* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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. 

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

### APR 21 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant,

v. GERARDO ALARCON, Defendant-Appellee. No. 03-1307 (District of Colorado) (D.C. No. 03-CR-114-M)

ORDER AND JUDGMENT *

Before HENRY , BALDOCK , and MURPHY , Circuit Judges.

I. INTRODUCTION Defendant-appellee Gerardo Alarcon was arrested whe n a SWAT team executed a search of a third-party’s apartment. Th e SWAT team found two kilograms of cocaine in the apartment. Alarcon was charged with conspiracy to-2-

distribute a controlled substance in violation of 2 1 U.S.C. § 846, and with possession with intent to distribute a controlled s ubstance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Alarcon moved to suppress his confession, arguing that it was obtained in violation of Miranda v. Arizona , 384 U.S. 436 (1966). The United States District Court for the District of Colorado granted Alarcon’ s motion to suppress, concluding that Alarcon had not executed a valid wa iver of his Miranda rights. The court based this conclusion on its finding thatAlarcon, a native Spanish speaker, had not understood the Mirandawarning or waiver, which were given to him in English. The government appeals the suppression of Alarcon’s confession. Exercising jurisdiction pursuant to 28 U.S.C. §1291 and 18 U.S.C. § 3731, this
court affirms the district court’s suppression of Alarcon’s conf ession.
II. BACKGROUND Alarcon was in one Christian Saenz-Sanchez’s apartm ent when the SWAT team entered it to execute a search warrant. The S WAT team handcuffed and arrested Alarcon and took him to the police station

. The parties contest whether or not Alarcon understo od the Mirandarights read to him in English. A Spanish speaking officertestified that he asked Alarcon, in Spanish, whether he preferred to be int erviewed in English or-3-

Spanish. On cross examination, the officer did notrecall whether he also offered to read Alarcon his Mirandarights in Spanish. The officer testified that Ala rcon preferred to be interviewed in English. The office r did not, however, ask Alarcon how well he understood English. Alarcon, on the ot her hand, testified that the police just spoke to him in English without ever gi ving him the option of being given his Miranda warnings or interrogation in Spanish. Alarcon test ified that the police did not start speaking Spanish to him until the latter part of the interview, when they realized that he could not understand the m. Alarcon answered “yes” to the following question on the Mirandawaiver form: “Do you read, write, and understand English?” After signing the Miranda waiver, Alarcon confessed to the police, at first b y answering in English, and later in Spanish. At his court appearances, Alarcon answ ered the magistrate judges in simple English, primarily “yes” and “no” answers, a nd declined an interpreter on at least one occasion. Alarcon explained that he d eclined the interpreter because the two defendants who had hearings before him were only asked questions that could be answered with a yes or a no, and he was “t rying to look good in court.” Alarcon answered “yes, sir” when one magistrate jud ge asked him if he spoke English fluently. Alarcon testified, however, thathe only understood the court proceedings after they were interpreted for him.-4-

Alarcon testified that he understood neither the Miranda warnings he was given nor the waiver he signed, but that he “kn[e]w that it was laws.” Alarcon claimed that he can only understand “bits and piece s” of spoken English and must translate word for word in order to attempt to unde rstand sentences. He testified that he can only read some English words and that h is wife translates English correspondence for him. Alarcon noted that he ofte n feigns to understand what is being said to him in English because he is ashamed to admit his lack of English proficiency. Similarly, Nubia Millan, Alarcon’s wife, testified that he has difficulty understanding English and that she acts as his inte rpreter. Millan testified that Alarcon would answer the court in simple English wo rds such as “yes,” and then turn to her and ask her to interpret what had trans pired. After court appearances, Millan had to interpret the substance of the hearin gs into Spanish for Alarcon to comprehend them. She testified that Alarcon will p retend to understand those who speak to him in English in order to appear resp ectful and cooperative. III. DISCUSSION When reviewing a district court’s grant of a motion to suppress, this court considers the totality of the circumstances and vie ws the evidence in the light most favorable to the defendant. See United States v. Mitchell , 274 F.3d 1307, 1310 (10th Cir. 2001). This court accepts the dist rict court’s factual findings-5-

