* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable G. Thomas Van Bebber, Senior United S tates District Judge for the District of Kansas, sitting by design ation. 

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

### MAR 7 2002 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. TRAVIS SEAN BOYD, Defendant - Appellant. No. 01-2041 (D.C. No. CR-00-941-MV) (D. New Mexico)



### ORDER AND JUDGMENT *

Before SEYMOURand HOLLOWAY , Circuit Judges, and VAN BEBBER, Senior District Judge. **
Travis Sean Boyd pled not guilty to all counts of a n indictment charging conspiracy and possession with intent to distribute crack cocaine, tampering with a witness, and carrying a firearm in relation to a drug trafficking crime. Following a jury verdict of guilty as to the first two charges, the district court sentenced Mr. Boyd to 300 months imprisonment for e ach count of the1 After a complete review of the record, we decline to grant Mr. Boyd’s

pro se Motion to Relieve Court-Appointed Counsel. -2- conviction. Mr. Boyd appeals the district court’s denial of his motion to suppress self-inculpatory statements, asserting that his wai ver of Mirandarights was invalid and that his subsequent self-incriminating statements were not voluntary and were the product of delay. We affirm. 1 At 10:00 p.m. on October 7, 1999, local officials a rrested Mr. Boyd in Carlsbad, New Mexico pursuant to a municipal warran t for two misdemeanor city code violations, possession of marijuana and drivin g with a suspended license. He was advised orally and in writing of his Mirandarights and signed an “advice of rights” form at 10:42 p.m. Thereafter, local an d federal authorities questioned him regarding his possible involvement in felony dr ug-related activities and a death threat made to a drug task force agent. Dur ing the interrogation, Mr. Boyd made both oral and written inculpatory statements. In the early morning hours of October 8, authoritie s transported Mr. Boyd to a local motel after he agreed to act as a police informant. While there, he completed his written statement to authorities. Mr . Boyd appeared in municipal court in Artesia, New Mexico that afternoon on the charges for which he was arrested. Federal agents took custody of him once he was transported back to the motel. The following evening, authorities transported him to Las Cruces, New Mexico for his scheduled appearance before the fede ral magistrate on October 10.-3-

On the day of his appearance, the government filed a criminal complaint charging Mr. Boyd with certain federal offenses. H e entered a guilty plea, which was later withdrawn following the appointment of ne w counsel by the district court. The government then filed a four-count indi ctment, to which Mr. Boyd pled not guilty as to all counts. After an evident iary hearing, the district court denied Mr. Boyd’s motion to suppress his inculpatory statements. Upon appeal of the denial of a suppression motion, we review the district court’s factual findings for clear error, taking th e evidence in the light most favorable to the district court’s ruling. See United States v. Toro-Pelaez , 107 F.3d 819, 826 (10 thCir. 1997). Ultimate determinations of waiver and voluntariness present questions of law subject to r eview de novo. See id. (waiver); United States v. Hernandez , 93 F.3d 1493, 1501 (10th Cir. 1996) (voluntariness). Procedural safeguards set forth i n Mirandaare designed to protect a suspect’s Fifth Amendment privilege again st self-incrimination during a period of custodial investigation. See Moran v. Burbine , 475 U.S. 412, 420 (1986). A valid waiver of this privilege must be “ knowing, voluntary and intelligent,” meaning it is “the product of a free and deliberate choice rather than intimidation, coercion, or deception,” and is “made with a full awareness of both the nature of the right being abandoned and the con sequences of the decision to abandon it.” Id . at 421. The government must prove the validity o f a waiver by a-4-

preponderance of the evidence. See Colorado v. Connelly , 479 U.S. 157, 168 (1986). Mr. Boyd argues that his written waiver of Mirandarights was invalid. He asserts that it was not knowing, voluntary or intel ligent because the true reason officers took him into custody was to question him about the suspected federal felony charges, not the minor misdemeanors for whic h he was arrested. However, the state of mind of the police is irrelevant to de termining whether the suspect made a valid waiver. See id . at 423. Moreover, an express written statement o f waiver, such as the “advice of rights” form signed by Mr. Boyd, is strong proof of the waiver’s validity. See North Carolina v. Butler, 441 U.S. 369, 373 (1979). In light of this precedent, as well as our review of t he record, we find no error in the district court’s determination that Mr. Boyd effect ed a valid written waiver. Nor are we persuaded the district court erred in fi nding that Mr. Boyd’s subsequent incriminating oral and written statement s were voluntary. To be voluntary, a confession must be “the product of an essentially free and unconstrained choice by its maker[.]” Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). Both the characteristics of the accuse d and the circumstances of the interrogation are relevant to this determination. See id. at 226. A review of the record under the totality of the circumstances stan dard supports the district court’s determination that Mr. Boyd’s statements we re voluntary.2 Section 3501(c) states:

In any criminal prosecution ... a confession made or given by a person who is a defendant therein, while such person was u nder arrest or other detention in the custody of any law enforcement off icer or law enforcement agency, shall not be inadmissible solel y because of delay in bringing such person before a magistrate ... if such confession was made or given by such person within six hours immed iately following his arrest or other detention: Provided, That the time limitation ... shall not apply in any case in which the delay ... is found by the trial judge to be reasonable considering the means of transport ation and the distance to be traveled to the nearest available su ch magistrate. . . .

3 In Dickerson v. United States , 530 U.S. 428 (2000), the Supreme Court held that Congress, by enacting § 3501, could not supersede Miranda , a constitutional decision. Nothing in Dickerson overrules or affects the time limitation specified in subsection (c) of § 3501.

-5- Finally, we see no error in the district court’s de nial of Mr. Boyd’s claim under 18 U.S.C. § 3501(c). 2Mr. Boyd urges us to hold that he was in federal custody from the time the interrogation began on th e night of October 7. Even if we adopted this position, a review of the record sh ows that Mr. Boyd made the majority of his inculpatory statements within six h ours of his arrest. Moreover, strict adherence to the six-hour rule in § 3501(c) is not required to render a confession admissible. See United States v. Glover, 104 F.3d 1570, 1583 (10 th Cir. 1997) (quoting United States v. Shoemaker , 542 F.2d 561, 563 (10 thCir. 1976)). 3
AFFIRMED

. ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge