                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 08 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-50424

              Plaintiff-Appellee,                D.C. No. 3:17-cr-00208-H-1

 v.
                                                 MEMORANDUM*
BEATRIZ MARVIN RAMIREZ-
CARRILLO, AKA Ramirez-Carrillo,
AKA Marvin Beatriz Ramirez-Carrillo,

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   17-50426

              Plaintiff-Appellee,                D.C. No. 3:15-cr-01464-H-1

 v.

BEATRIZ MARVIN RAMIREZ-
CARRILLO, AKA Ramirez-Carrillo,
AKA Marvin Beatriz Ramirez-Carrillo,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                     Marilyn L. Huff, District Judge, Presiding

                      Argued and Submitted December 7, 2018
                               Pasadena, California

Before: RAWLINSON and BEA, Circuit Judges, and SETTLE,** District Judge.

      After arresting Appellant Beatriz Ramirez-Carrillo (“Ramirez”), border

patrol agents first told her that she was facing proceedings for her removal to her

native Mexico, and that she was entitled to the services of an attorney, but at no

cost to the Government. Then, her situation changed. The border patrol agents

told her that she was to be charged with the crime of transporting an illegal alien

into this country, and read her the Miranda rights, including that she could avail

herself of the services of an attorney, at Government expense.

      The issue before us: in view of what the agents first told Ramirez with

respect to her rights in removal proceedings, did the agents’ Miranda warnings

sufficiently explain the effect the change of her situation had as to who would pay

for the attorney’s services?

   1. Whether a Miranda warning was adequate is a legal question we review de

novo. United States v. Connell, 869 F.2d 1349, 1351 (9th Cir. 1989). Relevant

here, Miranda v. Arizona requires law enforcement officers to inform a person in


      **
            The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
                                          2
custody that she has “the right to the presence of an attorney, and that if [she]

cannot afford an attorney one will be appointed for [her] prior to any questioning if

[she] so desires.” 384 U.S. 436, 479 (1966). This warning “must be clear and not

susceptible to equivocation.” United States v. San Juan-Cruz, 314 F.3d 384, 387

(9th Cir. 2002).

      When conflicting sets of rights are given, it does not matter that the Miranda

warnings were correct if the agents did not clarify to the suspect which set of

warnings applied. United States v. Botello-Rosales, 728 F.3d 865, 867 (9th Cir.

2013) (citing San Juan-Cruz, 314 F.3d at 388-89). “The Government should not

presume after having read two sets of contradictory warnings to an individual that

he or she possesses sufficient legal or constitutional expertise to understand what

are his or her rights under the Constitution.” San Juan-Cruz, 314 F.3d at 389.

Indeed, “[w]hen a warning, not consistent with Miranda, is given prior to, after, or

simultaneously with a Miranda warning, the risk of confusion is substantial, such

that the onus is on the Government to clarify to the arrested party the nature of his

or her rights under the Fifth Amendment.” Id. The Government may rectify the

situation by clarifying the agent’s statements or advising the suspect to “disregard

the Administrative Rights in favor of those that were read to [her] under Miranda.”

Id.


                                           3
      Here, border patrol agents did neither. Agent Rodriguez advised Ramirez of

two sets of rights that conflicted on the issue whether the attorney’s services were

to be paid by the Government. Although Agent Rodriguez attempted to tell

Ramirez that her administrative rights no longer applied after the Government

confirmed it would prosecute her for transporting an illegal alien, his attempts were

unsuccessful.1


      1
      The following excerpt is the Government’s English translation of Agent
Rodriguez’s Spanish conversation with Ramirez:

      AGENT RODRIGUEZ: At the start [of this] you were given an
      advisement of rights in which you ask to return to your country as soon
      as possible. Those rights apply only in immigration procedures for
      deporting you- to deport you from the United States. Now that there’s
      a ch- now, there’s a change in your case, and you’re not going to be able
      to go back to your country now. And that instead of returning to your
      country, you’re going to be prosecuted for federal crimes, you should
      understand that the administrative rights no longer belong [sic]. From
      now on only the criminal rights that follow will apply to your case. Do
      you understand this warning?

      RAMIREZ: No.

