936 F2d 580 United States v. Chavarin-Medina

936 F.2d 580

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Leonel CHAVARIN-MEDINA, Defendant-Appellant.

No. 90-50181.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 1991.
Decided July 2, 1991.

Before GOODWIN, PREGERSON and ALARCON, Circuit Judges.

1

MEMORANDUM*

2

Leonel Chavarin-Medina appeals his conviction following a jury trial for one count of possession with intent to distribute heroin, in violation of 21 U.S.C. Sec. 841(a)(1), and one count of carrying a firearm in relation to the commission of a narcotics trafficking crime, in violation of 18 U.S.C. Sec. 924(c). Chavarin-Medina's primary contention on appeal is that his entrapment defense was prejudiced when the government impeached him at trial using a prior inconsistent statement he made during an unconstitutional post-arrest interrogation. We remand for further findings of fact.

3

Special agents of the Drug Enforcement Administration (DEA) arrested Chavarin-Medina after determining from surveillance that he had approximately 500 grams of pure black-tar heroin in his possession. During a vehicle search incident to the arrest, the agents retrieved a loaded semi-automatic pistol. One of the agents read Chavarin-Medina his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and transported him to the local DEA office.

4

There, Special Agents Carson Carroll, of the Bureau of Alcohol, Tobacco, and Firearms, and Lois Delaney interrogated Chavarin-Medina, but not before both had obtained an assurance from Chavarin-Medina that he had received and understood his Miranda rights. Chavarin-Medina informed Agent Carroll that he carried the gun in his car for protection. To Agent Delaney, he admitted stealing the heroin.

5

At some point before, between, or after the interviews with Agents Carroll and Delaney, Agent Emanuel Figlia attempted to question Chavarin-Medina. Agent Figlia had been the principal undercover investigator on the case and had pretended to agree to purchase the heroin from Chavarin-Medina. Chavarin-Medina refused to speak to him.

6

Prior to trial, Chavarin-Medina moved to suppress the statements made to Agents Carroll and Delaney, on the ground that they were obtained in violation of his Miranda rights. Chavarin-Medina argued that his poor understanding of English rendered any alleged waiver invalid and that questioning him after he refused to speak to Agent Figlia was improper. Following an evidentiary hearing, the district court denied the suppression motion on the ground that Chavarin-Medina knowingly and intelligently waived his Miranda rights. The district court failed to address Chavarin-Medina's contention that the agents improperly continued to question him after his refusal to speak to Agent Figlia.

7

The Supreme Court has held that a suspect's invocation of his right to remain silent is a request that the government must "scrupulously honor." Michigan v. Mosley, 423 U.S. 96, 104 (1975). Whether Chavarin-Medina invoked his Miranda rights is the preliminary question in this case. The test we apply is well-established: "If [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, 384 U.S. at 473-74.

8

Any number of reasonable inferences, besides not wanting to speak to any agents about anything, can be drawn from Chavarin-Medina's refusal to speak to Agent Figlia. For example, the probable difference between his attitude towards Agent Figlia and his attitude towards Agents Carroll and Delaney--a direct reflection of the fact that, of the three, only Agent Figlia betrayed him--makes it possible, if not likely, that Agent Figlia was the only agent with whom Chavarin-Medina wished not to speak.

9

The ambiguity is compounded by the district court's failure to find, as a factual matter, and the record otherwise fails to show, when Agent Figlia attempted to interrogate Chavarin-Medina. If prior to either or both of the interviews with Agents Carroll and Delaney, his attempt would be significant. The government contends that the attempt happened after the interrogations by Agents Carroll and Delaney or, at any rate, prior to the interview with Agent Delaney. Chavarin-Medina asserts that Agent Figlia attempted to interview him before the other two interviews or, at any rate, immediately after the interview with Agent Carroll. The two versions thus present a critical fact question not decided by the district court.

10

If Agent Figlia attempted to interview Chavarin-Medina after the other agents, then the validity of Chavarin-Medina's alleged invocation is of no consequence because Agent Figlia asked him nothing after he invoked his right to remain silent. If Agent Figlia spoke to Chavarin-Medina before the others, however, the validity and precise meaning of the defendant's invocation must be determined because a valid and unqualified invocation of the right to remain silent followed by further questioning uninitiated by the defendant violates Michigan v. Mosley.

11

The only material evidence on this point comes from the testimony of the interviewing agents. Agent Delaney testified that she was the last to interview Chavarin-Medina and that she did not know whether Agent Figlia interviewed him before or after Agent Carroll. Agent Carroll testified that he believed he was the first to interview Chavarin-Medina but was not certain. Agent Figlia testified that he was probably the last to interview Chavarin-Medina but was certainly not the first.

12

From these statements, one could infer that Agent Carroll's interview preceded Agent Delaney's. Agent Figlia's statement that his was not the first interview does not prove that Agent Carroll's interview preceded his; Agent Carroll's lack of certainty that his interview was first leaves open the real possibility that some other agent present at the DEA offices conducted a prior interview. The evidence that Agent Figlia's interview came after Agent Carroll's is therefore far from clear.

13

The government carries the heavy burden of proving, by a preponderance of the evidence, "voluntariness" because " '[it] is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence....' " Tague v. Louisiana, 444 U.S. 469, 470 (1980) (per curiam) (quoting Miranda, 384 U.S. at 475); Colorado v. Connelly, 479 U.S. 157, 168 (1986). The government has the same burden of proving that post-assertion questioning did not take place. A faithful application of Tague could have led the trial court to conclude that the questioning by Agents Carroll and Delaney took place after Chavarin-Medina had refused to speak to Agent Figlia. We decline, however, to apply Tague for the first time here on appeal.

14

The trial court should have made specific findings on these disputed facts so that it could then take the next step and rule on the legal question: Did Chavarin-Medina assert his Miranda right to remain silent before he was questioned by Agent Carroll?

15

The Judgment is stayed and the cause is remanded to the district court for the necessary findings of fact to support a ruling on the motion to suppress. If the court finds that Chavarin-Medina timely asserted his right to remain silent, then the motion to suppress should be granted, and the judgment vacated by the trial court. Thereafter, at the government's option, the case could be dismissed or retried without his incriminating statements. If the findings of fact support the denial of the motion to suppress, then the stay will be lifted and the defendant can again appeal the judgment to this court. This panel will retain jurisdiction over future appeals.

16

The judgment is VACATED and the cause REMANDED.

*

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