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

                                                 FILED
                                                                         December 22, 2009

                                       No. 08-41029                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

SANTA DELGADO-ARROYO

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                          USDC No. 5:08-CR-00736-ALL


Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Pursuant to a conditional guilty plea, Santa Delgado-Arroyo appeals the
denial of her motion to suppress her post-Miranda-warning confession to
knowingly bringing, and attempting to bring, illegal aliens into the United
States for financial gain. Primarily at issue is whether this confession was
improperly obtained, following an earlier one that was unwarned. AFFIRMED.




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                 No. 08-41029

                                       I.
      At approximately 5:00 a.m. on 1 May 2008, Delgado and three minor
children, passengers on a commercial bus from Mexico, arrived at a border
inspection in Laredo, Texas. Delgado identified herself to Customs and Border
Patrol (CBP) Agents as a legal permanent resident, presented a United States
birth certificate for each child, and identified them as her son and nieces.
      Suspecting a false claim to United States citizenship, CBP Agents escorted
Delgado and the children to the secondary screening area (secondary), where
Delgado was separated from the children and seated in a roughly five-by-ten foot
interview room. Pursuant to CBP procedure, she was handcuffed during part
of the time she waited for her interviewers; she was not, however, handcuffed
while being interviewed.
      At secondary, to CBP Agent Leza, Delgado continued to claim the children
were her son and nieces. The Agent also talked to the children, who admitted
to being Mexican citizens and stated they did not know Delgado. Because the
Agent was nearing the end of his midnight-to-8:00 a.m. shift, he prepared a
memorandum for Agents for the incoming shift. This memorandum contained
“just a breakdown of what the subjects ha[d] told” him and raised the possibility
of a “document false claim”.
      When CBP Agent De Leon arrived to work the shift beginning at 8:00 a.m.,
she read Agent Leza’s memorandum. From 8:10 a.m. to 8:25 a.m., Agent De
Leon spoke to the children, who again stated: they did not know Delgado; and
the birth certificates were not theirs. In addition, the children told the Agent
that Delgado had provided the birth certificates and had instructed them to
memorize the information they contained.
      From 8:45 a.m. to 9:00 a.m., Agent De Leon interviewed Delgado for the
first time.   Agent De Leon was accompanied by another Agent (both were



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uniformed and carried firearms); the door to the interview room was always
open; Delgado was not handcuffed; and, a Miranda warning was not given.
         Because the children’s statements conflicted with Delgado’s prior
statement that “one of them was her son, and . . . two of them were her nieces”,
Agent De Leon asked Delgado about her relationship with the children. This led
to Delgado’s first confession; she explained she had been hired, for profit, to
transport the children into the United States.
         Upon hearing this first confession, Agent De Leon immediately left
Delgado. Consistent with CBP procedure, she prepared memoranda notifying
prosecution officers that a crime had been committed.           Agent De Leon’s
supervisor advised her that they would “process the case”, i.e., prosecute
Delgado.
         At 10:50 a.m., Agent De Leon returned to Delgado and provided a
Miranda warning. Delgado agreed to answer questions without a lawyer and
gave a second confession, providing “thorough information in regards to the
kids”.
         Delgado was charged with three counts of bringing, and attempting to
bring, illegal aliens into the United States for commercial advantage and private
financial gain. See 8 U.S.C. § 1324. She moved to suppress both confessions but
did not testify at the suppression hearing. After the district court denied the
suppression motion, Delgado entered a guilty plea, conditioned on the right to
appeal the motion’s denial.       She was sentenced, inter alia, to 36 months’
imprisonment.
                                         II.
         Legal questions related to the denial of a suppression motion are reviewed
de novo; factual findings, only for clear error. E.g., United States v. Nunez-
Sanchez, 478 F.3d 663, 666 (5th Cir. 2007). “In reviewing findings of fact, we