      AGENT RODRIGUEZ: Yes. Just the a-administrative notices they
      gave you [sic], right? Or for administrative proceeding [sic] – they no
      longer apply because, well, criminal charges will be brought against you
      for smuggling undocumented [aliens].

      RAMIREZ: . . . So, why? I mean, I didn’t know th- th- those people[.]

      AGENT RODRIGUEZ: Okay. Look, in a second- we’ll able [sic] –
                                                          (continued...)
                                          4
1
 (...continued)
you’ll have the right and I’m going to explain this right to you. . . . We’ll
be able to talk a little more about what- what happened, and if you want,
but for now this- this notice is to notify you that any administrative, uhm,
procedure . . . no longer, no longer, uh, you’re now considered and now
criminal charges are going to be filed on you, this will be a criminal
procedure. Do you understand this notification?

RAMIREZ: I understand, officer, but . . . [Crying]

AGENT RODRIGUEZ: When you got here they did up some simple
documents, [UI] just a- a paragraph for you to choose whether you
wanted to return to Mexico as soon as possible or with this case in- or
against a judge [sic], Ok? That was just the- an other [sic] form and they
already explained it, so that’s to say that we won’t be doing the
procedures [sic] . . . that way and we’re going to talk about another way
we’ll be doing your case [sic]. . . . But do you understand what was just
explained to you?

RAMIREZ: Well, more or less what the officer told me just now, I
don’t know what’s going on. I’m in shock.

AGENT RODRIGUEZ: . . . Right now I need for you to pay a little bit
of attention to me. . . . Calm down a little bit, Ok? And pay attention in
[sic] what I’m reading to you and what I’m explaining to you and then
at that time we can proceed and I’ll explain to you more about your
rights, Okay? Because there are several rights that you- that you belong
to [sic] Okay? . . . I cannot- cannot proceed un- until you-you explain to
me [sic] if you’ve understand me- if you understand your rights, okay?

RAMIREZ: Yes, officer.

AGENT RODRIGUEZ: As we’re explaining, all we’re saying here is
that any administrative procedure that you were going to seek, that will
no longer-it-it you’ll no longer be granted that. At this time, I’m telling
                                                                   (continued...)
                                     5
At best, Agent Rodriguez made it clear to Ramirez that she could no longer return

to Mexico because she was about to be prosecuted in the United States. But he

never clarified that this change in proceedings accompanied a change in her right

to consult an attorney free of charge, nor did he make it clear that she should




      1
       (...continued)
      you, because of the fact that we arrested you for contraband of
      undocumented [persons], so now we’re going to proceed with a criminal
      procedure. Charges are being brought against you- criminal charges.
      Okay?

      RAMIREZ: Yes.

      AGENT RODRIGUEZ: So this is just notifying you that any procedure
      that you requested, administrative, will no longer be granted to you.
      We’re going to proceed then with criminal charges. Understand?

      RAMIREZ: Well, yes . . .

Agent Rodriguez then read Ramirez her Miranda rights from a pre-printed form in
Spanish, which Ramirez subsequently signed.


                                          6
disregard her administrative rights in favor of her Miranda rights.2 Thus,

Ramirez’s Miranda warnings were inadequate, and the district court erred in

denying her motion to suppress her subsequent statements.

   2. We review statements admitted in violation of Miranda for harmless error.

United States v. Butler, 249 F.3d 1094, 1098 (9th Cir. 2001). “[B]efore a federal

constitutional error can be held harmless, the court must be able to declare a belief

that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S.

18, 24 (1967). This court has “held erroneous admission of inculpatory statements

harmless under the Chapman standard only where the [statements] did not go to

the heart of the case.” United States v. Williams, 435 F.3d 1148, 1163 (9th Cir.

2006).



      2
        Although Agent Rodriguez told Ramirez that she faced criminal charges
and read her the Miranda rights, he never advised her that she should disregard her
administrative right to consult an attorney at her own expense in favor of her
Miranda right to consult an attorney free of charge. The closest he got to this was
when he told Ramirez: “[Y]ou should understand that the administrative rights no
longer belong [sic]. From now on only the criminal rights that follow will apply to
your case. Do you understand this warning?” Ramirez responded, “No.” Merely
mentioning the bureaucratic phrase “administrative right” does not give context to
that term, and that should have been obvious to the agent from Ramirez’s answer
to his question whether she understood his “warning.” Because the burden is on
the Government “to clarify to the arrested party the nature of his or her rights under
the Fifth Amendment,” San Juan-Cruz, 314 F.3d at 389, Agent Rodriguez’s further
unsuccessful attempts to clarify his initial statement to Ramirez were insufficient.


