### I N THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 51030

UNITED STATES OF AMERICA,
Plaintiff

- Appellee

v. GABRIEL ALEJANDRO ALVARADO

- PALACIO,
Defendant

- Appellant

Appeal from the United States District Court for the Western District of Texas

Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges

. * JAMES E. GRAVES, Jr., Circuit Judge : Defendant

- Appellant Gabriel Alejandro Alvarado

- Palacio (“Alvarado

Palacio”) asks this court to reverse the district court’s denial of his motion to suppress based on a determination that he had voluntarily, knowingly and intell igently waived his Miranda rights before providing officers with incriminating post

- arrest statements. See Miranda v. Arizona , 384 U.S. 436 (1966). After the denial of the motion to suppress, the parties had a bench trial based on jointly stipulated facts. Alvarado

- Palacio was subsequently found guilty and is currently serving his federal prison sentence. For the reasons set forth below, we affirm

.

* Judge Oldham concurs in the judgment only. United States Court of Appeals Fifth Circuit 

### FILED March 2, 2020 Lyle W. Cayce Clerk Case: 17-51030 Document: 00515328024 Page: 1 Date Filed: 03/02/2020No. 17

- 51030

2 I. Facts and Procedural History A. On March 29, 2017, Alvarado

- Palacio

— a Mexican citizen

— attempted to drive a 2004 Nissan containing 9.98 kilograms of methamphetamine into the U nited S tates

. He was detained at a port of entry in El Paso, Texas , where Customs and Border Protection (“CBP”) agents found 17 bundles of methamphetamine following a secondary inspection of the car. He was arrested and escorted to a holding cell for questioning. Alvarado

- Palacio was interrogated by Homeland Security Investigations (“HSI”) Special Agents Carlos Hernandez (“Hernandez”) and Oscar Flores (“Flores”) (collectively, the “age nts ”). The interrogation was video recorded

. Hernandez read Alvarado

- Palacio his Miranda rights, in Spanish, informing Alvarado

- Palacio that (1) he has a right to remain silent ; (2) anything that he says may be used against him in court or other judicial pro cess ; (3) he may consult with an attorney before making a declaration or answering any question; (4) if he cannot afford an attorney, an attorney will be assigned to him before any interrogation or when he requests one; and (5) if he chose to

answer questions, he can stop the interrogation at any moment or stop to consult with an attorney. 1 Hernandez asked Alvarado

- Palacio, in Spanish , if he understood his rights. Alvarado

- Palacio said yes. Next , Hernandez informed Alvarado

- Palacio that the interroga tion was being recorded as “protection for everyone” and that Hernandez needed Alvar ado

- Palacio to include his name , sign ature, and date on a Spanish version of a Department of Homeland Se curity form including a “Declaration of [ Miranda ] Rights” and “Waive r.” Flores asked Alvarado

- Palacio, “You

1 A phone ring tone momentarily interrupts Hernandez as he reads the last sentence , but Hernandez goes back to reiterate that if Alvarado

- Palacio decides to answer questions, he has the right to stop at any mome nt and to stop and consult with an attorney. Case: 17-51030 Document: 00515328024 Page: 2 Date Filed: 03/02/2020No. 17

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3 understand your rights? And you will, we will be talking to you. We have a few questions for you. Is that ok? Is that ok with you?” Alvarado

- Palacio respond ed “Yes, I am ok” as Hernandez slid the form toward him on the file cabinet indicating where to sign his name, signature, and date. While Alvarado

- Palacio pick ed up the pen to sign, Flores inform ed him that he can read the rights again if he would like. Alvarado

- Palacio fill ed out the form

. A s Alvarado

Palacio began reviewing the form , Hernandez attempted to take the form. Alvarado

- Palacio took the form back and looked at it for approximately 15 seconds, appearing to read its contents and repeat some of it under his breath

. After Alvarado

- Palacio was done read ing, Hernandez asked Al varado

Palacio if he underst ood his rights. Alvarado

- Palacio handed the form to Hernandez and asked , “Yes, that I may have an attorney , it says ?” Hernandez answered while holding the signed rights and waiver form , “Yes , you may have an attorney, but right now is when we can speak with you.” Alvarado

