does not “require that the police
supply a suspect with a flow of information to help him calibrate his self-
interest in deciding whether to speak or stand by his rights.” Id. at 422.
Absent a definite conviction that a mistake has been made, we must “giv[e] due
deference to the credibility determinations of the district court” and “[v]iew[ ]
the evidence in the light most favorable to the government.” United States v.
Solis, 299 F.3d 420, 437 (5th Cir. 2002).        After agents verbally informed
Alvarado-Palacio of his Miranda rights, the “waiver signed by [Alvarado-
Palacio] acknowledged that his statements could be used against him,” which
made his subsequent statements not “constitutionally involuntary.” United
States v. Tapp, 812 F.2d 177, 179 (5th Cir. 1987).
      We also have held that a failure to “pay attention to the waiver form [a
suspect] signed” is insufficient to show that a waiver was made involuntarily
or unknowingly. United States v. Guanespen-Portillo, 514 F.3d 393, 404 (5th
Cir. 2008) (finding that reading a waiver form and affirming one’s
understanding of that form without coercive action demonstrates a valid
waiver). After Alvarado-Palacio signed the rights and waiver form, agents
asked him if he understood his rights. Alvarado gave an ambiguous reply,
“that I can have an attorney, it says?” but then clearly stated “Ah ok” when
agents informed him that they were going to speak with him. We cannot view
this exchange in a vacuum. De La Rosa v. State of Texas, 743 F.2d 299, 302
(5th Cir. 1984) (“We cannot accept the position that would have us ignore the
repeated full and accurate warnings to focus only on the remark that
appointing an attorney would take some time.”). Just moments before, the
agents verbally told Alvarado-Palacio about his Miranda rights and asked if
he understood. He answered yes. The agents also asked if Alvarado-Palacio
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                                 No. 17-51030
understood his rights and would be okay if they asked him a few questions. He
answered that he was ok.
      Finally, Alvarado-Palacio’s reliance on California v. Prysock, 453 U.S.
355, 357 (1981) is misplaced because Prysock involved warnings that did “not
apprise the accused of his right to have an attorney present if he chose to
answer questions.” Duckworth v. Eagan, 492 U.S. 195, 205 (1989) (finding that
Miranda warnings were not defective because two sentences described the
right to counsel before interrogation and the right to stop answering questions
at any time to speak with a lawyer).       Moreover, “[w]e have previously held
that ‘there is no requirement that an accused be continually reminded of his
rights once he has intelligently waived them.’” Biddy v. Diamond, 516 F.2d
118, 122 (5th Cir. 1975) (quoting United States v. Anthony, 474 F.2d 770, 773
(5th Cir. 1973)). As indicated in the video, the agents first verbally informed
Alvarado-Palacio that he could have an attorney before or during any
interrogation, and those rights and waiver were set out on the Spanish
translated form. While holding Alvarado-Palacio’s signed waiver, agent
Hernandez informed Alvarado-Palacio that they would speak with him and he
replied, “Ah ok.”    Accordingly, the video indicates that the agents “fully
advise[d] [Alvarado-Palacio] of his right to appointed counsel before such
interrogation” and fails to show that the agents’ “reference to appointed
counsel was linked to a future point in time after police interrogation.”
Prysock, 453 U.S. at 360.
                               IV. Conclusion
      Viewing the evidence in the light most favorable to the Government and
with deference to the district court’s factual finding, we find no clear error in
the district court’s denial of the motion to suppress Alvarado-Palacio’s
statements and confession made during the interrogation.
AFFIRMED.
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