                                          7
      Here, “the heart of the case” was whether Ramirez knowingly helped

smuggle Marisol Santiago into the United States. Ramirez’s defense was premised

on her being in the wrong place at the wrong time. She argued that she merely

stopped at Border Field State Park to use the restroom on her way home and

Santiago jumped into her vehicle without her knowledge. At trial, the Government

used Ramirez’s post-Miranda statements “to show inconsistencies in her claim”

that she had stopped at the park for innocent reasons and “that her claimed visit to

a nearby church was ‘suspect.’” It also “challenged her story about looking for

potential clients for her tamales business,” and “characterized her account of that

morning’s travels as ‘incoherent.’” These statements went to the heart of

Ramirez’s defense because the Government implied that Ramirez’s story lacked

credibility and she was aware that Santiago jumped into her car.

      Further, the material difference between Ramirez’s first and second trials

was the Government’s use of her post-Miranda statements. The first trial resulted

in a hung jury while the second trial resulted in Ramirez’s conviction. This is

additional evidence that the district court’s error was not harmless beyond a

reasonable doubt. See United States v. Schuler, 813 F.2d 978, 982 (9th Cir. 1987)

(“[P]articularly in view of the prior hung jury, we conclude that the error was not

harmless beyond a reasonable doubt.”). Therefore, we reverse Ramirez’s


                                          8
conviction and remand to the district court for proceedings consistent with this

disposition.

REVERSED and REMANDED.




                                          9
                                                                           FILED
                                                                            JAN 8 2019
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

United States v. Ramirez-Carrillo, Case Nos. 17-50424 and 17-50426
Settle, District Judge, concurring:

      I concur in the disposition. I write separately only to express my opinion that

the record also reflects that Ramirez likely did not understand her rights because

she demonstrated confusion, she was crying during the officer’s attempted

explanation, and she stated that she was “in shock.” I believe these facts further

support the conclusion that the border patrol agent failed to adequately clarify

Ramirez’s rights.
                                                                               FILED
                                                                                JAN 08 2019
                                                                           MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS



United States v. Ramirez-Carrillo, Case Nos. 17-50424 and 17-50426
Rawlinson, Circuit Judge, dissenting:

      I respectfully dissent. As I read United States v. San Juan-Cruz, 314 F.3d

384, 389 (9th Cir. 2002), the Miranda1 violation occurred in that case because the

border patrol agent failed to “rectify” the situation arising when an undocumented

person is first advised of rights that apply in the civil administrative context, but is

later determined to be subject to criminal prosecution. Id; see also id. at 386. The

panel explained that the border patrol agent could have “rectified the situation

easily by clarifying his statements or advising San Juan to disregard the

Administrative Rights in favor of those that were read to him under Miranda.” Id.

at 389 (emphasis added). The majority opinion addresses only the “clarifying”

direction in San Juan. See Majority Opinion, p.2 (framing the issue as whether

“the agents’ Miranda warnings sufficiently explain the effect the change of her

situation had as to who would pay for the attorney’s services”). This framing of

the issue makes no mention of the other basis upon which the agent could have

“easily rectified” the situation: advising the petitioner “to disregard the

Administrative Rights in favor of those that were read to [her] under Miranda.”

      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                            1
San Juan, 314 F.3d at 389.

      Once it was determined that the petitioner’s situation had changed, in that

she was to be charged with transporting an illegal alien into the country, border

patrol agents advised the petitioner that the Administrative Rights no longer

applied, and that she now faced criminal charges governed by the Miranda

warning that was given. The record is irrefutable that she understood the change,

because once she realized that she now faced criminal charges, she began to weep.

The Miranda warning included an advisement that the petitioner could avail

herself of the services of an attorney at Government expense. Because this

advisement satisfied the “advising” direction of San Juan, see 314 F.3d at 389, I

would affirm the judgment of the district court.




                                          2