- Palacio responded, “Ah, o k.” Alvarado

- Palacio subsequently g a ve the agents a confession admitting that he knew the drugs were in the car, even though he did not know what kind of drugs. Alvarado

- Palacio also admitted that he was offered $800 to take the drugs to a delivery point in the U nited States

. B
. The Government charged Alvarado

- Palacio with importing and possessing with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii) and 21 U.S .C. §§ 952(a) and 960(a)(1), (b)(1)(H). Before trial, Alvarado

- Palacio filed the motion to suppress his statements and confession, arguing that he did not voluntarily and knowingly waive his Miranda rights because Hernandez mischaracterized his right to an attorney

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4 Relying on the interrogation video recording and the uncertified English

Spanish translated transcript “as an aid,” t he district court found that Alvarado

- Palacio was subject to a custodial interrogation and “knowingly, intelligently and volunt arily waived those rights and agreed to speak to the agents

. ” T he district court also determin ed that Alvarado

- Palacio stated rather than asked for clarification when he said, “That I can have an attorney, it says. ” The district court later found Alvarado

- Palacio guilty of the charged offenses after a bench trial based on jointly stipulated facts. The district court sentenced Alvarado

- Palacio to 46 months’ imprisonment and five years of supervised release. Alvarado

- Palacio appealed, challenging only the de nial of the motion to suppress his statements and confession made during the interrogation. We have jurisdiction over this appeal pursuant to 28 U.S.C. §1291. II. Standards of Review In reviewing a ruling on a motion to suppress a confession, “ we give cred ence to the credibility choices and fact finding by the district court unless they are clearly erroneous,” but “the ultimate issue of voluntariness is a legal question reviewed de novo.” United States v. Mullin , 178 F.3d 334, 341 (5th Cir. 1999) (citing United States v. Restrepo , 994 F.2d 173, 183 (5th Cir. 1993) )

. We must defer to the district court’s factual finding s unless we are “left with a definite and firm conviction that a mistake has been committed.” United States v. Scroggins , 599 F. 3d 433, 440 (5th Cir. 2010) (citing United States v. Hernandez , 279 F.3d 302, 306 (5th Cir. 2002)). The evidence must be viewed in the light most favorable to the prior prevailing party

— in this case, the Government. United States v. Pack , 612 F.3d 341, 34 7 (5th Cir.) (citing United States v. Cantu , 230 F.3d 148, 150 (5th Cir. 2000) ) , opinion modified on denial of reh’g , 622 F.3d 383 (5th Cir. 2010 )

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5 III. Analysis A. L aw enforcement must inform a suspect of his Miranda rights, but a suspect can waive thos e rights if the waiver is made voluntarily, knowingly and intelligently. Moran v. Burbine , 475 U.S. 412, 421 (1986) (citing Miranda , 384 U.S. at 444, 475). Accordingly, courts consider both the voluntariness inquiry and the knowing inquiry. Id. Alvarado

- Palacio argues that the waiver of his Miranda rights was invalid because the agents misrepresented his right to counsel

. For a waiver of Miranda rights to be voluntary, it must be “the produc t of a free and deliberate choice rather than intimidation, coercion, or deception.” Id

. “[T] rickery or deceit is only prohibited to the extent it deprives the suspect ‘of knowledge essential to his ability to understand the nature of his rights and the co nsequences of abandoning them.’” Soffar v. Cockrell , 300 F.3d 588, 596 (5th Cir. 2002) (en banc) (quoting Burbine , 475 U.S. at 424). “The voluntariness determination is made on a case

- by

- case basis and is viewed under the totality of the circumstances surr ounding the interrogation.” United States v. Cardenas, 410 F.3d 287, 293 (5th Cir. 2005) (citing United States v. Reynolds , 367 F.3d 294, 298 (5th Cir. 2004)). The facts here are rather straight forward

— the agents informed Alvarado

- Palacio of his Miranda r ights , including his right to consult with an attorney before or during any interrogation; Alvarado

