*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 9 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. BENITO NAVARETA-MARES, Defendant-Appellant. No. 99-4011 (D. Utah) (D.Ct. No. 97-CR-410)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

Appellant Benito Navareta-Mares appeals his convict ion and sentence1 Mr. Navareta-Mares’ incarceration in the Salt Lake City jail resulted from

charges unrelated to those at issue here. Hearing testimony shows that prior to the interview, Agent Slaybaugh conducted an internal record check and discovered authorities previously deported Mr. Navareta-Mares’ to Mexico following his conviction for an aggravated felony and illegal reentry into this country. -2- following his conditional guilty plea, and the dist rict court’s decision denying his motion to suppress. We exercise our jurisdiction u nder 28 U.S.C. § 1291 and affirm.

Following a custodial interview where Mr. Navareta- Mares made inculpatory statements and gave a sworn statement, the government indicted Mr. Navareta-Mares for illegal reentry of a deported al ien, following conviction of an aggravated felony under 8 U.S.C. § 1326(b)(2). Sho rtly thereafter, Mr. NavaretaMares moved to suppress his sworn statement and any other statements and evidence obtained as a result of the interview. He premised his motion primarily on his young age of twenty years, alleged lack of e ducation, and limited ability to understand English and Spanish.

Following Mr. Navareta-Mares’ suppression motion, amagistrate judge conducted an evidentiary hearing. Hearing testimony establishes that while incarcerated at the Salt Lake City jail, an Immigration and Naturalization Service Agent conducted a custodial interview with Mr. Nava reta-Mares in Spanish. 12 See Miranda v. Arizona , 384 U.S. 436 (1966).

-3- During the interview, Agent Gary Slaybaugh wore civ ilian clothes and did not carry a weapon ( id . at 12). No guards were in the room, and Mr. Nava reta-Mares was unrestrained and never handcuffed. Prior to as king Mr. Navareta-Mares any questions, Agent Slaybaugh advised him of his Miranda 2 rights in Spanish reading from Immigration and Naturalization form I-214. Ac cording to Agent Slaybaugh, Mr. Navareta-Mares appeared to understand his right s prior to his signing the waiver section of the form.

Following this waiver, Agent Slaybaugh asked Mr. Navareta-Mares questions from Immigration and Naturalization form I-213 concerning his name, birth place, country of citizenship, when he entere d the United States, the status of his entry, and status when found. In answering these questions, Mr. NavaretaMares implicated his unlawful reentry into the Unit ed States. Agent Slaybaugh then took a sworn statement from Mr. Navareta-Mares using an Immigration and Naturalization form entitled “Record of Sworn State ment,” which Mr. NavaretaMares signed. This form contains language that the statement given can be used against the defendant “in any administrative procee ding,” but contains no language addressing its use in a court of law. Dur ing the interview, Agent-4-

Slaybaugh saw no evidence Mr. Navareta-Mares was physically debilitated or confused. Although both Agent Slaybaugh and Mr. Navareta-Mares wore cloth masks due to Mr. Navareta-Mares’ quarantine for pos sible tuberculosis, both later testified they understood each other. At the evide ntiary hearing, the Spanish interpreter stated on the record that Mr. Navareta- Mares did not appear to have any problem understanding, speaking or reading Span ish.

Based on the pleadings and evidence obtained at the evidentiary hearing, the federal magistrate judge issued a recommendatio n to deny the motion. Based on this evidence and credibility determinations, th e magistrate judge found: (1) Mr. Navareta-Mares understood the rights being aban doned and the consequences of abandoning those rights; (2) no intimidation, co ercion or deception occurred during the custodial interview; and Mr. Navareta-Ma res knowingly, intelligently and voluntarily waived his Miranda rights. The mag istrate judge also concluded that the government’s concession it would not seek introduction of the “Record of Sworn Statement” as evidence in the direct case dis posed of any question regarding its suppression. The district court adop ted the magistrate judge’s recommendation and denied Mr. Navareta-Mares’ suppr ession motion as to the other statements and evidence. Thereafter, Mr. Nav areta-Mares entered a conditional plea of guilty, preserving his right to appeal dismissal of his-5-

suppression motion. The district court sentenced M r. Navareta-Mares to fortyone months in prison.

On appeal, Mr. Navareta-Mares claims the district c ourt erred in denying his suppression motion. He argues he only partiall y understood Agent Slaybaugh when he advised him of his Miranda rights because: (1) at the time of the interview, he was only twenty years old; (2) he had only a ninth grade education; and (3) “his native language is not English and he only has a limited understanding of Spanish.” In support, he asserts “he was deceived by an [Immigration and Naturalization Service] Spanish sp eaker who advised him of complex concepts in a language [Spanish] he was notproficient in” and gave him his Miranda rights “in a foreign language like Span ish.” Finally, Mr. NavaretaMares claims the district court must suppress all h is statements to Agent Slaybaugh because those statements merged with his “Record of Sworn Statement” and, therefore, could only be used in an administrative proceeding, and not a criminal proceeding.

