Unpublished Disposition, 872 F.2d 431 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Turibio Rodriguez-Mendoza was convicted after a jury trial of aiding and abetting the distribution of more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a) (1), 841(b) (1) (B), and of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846. Appellant challenges the district court's determination that he effectively waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and the consequent admission of his self-incriminating responses to custodial interrogation. We review for clear error, United States v. Doe, 819 F.2d 206, 209 (9th Cir. 1985), and affirm.

"Whether there has been a valid waiver depends on the totality of the circumstances, including the background, experience, and conduct of [the] defendant." United States v. Bernard S., 795 F.2d 749, 751 (9th Cir. 1986) (citing North Carolina v. Butler, 441 U.S. 369, 374-75 (1979)). " [A]ny language difficulties encountered by the defendant are considered to determine if there has been a valid waiver." Id.; see also United States v. Heredia-Fernandez, 756 F.2d 1412, 1415 (9th Cir. 1985). "There is a presumption against waiver, and the burden of showing a valid waiver is on the prosecutor." Bernard S., 795 F.2d at 752.

This record is more than sufficient to support the district court's determination that appellant possessed sufficient understanding to effectively waive his Miranda rights even though he was advised of those rights in English, rather than Spanish, his native tongue. Both the informant and DEA Agent Rose testified they had negotiated with appellant in English and that appellant had no difficulty communicating with them. RT 81:66-67; RT 82A:22-23. Appellant was informed of his Miranda rights in English three times and each time indicated in English that he understood those rights. RT 82A:14-15, 20-22. While he was being transported to the police station, appellant volunteered street directions in English to assist an officer who was unfamiliar with the route. Id. at 14. After the third Miranda warning, appellant stated in English that he understood his rights and that he wanted to make a statement. Id. at 20. His subsequent incriminating statements were also made in English. Id. at 20-22. Appellant did not evidence difficulty comprehending those who spoke with him and he did not request an attorney or an interpreter at any time.

Accordingly, appellant's claim that his limited English proficiency invalidates the waiver fails. See, e.g., Bernard S., 795 F.2d at 752-53 (waiver valid despite Apache speaker's limited English proficiency); Heredia-Fernandez, 756 F.2d at 1415-16 (waiver effective because Spanish-speaking defendant was competent in English).

AFFIRMED.