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view the evidence in the light most favorable to the party prevailing below.” Id.
(quoting United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005)).
      In denying the suppression motion, the district court found: although it
was a “close call”, Delgado was not subject to custodial interrogation; and, no
improper, deliberate two-step strategy, as discussed infra, was used to obtain the
confessions. Delgado challenges both findings.
      The suppression hearing focused primarily on whether Delgado was
subject to custodial interrogation when she gave the first, unwarned, confession.
Nevertheless, it is unnecessary to decide that issue because the outcome turns
on whether Delgado’s second, warned, confession was voluntary and not part of
a deliberate two-step strategy. See Nunez-Sanchez, 478 F.3d at 666 (“[W]e ‘may
affirm the district court’s decision on any basis established by the record.’”
(quoting United States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006))).
      Missouri v. Seibert, 542 U.S. 600 (2004), and Oregon v. Elstad, 470 U.S.
298 (1985), provide the relevant analytical framework. “Seibert requires the
suppression of a post-warning statement only where [the below-described]
deliberate two-step strategy is used and no curative measures are taken; where
that strategy is not used, ‘the admissibility of postwarning statements continues
to be governed by the principles of Elstad.’” Nunez-Sanchez, 478 F.3d at 668
(internal alterations omitted) (quoting United States v. Courtney, 463 F.3d 333,
338 (5th Cir. 2006)). This “deliberate two-step strategy” involves an interrogator
“rel[ying] on the defendant’s prewarning statement to obtain the postwarning
statement used against her at trial[,] . . . [by] confront[ing] the defendant with
her inadmissible prewarning statements and push[ing] her to acknowledge
them.” Seibert, 542 U.S. at 621 (Kennedy, J., concurring in judgment).
                                       A.
      There is no evidence that Agent De Leon (or any other CBP Agent) used
“a two-step interrogation technique . . . in a calculated way to undermine the

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Miranda warning”. See Seibert, 542 U.S. at 622 (Kennedy, J., concurring in
judgment) (setting out the controlling test, see Courtney, 463 F.3d at 338); see
generally Miranda v. Arizona, 384 U.S. 436 (1966). When she first interviewed
Delgado, Agent De Leon suspected, but had no knowledge of, a crime. She did
not question Delgado again until after Delgado had been advised about, but had
waived, her Miranda rights.
      In sum, “there was nothing in the circumstances or the nature of the
questioning to indicate that coercion or other improper tactics were used. [The]
evidence [reflects] that [Delgado] was calm and cooperative, and [Agent De Leon]
did not act with aggressiveness or hostility”.    Nunez-Sanchez, 478 F.3d at
668–69. The principles of Elstad, therefore, govern this case. See id. at 669.
                                      B.
      Under Elstad, “a suspect who has responded to unwarned yet uncoercive
questioning is not thereby disabled from waiving [her] rights and confessing
after [s]he has been given the requisite Miranda warnings”. Elstad, 470 U.S. at
318; see also Nunez-Sanchez, 478 F.3d at 668 (holding a post-warning confession
is admissible even where there is a “previous[] . . . pre-warning confession, so
long as the pre-warning confession was voluntary”).             “A subsequent
administration of Miranda warnings to a suspect who has given a voluntary but
unwarned statement ordinarily should suffice to remove the conditions that
precluded admission of the earlier statement.” Elstad, 470 U.S. at 314.
      “[T]he finder of fact must examine the surrounding circumstances and the
entire course of police conduct with respect to the suspect in evaluating the
voluntariness of [her] statements”. Id. at 318. The surrounding circumstances,
as discussed supra, show that the district court did not clearly err in finding
Delgado’s first confession, although unwarned, was voluntary.
      Delgado’s second, post-warning confession was consistent with the first.
It was given after a valid waiver of her properly administered Miranda rights

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and was also voluntary. As noted, Delgado was never handcuffed while being
interviewed; the door to the interview room was always open; and she was not
subjected to extended interviews. In short, there are “no facts indicating that
coercive tactics were used in obtaining the second confession and all evidence
suggests that the tone of the questioning was entirely conversational”. Nunez-
Sanchez, 478 F.3d at 669. In this regard, although Delgado was not, of course,
required to testify at the suppression hearing, her decision not to do so
undermines her contention that the district court clearly erred in crediting
Government witnesses’ testimony that showed her confessions were voluntary.
See United States v. Mendez, 102 F.3d 126, 131 (5th Cir. 1996) (noting that
“because [the defendant] did not testify at the suppression hearing there was no
evidence” in favor of suppression (citing United States v. Mendez, 27 F.3d 126,
131–32 (5th Cir. 1994))).
      The district court properly denied the motion to suppress the second
confession. Therefore, Delgado’s conditional plea agreement stands.
                                      III.
      For the foregoing reasons, the judgment is AFFIRMED.




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