In reviewing the denial of a motion to suppress, we accept the district court’s findings of fact unless they are clearly er roneous, viewing the evidence in the light most favorable to the district court’s fi ndings. United States v. Erekson ,-6-

70 F.3d 1153, 1156 (10th Cir. 1995). Because Mr. N avareta-Mares claims his statements were involuntary, we review the issue of voluntariness de novo , although the trial court’s rulings regarding subsid iary factual questions are subject to review under the clearly erroneous standard. United States v. Short , 947 F.2d 1445, 1449 (10th Cir. 1991), cert. denied, 503 U.S. 989 (1992). We note waiver of a constitutional right “must not only be volunta ry, but must also constitute a knowing and intelligent relinquishment or abandonme nt of a known right or privilege,” which depends on the particular facts a nd circumstances surrounding each case, including the background, experience, an d conduct of the accused. Edwards v. Arizona , 451 U.S. 477, 482 (1981). This includes examinat ion of Mr. Naraveta-Mares’ characteristics such as his age, in telligence, and education, and the details of the interrogation, such as whether h e was informed of his rights, the length of his detention and interrogation, and the use of threat of physical force. See United States v. Nguyen , 155 F.3d 1219, 1222 (10th Cir. 1998), cert. denied, 119 S. Ct. 1096 (1999).

In this case, Mr. Navareta-Mares’ primary contentio ns are premised on his inability to understand Spanish. A review of the r ecord establishes Mr. NavaretaMares is a Hispanic male, born, raised and educated through the ninth grade in Mexico. He is a Mexican citizen whose parents, com mon-law wife and children-7-

reside in Mexico. He admits he “was raised speakin g, understanding Spanish, not English.” He also admitted he understood Agent Slaybaugh who conducted their interview in Spanish, and who in turn testified Mr. Navareta-Mares appeared to fully understand his questions. Finally, at the ev identiary hearing, the Spanish interpreter stated on the record Mr. Navareta-Mares did not have any problem understanding, speaking or reading Spanish.

Under these facts, we find Mr. Navareta-Mares’ unsupported allegations that his waiver and statements were involuntary, un intelligent and unknowing because of his inability to understand Spanish incr edulous, if not outrageous, and unsupported by the record. Such conclusory allegat ions and incredible contentions, unsupported by specifics, are subject to summary dismissal. See Blackledge v. Allison , 431 U.S. 63, 74 (1977). We further note Mr. Nava retaMares never advises what, if any, language he is pr oficient in other than Spanish, thereby reinforcing the determination that Spanish is his first and only language. To the extent Mr. Navareta-Mares is somehow claimin g he is not proficient in Spanish because of an abnormally limited vocabulary , he has not demonstrated facts sufficient to support this claim. See, e.g., Schildan v. Gladden , 426 F.2d 1158, 1159 (9th Cir. 1970) (finding twenty-seven-ye ar old with brain damage had extremely limited vocabulary and understanding of e very-day language).-8-

As to his age and education, an examination of the record provides no evidence showing he failed to understand Agent Slay baugh, the rights he was abandoning, or the consequences of that abandonment . To the contrary, the great weight of the hearing evidence supports the distric t court’s determination that he fully understood the nature and ramifications of hi s waiver and statements. Thus, his conclusory remarks as to being only twenty year s old and having only a ninth grade education, alone, without further support, ar e insufficient to establish his waiver and statements were involuntary, unintellige nt or unknowing. See Blackledge , 431 U.S. at 74.

Finally, nothing in the record supports Mr. Navaret a-Mares’ claims that his statements, made prior to his “Record of Sworn Stat ement,” were somehow merged and, therefore, could not be used during his criminal prosecution. The record shows Agent Slaybaugh never advised Mr. Nava reta-Mares any of his statements, made prior to his “Record of Sworn Stat ement,” would not be used to prosecute him. To the contrary, Mr. Navareta-Mares testified Agent Slaybaugh advised him his statements could be used against hi m in a court of law. As such, the district court properly allowed admission of al l Mr. Navareta-Mares’ statements made before he signed the “Record of Swo rn Statement.” The fact this3 Because the issue of whether the prosecution may use the Record of Sworn

Statement is not directly before us, we decline to comment on its admissibility.

-9- document contained language that it could be used f or administrative purposes did not limit use of his other statements at his crimin al prosecution. 3

Under these circumstances, Mr. Navareta-Mares’ clai ms must fail. For the reasons stated, we AFFIRM the district court’s order denying Mr. NavaretaMares’ motion to suppress, and Mr. Navareta-Mares’ judgment and sentence.

Entered by the Court: WADE BRORBY United States Circuit Judge