- Palacio indicated he underst ood his rights; Hernandez slid over a waiver and Flores mention ed that Alvarado

- Palacio c ould read the rights again; Alvarado

- Palacio wrote his name, signature, and date on a Spanish f orm that included his Miranda rights and a waiver of these rights; Alvarado

- Palacio took a moment to review the form ; the agents asked him if he understood the form and Alvarado

- Palacio responded , “Yes, that I may have an attorney , it says ?” ; Hernandez answered Case: 17-51030 Document: 00515328024 Page: 5 Date Filed: 03/02/2020No. 17

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6 while holding the rights and waiver form , “Yes you may have an attorney, but right now is when we can speak with you” ; and Alvarado

- Palacio respond ed , “Ah ok.” Nothing from the record indicates that Alvarado

- Palacio did not make a free and deliberate choice to waive his right to counsel

. Accordingly, this appeal hinges on the question of whether there was a knowing waiver

. See Soffar , 300 F.3d at 5 92

– 93 (notin g that the waiver decision must be made with “full awareness of the right being abandoned” and the consequences of doing

so (quoting Burbine , 475 U.S. at 42 1) ). B. A signed waiver form, though not conclusive, is “usually strong proof” of

a knowing and voluntar y waiver. North Carolina v. Butler , 441 U.S. 369, 373 (1979). B oth parties agree that agent Flores told Alvarado

- Palacio that he could read the document and that Alvarado

- Palacio reviewed the document after signing it

. See Garcia v. St ephens , 793 F.3d 513, 522 (5th Cir. 2015) ( “ [W] aivers may be direct or, in some instances, they may be clearly inferred from the actions and words of the person interrogated ” (internal citation and quotation omitted) ); see also United States v. Martinez , 588 F.2d 1227, 1235 (9th Cir. 1978) (fin ding intelligent waiver even though suspect “ testified at the hearing that he had not read the form at the time he signed it, but two government witnesses said he did ”). Examining the totality of circumst ances here

— including Alvarado

Palacio’s initial affirmation that he understood his right to an attorney prior to or during interrogation , the video of him signing the Spanish translated waiver , his second affirmation that he understoo d his rights , and his agreement to speak with the agents

— the district court’ s finding that Alvarado

Palacio knew and understood his rights is not clearly erroneous

. See United States v. Venegas, 594 F. App ’x 822, 828 (5th Cir. 2014) (per curiam) (finding Case: 17-51030 Document: 00515328024 Page: 6 Date Filed: 03/02/2020No. 17

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7 t hat a suspect may vali dly waive his or her Miranda rights even when the interrogating officer administers a written warning alone ). Alvarado

- Palacio contends that the agents misrepresented when he could seek counsel . T he agents asked Alvarado

- Palacio , for the third time , if he understood his rights. In response, Alvarado

- Palacio asked a question or made a statement. Whether a statement or a question, the result in this case flows from the circumstances which preceded Alvarado

- Palacio’s response. Pri or to this exchange, t he agents told Alvarado

- Palacio at the start of the recording he had the right to an attorney before and during any interrogation, Alvarado

- Palacio received a written Spanish waiver that he signed, he answered affirmatively about unde rstanding the form, and Alvarado

- Palacio said he was “ok” with speaking with the agents. See Colorado v. Spring , 479 U.S. 564, 57 4 (1987) (holding that suspect need not “know and understand every possible consequence of a waiver”). Moreover, we have held t hat an officer’s misleading statement does not “ invalidate [ ] the multiple waivers [a defendant] had given prior to the interview. ” Soffar, 300 F.3d at 596 (noting that the defendant “ was well aware of his rights because he had been given numerous Miranda warnings and had waived his rights multiple times prior to his interview ” with officers). Our sister courts have similarly rejected Miranda arguments from detained individuals who asked officers even more direct questions about the right to counsel. See , e.g., United States v. Bezanson

Perkins , 390 F.3d 34 (1st Cir. 2004) (finding valid Miranda waiver and no coercion where officer stated that there was no immediate access to an attorney and explained that the defendant would have to hire his own lawyer); United States v. Shabaz , 579 F.3d 815 (7th Cir. 2009) (finding valid Miranda waiver where officer brought suspect to interview room before answering suspect’s question about access to an attorney). Case: 17-51030 Document: 00515328024 Page: 7 Date Filed: 03/02/2020No. 17

