IN 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 (“AlvaradoPalacio”) 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 

intelligently 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

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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 

United States. 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 “agents”). 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 process; (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 interrogation was 

being recorded as “protection for everyone” and that Hernandez needed 

Alvarado-Palacio to include his name, signature, and date on a Spanish version 

of a Department of Homeland Security form including a “Declaration of 

[Miranda] Rights” and “Waiver.” 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 moment and to stop and consult with an attorney. 

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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 responded

“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 

picked up the pen to sign, Flores informed him that he can read the rights 

again if he would like. Alvarado-Palacio filled out the form. As AlvaradoPalacio 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 reading, Hernandez asked AlvaradoPalacio if he understood 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, ok.” Alvarado-Palacio subsequently gave 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 United 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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Relying on the interrogation video recording and the uncertified EnglishSpanish translated transcript “as an aid,” the district court found that 

Alvarado-Palacio was subject to a custodial interrogation and “knowingly, 

intelligently and voluntarily waived those rights and agreed to speak to the 

agents.” The district court also determined 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 denial 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 

credence 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 findings 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, 347 (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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III. Analysis

A. 

Law enforcement must inform a suspect of his Miranda rights, but a

suspect can waive those 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 product 

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 consequences 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 surrounding 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 straightforward—the agents informed 

Alvarado-Palacio of his Miranda rights, including his right to consult with an 

attorney before or during any interrogation; Alvarado-Palacio indicated he 

understood his rights; Hernandez slid over a waiver and Flores mentioned that 

Alvarado-Palacio could read the rights again; Alvarado-Palacio wrote his 

name, signature, and date on a Spanish form 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

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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 responded, 

“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 592–93 (noting 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 421)). 

B.

A signed waiver form, though not conclusive, is “usually strong proof” of

a knowing and voluntary waiver. North Carolina v. Butler, 441 U.S. 369, 373 

(1979). Both 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. Stephens, 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) (finding 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 circumstances here—including AlvaradoPalacio’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 understood his rights, and his 

agreement to speak with the agents—the district court’s finding that AlvaradoPalacio 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 

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that a suspect may validly 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. The 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. 

Prior to this exchange, the 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 understanding the form, and Alvarado-Palacio 

said he was “ok” with speaking with the agents. See Colorado v. Spring, 479 

U.S. 564, 574 (1987) (holding that suspect need not “know and understand 

every possible consequence of a waiver”). Moreover, we have held that 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. BezansonPerkins, 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). 

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At most, Alvarado-Palacio can 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 423-24. However, the Constitution does not “require that the police 

supply a suspect with a flow of information to help him calibrate his selfinterest in deciding whether to speak or stand by his rights.” Id. at 422. 

Absent 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 evidence 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, the “waiver signed by [AlvaradoPalacio] 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] signed” 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 action demonstrates a valid 

waiver). After Alvarado-Palacio signed 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 “Ah ok” when 

agents informed him that they were going to speak with him. We cannot view 

this exchange in a vacuum. De La Rosa v. State of Texas, 743 F.2d 299, 302 

(5th Cir. 1984) (“We 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 Alvarado-Palacio 

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understood 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 that 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 before 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 attorney 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 informed Alvarado-Palacio that they would speak with him and he 

replied, “Ah ok.” Accordingly, the video indicates that the agents “fully 

advise[d] [Alvarado-Palacio] of his right to appointed counsel before such 

interrogation” and fails to show that the 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.

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