Unpublished Disposition, 904 F.2d 711 (9th Cir. 1988)

MEMORANDUM^** 

Appellants Homer B. and Ernest J., both juveniles, seek to suppress statements introduced at their trial, arguing that they did not knowingly and voluntarily waive their Miranda rights before making them. Appellant Homer B. also contends that even if his confession was knowing and voluntary, there was insufficient evidence to corroborate it. We find that Homer and Ernest knowingly and voluntarily waived their Miranda rights before giving their statements.¹  We also find that there was sufficient evidence to corroborate Homer's confession.

This case involves the gang rape of a fourteen-year-old Navajo Indian girl, on March 27, 1988, in Gap, Arizona. The victim testified that she was raped at least three times, but that she became unconscious during the third rape. Wilfred B. (Homer's B.'s brother) testified for the prosecution that he and four others, including Ernest J., each raped the victim. Medical examinations also proved that she was repeatedly raped. Both Ernest J. and Homer B., who the victim testified were at the scene, as well as all others involved, are Navajo Indians. Homer was fifteen years old at the time, and Ernest was seventeen years old.

On April 6, 1988, Investigator Sammy Ahkeah interviewed Homer at his school and Homer responded to questions about the rape. On April 10th, Ahkeah stopped by Homer's parents' home and told them that he needed to talk to Homer and his brother Wilfred because they were "suspected in this alleged sexual assault." On April 18, the parents went with Homer to the Bureau of Indian Affairs (BIA) Criminal Investigations Office. Ahkeah showed them his credentials and told the parents that Homer was a suspect in an alleged sexual assault. He also told them that if Homer talked to him about this he could be prosecuted. His parents, who are sheepherders on an Indian reservation, do not speak English, only Navajo. When Ahkeah communicated with Homer's parents, he spoke in Navajo. Ahkeah told Homer that he was not under arrest, and he gave both Homer and his parents a standard interrogation-of-rights form to read. Ahkeah then explained these rights to them in both English and Navajo. Homer then asked Ahkeah what the word "coercion" meant, and Ahkeah told Homer in English that it was another word for force. Ahkeah also spelled out force on the waiver form and initialed it. Homer and his parents then agreed to waive his rights, and Homer signed the written form.

Homer gave Ahkeah an oral statement, partly in English and partly in Navajo, in which he confessed to having sexual intercourse with the victim at the time of the rape. Ahkeah wrote down in English what Homer told him, as he told it to him. Homer then read the statement in Ahkeah's presence. Ahkeah testified that Homer did not have any difficulty in reading the statement, and that when Homer was through reading it, Ahkeah told him that he had to sign it if it was the statement he had made. Homer then signed it. His parents signed as witnesses after Ahkeah read the statement to them in Navajo. The interview with Homer took thirty minutes.

During the investigation, Ahkeah also spoke twice with appellant Ernest J. The first conversation took place on April 8th, 1988, five miles east of Gap on a dirt road. Loretta J., Ernest's adult sister, was present at this interview. Ahkeah asked Loretta where Ernest's parent were and Loretta told Ahkeah that his parents were dead. She also represented to Ahkeah that she was Ernest's legal guardian.²  The conversation took place in Ahkeah's car and the conversation among the three was mostly in Navajo. Ahkeah testified that at this time Ernest was not placed under arrest. While in Ahkeah's car, Ernest was advised of his rights both in Navajo and English using the standard interrogation/advice form. At this time, Ernest asked what the word "coercion" meant and Ahkeah responded, as he did later with Homer, that it was another word for force. Ahkeah also wrote the word force on the waiver form and initialed it. Ernest then told him that he understood the explanation and that he understood his rights. Ernest signed a written waiver and gave Ahkeah a statement which Ahkeah wrote down in English and read back to him. The statement was that Ernest did not rape the victim, though he was asked to do so by his friends. Ernest and Loretta signed the statement.

The second interview with Ernest took place at Loretta's home in Gap on April 18th. Lorreta was again present. Ahkeah testified that he told Ernest that he was free to go if he wanted to. Ahkeah advised Ernest of his rights in the same manner as in the first meeting. Ernest said he understood his rights and then signed the written waiver. Ernest gave a statement to Ahkeah orally which Ahkeah wrote down and read back to Ernest in both Navajo and in English. The statement included a confession that he tried to rape the victim but that he backed out because he could not get an erection. Ernest and Loretta then signed the statement.

On September 14, 1988, an information was filed charging the appellants with two counts of juvenile delinquency: aggravated sexual abuse, and sexual abuse of a minor. The appellants were tried without a jury. At the conclusion of the trial, the district court denied a motion to suppress the appellants' statements, ruling that they were not made in a custodial setting and that they were given voluntarily. Homer was found guilty of 18 U.S.C. §§ 1152 and 2241(a) (1) and (2)--Crime on an Indian Reservation and Aggravated Sexual Abuse, as well as 18 U.S.C. §§ 5031-5037--Juvenile Delinquency. He was sentenced for a term of two years and ordered to pay restitution in the amount of $120. Ernest was convicted of Aggravated sexual abuse. He was sentenced to imprisonment until the age of 21, and ordered to pay restitution in the amount of $120.

The question "whether the accused waived his rights 'is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.' " Fare v. Micheal C., 442 U.S. 707, 724 (1979) (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). The court must look at the "totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel." Id. at 725. In Fare, the Court held that this "totality of the circumstances" test applies to juveniles. Courts are to consider "the juvenile's age, experience, education, background, and intelligence, and ... whether he has the capacity to understand the warnings given to him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights." Id. In In re Gault, 387 U.S. 1, 55 (1967), the Court admonished that "the greatest care must be taken to assure that [a minor's] admission was voluntary."

