                                                                      FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       MAR 7 2002
                                   TENTH CIRCUIT
                                                                  PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                          No. 01-2041
 v.                                                (D.C. No. CR-00-941-MV)
                                                       (D. New Mexico)
 TRAVIS SEAN BOYD,

          Defendant - Appellant.



                             ORDER AND JUDGMENT *


Before SEYMOUR and HOLLOWAY, Circuit Judges, and VAN BEBBER,
Senior District Judge. **


      Travis Sean Boyd pled not guilty to all counts of an indictment charging

conspiracy and possession with intent to distribute crack cocaine, tampering with

a witness, and carrying a firearm in relation to a drug trafficking crime.

Following a jury verdict of guilty as to the first two charges, the district court

sentenced Mr. Boyd to 300 months imprisonment for each count of the


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

       The Honorable G. Thomas Van Bebber, Senior United States District
      **

Judge for the District of Kansas, sitting by designation.
conviction. Mr. Boyd appeals the district court’s denial of his motion to suppress

self-inculpatory statements, asserting that his waiver of Miranda rights was

invalid and that his subsequent self-incriminating statements were not voluntary

and were the product of delay. We affirm. 1

      At 10:00 p.m. on October 7, 1999, local officials arrested Mr. Boyd in

Carlsbad, New Mexico pursuant to a municipal warrant for two misdemeanor city

code violations, possession of marijuana and driving with a suspended license.

He was advised orally and in writing of his Miranda rights and signed an “advice

of rights” form at 10:42 p.m. Thereafter, local and federal authorities questioned

him regarding his possible involvement in felony drug-related activities and a

death threat made to a drug task force agent. During the interrogation, Mr. Boyd

made both oral and written inculpatory statements.

      In the early morning hours of October 8, authorities transported Mr. Boyd

to a local motel after he agreed to act as a police informant. While there, he

completed his written statement to authorities. Mr. Boyd appeared in municipal

court in Artesia, New Mexico that afternoon on the charges for which he was

arrested. Federal agents took custody of him once he was transported back to the

motel. The following evening, authorities transported him to Las Cruces, New

Mexico for his scheduled appearance before the federal magistrate on October 10.


      1
       After a complete review of the record, we decline to grant Mr. Boyd’s
pro se Motion to Relieve Court-Appointed Counsel.

                                        -2-
      On the day of his appearance, the government filed a criminal complaint

charging Mr. Boyd with certain federal offenses. He entered a guilty plea, which

was later withdrawn following the appointment of new counsel by the district

court. The government then filed a four-count indictment, to which Mr. Boyd

pled not guilty as to all counts. After an evidentiary hearing, the district court

denied Mr. Boyd’s motion to suppress his inculpatory statements.

      Upon appeal of the denial of a suppression motion, we review the district

court’s factual findings for clear error, taking the evidence in the light most

favorable to the district court’s ruling. See United States v. Toro-Pelaez, 107

F.3d 819, 826 (10 th Cir. 1997). Ultimate determinations of waiver and

voluntariness present questions of law subject to review de novo. See id.

(waiver); United States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir. 1996)

(voluntariness). Procedural safeguards set forth in Miranda are designed to

protect a suspect’s Fifth Amendment privilege against self-incrimination during a

period of custodial investigation. See Moran v. Burbine, 475 U.S. 412, 420

(1986). A valid waiver of this privilege must be “knowing, voluntary and

intelligent,” meaning it is “the product of a free and deliberate choice rather than

intimidation, coercion, or deception,” and is “made with a full awareness of both

the nature of the right being abandoned and the consequences of the decision to

abandon it.” Id. at 421. The government must prove the validity of a waiver by a




                                          -3-
preponderance of the evidence. See Colorado v. Connelly, 479 U.S. 157, 168

(1986).

      Mr. Boyd argues that his written waiver of Miranda rights was invalid. He

asserts that it was not knowing, voluntary or intelligent because the true reason

officers took him into custody was to question him about the suspected federal

felony charges, not the minor misdemeanors for which he was arrested. However,

the state of mind of the police is irrelevant to determining whether the suspect

made a valid waiver. See id. at 423. Moreover, an express written statement of

waiver, such as the “advice of rights” form signed by Mr. Boyd, is strong proof of

the waiver’s validity. See North Carolina v. Butler, 441 U.S. 369, 373 (1979). In

light of this precedent, as well as our review of the record, we find no error in the

district court’s determination that Mr. Boyd effected a valid written waiver.

      Nor are we persuaded the district court erred in finding that Mr. Boyd’s

subsequent incriminating oral and written statements were voluntary. To be

voluntary, a confession must be “the product of an essentially free and

unconstrained choice by its maker[.]” Schneckloth v. Bustamonte, 412 U.S. 218,

225 (1973). Both the characteristics of the accused and the circumstances of the

interrogation are relevant to this determination. See id. at 226. A review of the

record under the totality of the circumstances standard supports the district

court’s determination that Mr. Boyd’s statements were voluntary.




                                          -4-
         Finally, we see no error in the district court’s denial of Mr. Boyd’s claim

under 18 U.S.C. § 3501(c). 2 Mr. Boyd urges us to hold that he was in federal

custody from the time the interrogation began on the night of October 7. Even if

we adopted this position, a review of the record shows that Mr. Boyd made the

majority of his inculpatory statements within six hours of his arrest. Moreover,

strict adherence to the six-hour rule in § 3501(c) is not required to render a

confession admissible. See United States v. Glover, 104 F.3d 1570, 1583 (10 th

Cir. 1997) (quoting United States v. Shoemaker, 542 F.2d 561, 563 (10 th Cir.

1976)). 3

         AFFIRMED.

                                                  ENTERED FOR THE COURT
                                                  Stephanie K. Seymour
                                                  Circuit Judge

2
    Section 3501(c) states:
         In any criminal prosecution … a confession made or given by a person
         who is a defendant therein, while such person was under arrest or other
         detention in the custody of any law enforcement officer or law
         enforcement agency, shall not be inadmissible solely because of delay
         in bringing such person before a magistrate ... if such confession was
         made or given by such person within six hours immediately following
         his arrest or other detention: Provided, That the time limitation … shall
         not apply in any case in which the delay … is found by the trial judge
         to be reasonable considering the means of transportation and the
         distance to be traveled to the nearest available such magistrate. . . .
3
 In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court held that
Congress, by enacting § 3501, could not supersede Miranda, a constitutional
decision. Nothing in Dickerson overrules or affects the time limitation specified
in subsection (c) of § 3501.


                                            -5-
