Unpublished Disposition, 935 F.2d 277 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 277 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Tomas VEGA-ALVAREZ, Defendant-Appellant.

No. 90-50247.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1991.Decided June 4, 1991.

Before BEEZER, CYNTHIA HOLCOMB HALL and TROTT, Circuit Judges.


MEMORANDUM* 

Tomas Vega-Alvarez appeals his conviction for conspiracy to possess with intent to distribute cocaine, and possession with intent to distribute cocaine. He contends that incriminating statements he made during his arrest were not preceded by Miranda warnings, and that the statements were involuntary in any event.

FACTS AND PROCEEDINGS BELOW

The following facts are not in dispute. On August 25, 1989, at approximately 5:00 a.m., six police officers with a search warrant arrived at Vega-Alvarez's home and demanded to be let in. Vega-Alvarez opened the door, was made to lie face down, and was handcuffed. The police made a security search of the premises, ordering Vega-Alvarez's family out of their bedrooms and into the living room. Meanwhile, two hundred kilograms of cocaine were found in the garage.

Officer Dominguez and Special Agent Debevoise led Vega-Alvarez to a rear bedroom to question him. Vega-Alvarez speaks Spanish and very little English. Officer Dominguez, who speaks Spanish fluently, conducted the interview. Vega-Alvarez related that he was the only person in the house who knew about the cocaine, and admitted he had been paid $10,000 to store it. Although Dominguez possessed a Miranda rights waiver form written in Spanish, he did not ask Vega-Alvarez to sign it.

The suppression hearing produced the following divergent stories. Vega-Alvarez asserted the officers attempted to force open the door as he was opening it, and that they entered with guns drawn, frightening him and his family. He said he was then interrogated without being informed of his right to remain silent. Only after the interview did one of the other officers tell him that he did not have to talk if he did not want to. During the interview, he claimed, Officer Dominguez told him (1) "You will talk the easy way or the hard way," and (2) that if he did not talk he would get fifteen years. These statements, and the violent nature of the raid, made Vega-Alvarez fear for himself and his family, and therefore he told the officers what he thought they wanted to hear.

By contrast, Officer Dominguez testified that he informed Vega-Alvarez of his rights prior to the interview, reading them in Spanish from a card issued to him by the South Gate Police Department. As Dominguez read the rights, Vega-Alvarez indicated he understood them by responding "Si" and by nodding. When Dominguez asked if he still wished to speak to the officers, Vega-Alvarez replied "Si." The entire interview lasted ten minutes and was conducted in a calm, non-threatening manner. Dominguez maintained he did not make either of the threats attributed to him. Agent Debevoise testified that, although she does not speak Spanish, it appeared to her that Dominguez read Vega-Alvarez his rights before questioning him.

The district court criticized Dominguez for not obtaining a written waiver, but denied Vega-Alvarez's suppression motion, finding as follows:

I'm going to deny the motion. I'm going to find that I accept the testimony of Officer Dominguez as corroborated in part by Agent Debevoise here; that there was no threat made to Mr. Vega, either fifteen years in prison or about talking the hard way; that the Miranda rights were read; and that the interview was conducted in a non-threatening, low-key manner as testified to by both the Agent and the Officer; that Miranda Warnings were given, were accepted, and that the statement thereafter made was voluntary.

Vega-Alvarez was convicted by a jury of conspiracy to possess with intent to distribute cocaine, and possession with intent to distribute cocaine. See 21 U.S.C. §§ 846, 841(a) (1). He timely appeals.

ANALYSIS

* Whether the Miranda Rights Were Read and Validly Waived

Vega-Alvarez claims he was not advised of his Miranda rights prior to questioning, and that, even if he was, he did not validly waive them. We review for clear error the district court's findings to the contrary. See United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir. 1988).

Vega-Alvarez's claims are without merit. The district court found Dominguez read Vega-Alvarez his rights and that he knowingly and voluntarily waived them. These findings were supported by the testimony of Officer Dominguez and Agent Debevoise, which the court found credible. The fact that Dominguez did not obtain a written waiver is not determinative. See North Carolina v. Butler, 441 U.S. 369, 373 (1979). Vega-Alvarez's subjective assertions of fear and confusion need not have been credited.

Vega-Alvarez asks us to look at the particular facts and circumstances of his background and experience in determining whether he validly waived his rights. He explains that he is forty-one years old, he had never before been questioned by the police, and he does not speak English. Vega-Alvarez's age is of no consequence. The fact that he speaks little English also is irrelevant because he admitted he understood Officer Dominguez's Spanish perfectly well. Finally, the fact that he had never been questioned before carries little weight. We hold the district court did not err in finding Vega-Alvarez was read his rights and validly waived them.

II

Whether Vega-Alvarez's Statements Were Involuntary

Vega-Alvarez contends his statements were made involuntarily, in violation of the Fifth Amendment. We review de novo whether a defendant's statements were involuntary. Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 3219 (1990). However, we review for clear error the district court's findings of fact regarding a defendant's state of mind and whether he was threatened. United States v. Carrillo, 902 F.2d 1405, 1411 (9th Cir. 1990).

Vega-Alvarez's chief argument is that Officer Dominguez threatened him. Officer Dominguez testified to the contrary, and the district court found him credible. We see no basis for overturning this finding.

Furthermore, the circumstances of the arrest and interrogation, and the facts concerning Vega-Alvarez's personal background, do not indicate Vega-Alvarez's statements were involuntary. We hold Vega-Alvarez's contention is meritless.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3