Homer first argues that because of the language barrier, his constitutional rights could not validly be waived. We rejected a similar argument in United States v. Bernard S., 795 F.2d 749 (9th Cir. 1986). In Bernard S., a seventeen year old Indian juvenile who was convicted of assault argued that his waiver was invalid. First, he argued that he had a limited knowledge of English, and that his rights were not explained to him in Apache. He testified that he neither read nor wrote English, but he admitted that he studied English through the seventh grade and that he answered the officer's questions in English. Most importantly, when the officer explained his rights in English, the defendant said that he understood his rights. Id. at 752. The officer also made sure that his mother understood his rights. Subsequently, the defendant said he was willing to waive his rights and he signed a written waiver form. The court found that, based on these facts, the defendant validly waived his rights despite any language difficulties. Id.; see also United States v. Gonzales, 749 F.2d 1329, 1336 (9th Cir. 1984) ("The court and jury also heard ample testimony concerning both [the agent's] Spanish ability and [the Spanish-speaking defendant's] English ability, and that evidence would support a determination that the two understood each other.")

In the instant case, there was a great deal of evidence that Homer and his parents understood his rights. Homer and his parents were given a copy of the "Interrogation--Advice of Rights" form to read, and Investigator Ahkeah read and explained it to them in both English and in Navajo. Homer then asked Ahkeah what the word "coercion" meant and Ahkeah told him that it meant "force." In United States v. Doe, 787 F.2d 1290 (9th Cir. 1986), we found a waiver valid by a seventeen year old who also asked what the word "coercion" meant. We found this fact persuasive, stating, "he was intelligent and aware enough to pick out the word 'coercion' and ask how to pronounce it and what it meant." Id. at 1293. After Ahkeah explained that coercion meant force, Homer and his parents then all agreed to waive his rights, and Homer signed the advice of rights form. Homer, who had studied through the seventh grade and was then in eighth grade, next gave a statement to Ahkeah in both Navajo and English. In this statement he confessed to having sex with the victim during the gang rape. Ahkeah wrote down the statement in English and read it back to Homer and his parents in both Navajo and English. Homer then signed the statement as being true and accurate. Under these facts, we hold that the language barrier did not prevent Homer from understanding his rights under Miranda.

Homer's second argument is that the district court did not adequately consider his youth. Bernard S. also addressed this issue. In Bernard S., we first cited Fare as authority that the "totality of the circumstances" test applies to juveniles. Bernard S., 795 F.2d at 752-53. Next we found that the record did not indicate that the defendant's age negated his waiver. We were persuaded by the fact that the agent carefully explained each right individually, the defendant at no time indicated that he did not understand, and the defendant signed a written waiver.³  See also Winfrey v. Wyrick, 836 F.2d 406 (8th Cir. 1987) (valid waiver from 17 year old with low IQ), cert. denied sub nom. Winfrey v. Armontrout, 109 S. Ct. 91 (1988); Doe, 787 F.2d 1290 (valid waiver from juvenile in eleventh grade); Vance v. Bordenkircher, 692 F.2d 978 (4th Cir. 1982) (valid waiver from 15 year old with IQ of 62, no lawyer or parent present), cert. denied, 464 U.S. 833 (1983).

Homer's case is again difficult to distinguish from Bernard S. The only time Homer gave any indication that he did not understand was when he asked what "coercion" meant, and, as noted above, the fact that he asked this question suggests that his waiver was knowing. See Doe, 787 F.2d at 1293. Accordingly, we hold that despite Homer's youth and inexperience, the district court did not err in finding that he knowingly and voluntarily waived his Miranda rights.

The analysis above regarding Homer's waiver applies as well to Ernest's two waivers (one at the dirt road, one at his sister's home). In fact, Ernest's case is less compelling because he was seventeen, two years older than Homer. His rights also were explained in both English and Navajo. Like Homer, Ernest asked what "coercion" meant and Ahkeah explained it meant force. "Force" was also written on Ernest's April 8th waiver form and was initialed by Ahkeah. Ahkeah testified that Ernest and Loretta (his adult sister who was present at the time) understood the rights explained. Finally, like Homer, Ernest signed a written waiver before giving each statement. Ernest, however, like Homer, had no prior contact with the police, and his education was minimal. Nevertheless, for the reasons discussed in the analysis of Homer's waiver, and primarily because of our decisions in Bernard S. and Doe, we also hold that Ernest validly waived his Miranda rights at both interviews.

Homer's final argument is that, even if his confession is admissible under Miranda, there is not enough independent evidence to link him to the crime. This argument is without merit.

A defendant's post-offense confessions must be corroborated with independent evidence in order to assure reliability and truthfulness. See Smith v. United States, 348 U.S. 147, 152-53 (1954) (purpose "is to prevent 'errors in convictions based upon untrue confessions alone' ") (quoting Warszower v. United States, 312 U.S. 342, 347 (1941)); Wong Sun v. United States, 371 U.S. 471, 488-89 (1963); United States v. Taylor, 802 F.2d 1108, 1116 (9th Cir. 1986), cert. denied, 479 U.S. 1094 (1987). In the instant case, there was substantial evidence establishing that the crime occurred and placing Homer at the scene. Homer does not dispute that the victim was raped. In fact, Benally's opening brief states, " [t]he medical evidence supported multiple rapes." Moreover, the victim testified that Homer was present during the first series of rapes. Homer concedes as much. This evidence is sufficient to serve as corroboration for his confession. The confession was therefore properly admitted.

AFFIRMED.