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8 At most, Alvarado

- Palacio c an protest that the agents ’ failure to go back to reiterate his Miranda rights is “objectionable as a matter of ethics.” Burbine , 475 U.S. at 4 23

- 24. However, the Constitution does not “require that the police supply a suspect with a flow of information to help him calibrate his self

interest in deciding whether to speak or stand by his rights .” Id. at 422

. A bsent a definite conviction that a mistake has been made, we must “ giv [ e ] due deference to the credibility determinations of the district court ” and “ [ v ] iew [ ] the evid ence in the light most favorable to the government.” United States v. Solis, 299 F.3d 420, 437 (5th Cir. 2002)

. After agents verbally informed Alvarado

- Palacio of his Miranda rights, t he “waiver signed by [Alvarado

Palacio] acknowledged that his statements could be used against him , ” which made his subsequent statements not “constitutionally involuntary. ” United States v. Tapp, 812 F.2d 177, 179 (5th Cir. 1987). We also have held that a failure to “pay attention to the waiver form [a suspect] si gned” is insufficient to show that a waiver was made involuntarily or unknowingly. United States v. Guanespen

- Portillo , 514 F.3d 393, 404 (5th Cir. 2008) (finding that reading a waiver form and affirming one’s understanding of that form without coercive a ction demonstrates a valid waiver)

. After Alvarado

- Palacio sign ed the rights and waiver form, agents asked him if he understood his rights

. Alvarado gave an ambiguous reply,

“ that I can have an attorney , it says ?” but then clearly stated “ A h ok” when age nts informed him that they were going to speak with him

. We cannot view this exchange in a vacuum. De La Rosa v. State of Tex as , 743 F.2d 299, 302 (5th Cir. 1984) (“W e cannot accept the position that would have us ignore the repeated full and accurate warnings to focus only on the remark that appointing an attorney would take some time

. ”). Just moments before , the agents verbally told Alvarado

- Palacio about his Miranda rights and asked if he understood

. He answered yes

. The agents also asked if Alvar ado

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9 u nderstood his rights and would be okay if they asked him a few questions. He answered that he was ok. Finally, Alvarado

- Palacio’s reliance on California v. Prysock , 453 U.S. 355, 357 (1981) is misplaced because Prysock involved warnings tha t did “ not apprise the accused of his right to have an attorney present if he chose to answer questions.” Duckworth v. Eagan , 492 U.S. 195, 205 (1989 ) ( finding that Miranda warnings were not defective because two sentences described the right to counsel be fore interrogation and the right to stop answering questions at any time to speak with a lawyer). Moreover, “[w] e have previously held that ‘ there is no requirement that an accused be continually reminded of his rights once he has intelligently waived them. ’ ” Biddy v. Diamond, 516 F.2d 118, 122 (5th Cir. 1975) ( quoting United States v. Anthony , 474 F.2d 770, 773 (5th Cir. 1973) )

. As indicated in the video, the agents first verbally informed Alvarado

- Palacio that he could have an at torney before or during any interrogation , and those rights and waiver were set out on the Spanish translated form. While holding Alvarado

- Palacio’s signed waiver, agent Hernandez inform ed Alvarado

- Palacio that they would speak with him and he replie d, “Ah ok.” Accordingly, t he video indicates that the agents “ fully advise [d] [Alvarado

- Palacio] of his right to appointed counsel before such interrogation ” and fails to show that th e agents’ “ reference to appointed counsel was linked to a future point in time after police interrogation .” Prysock , 453 U.S. at 360. IV. Conclusion Viewing the evidence in the light most favorable to the Government and with deference to the district court’s factual finding, we find no clear error in the district court’s denial of the motion to suppress Alvarado

- Palacio’s statements and confession made during the interrogation

. AFFIRMED. Case: 17-51030 Document: 00515328024 Page: 9 Date Filed: 03/02/2020