Unpublished Disposition, 902 F.2d 38 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 38 (9th Cir. 1988)

No. 89-10276.

United States Court of Appeals, Ninth Circuit.

Before BEEZER and KOZINSKI, Circuit Judges and KLEINFELD,**  District Judge.


In Commonwealth of the Northern Mariana Islands v. John Doe, No. 87-1108 (9th Cir. Mar. 31, 1988) (memorandum disposition), we remanded Diego Cabrera's second degree murder conviction to the Commonwealth Trial Court for "supplemental findings of fact regarding [the] admissibility of Cabrera's confessions." Id. at 13.1 

It is not disputed that Cabrera first indicated his desire not to talk to the police without his lawyer present, and that he subsequently changed his mind and confessed. Cabrera claims, however, that he did so only after Officer Camacho, the interrogating officer, threatened that his "case might get worse" if he refused to answer any questions. Officer Camacho claims that it was only Cabrera's father, not the police, who told Cabrera to change his mind and consent to questioning.

On remand, the trial court reviewed the transcript of the suppression hearing and heard testimony from Cabrera, Cabrera's father and Officer Camacho. Upon reviewing the evidence, the court found that Officer Camacho did not tell Cabrera that his case would get worse if he refused to be interrogated, and that only Cabrera's father urged him to answer questions without his lawyer present.2  The Appellate Division held that these findings were not clearly erroneous, and we agree. See United States v. Brady, 819 F.2d 884, 886 (9th Cir. 1987), cert. denied, 484 U.S. 1068 (1988); United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir. 1985).

As our March 31, 1988, decision resolved in the Commonwealth's favor Cabrera's other challenges to his conviction, we do not address them here.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


The Honorable Andrew J. Kleinfeld, United States District Judge for the District of Alaska, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The Commonwealth Judicial Reorganization Act of 1989, Public Law No. 6-25, Section 3109, does not divest this court of jurisdiction over this appeal. See Wabol v. Villacrusis, No. 87-1736, slip op. at 1807, 1819-23 (9th Cir. Feb. 20, 1990)


" [C]oercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167 (1986) (emphasis added). Thus, that Cabrera's father encouraged him to talk to the police after Cabrera had expressed his desire not to does not constitute a constitutional violation