unless those findings are clearly erroneous. Id. The ultimate determination of waiver is a question of law subject to de novo review. United States v. ToroPelaez , 107 F.3d 819, 826 (10th Cir. 1997). The government argues that the district court commi tted clear error when it found that Alarcon did not understand the Mirandarights that were read to him in English. In turn, the government argues, the distr ict court erroneously concluded that Alarcon did not knowingly and voluntarily waiv e his Mirandarights. The government asks this court to reverse the district court’s suppression of Alarcon’s confession. The district court did not commit clear error when it found that Alarcon did not understand the Mirandarights which were read to him in English. This co urt will not reverse for clear error unless, after revi ewing all the evidence, it is left with a definite and firm conviction that a mistake has been made. Manning v. United States , 146 F.3d 808, 812 (10th Cir. 1998). The credibil ity of witnesses, the weight to be given evidence, and the reasonable inferences drawn from the evidence fall within the province of the district c ourt. United States v. Browning , 252 F.3d 1153, 1157 (10th Cir. 2001) (quotation omi tted). The evidence presented at the suppression hearing i n this case can support either a finding that Alarcon understood English orone that he did not. The government’s witnesses testified that Alarcon conve rsed with the officers in-6-

English and did not seem to have trouble understand ing them. Alarcon and Millan, on the other hand, testified that Alarcon c an understand nothing but the most elementary English words and phrases, such as “yes,” “no,” “wife,” “son,” and “where do you live.” Both Alarcon and Millan t estified that Alarcon often pretends to understand English because he wants to appear cooperative and is ashamed to admit his lack of English proficiency. Most importantly, Alarcon specifically testified that he did not understand t he Mirandarights which were read to him in English. Thus, the issue of Alarcon ’s ability to comprehend the English Miranda warnings turns entirely on the credibility of witne sses. This court will not substitute its own opinion of how th e evidence should have been weighed for the district court’s assessment of the proper weight of the evidence and of the credibility of witnesses. Browning , 252 F.3d at 1157. Therefore, this court cannot say that it is left with a definite an d firm conviction that the district court erred when it found that Alarcon did not unde rstand the Mirandawarnings. In light of this factual finding, the district court did not err in concluding that the waiver was not knowing and intelligent. A waiver is knowing and intelligent if it is made with full awareness of bo th the nature of the right being abandoned and the consequences of the decision to a bandon it. Moran v. Burbine , 475 U.S. 412, 421 (1986). Warnings given in a lang uage which the defendant cannot comprehend do not convey the substance of th e suspect’s rights. See United States v. Bustillos-Munoz , 235 F.3d 505, 517 (10th Cir. 2000) (waiver2 Because this court concludes that Alarcon’s waiver of his Mirandarights

was not knowing and intelligent, it need not reach the question of whether it was voluntary. See Moran v. Burbine , 475 U.S. 412, 421 (1986) (a valid waiver of Mirandarights must be both voluntary and knowing and intelligent). -7- knowing and intelligent because imperfect translati on into a language which defendant understood conveyed the substance of the rights waived); United States v. Hernandez , 93 F.3d 1493, 1502 (10th Cir. 1996) (same); United States v. Hernandez , 913 F.2d 1506, 1510 (10th Cir. 1990) (acknowledgi ng that language barriers may inhibit a suspect’s ability to knowing ly and intelligently waive his Mirandarights). Alarcon did not understand the rights wh ich were read to him in English. It would be illogical for this court to c onclude that Alarcon “at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure aconviction” when he could not comprehend the language in which the warnings were read to him. See Burbine , 475 U.S. at 422-23; Hernandez , 913 F.2d at 1510. Because Alarcon’s waiver was not knowing and intelligent, he did not validly wai ve his Mirandarights. 2 The district court therefore did not err in suppressing Alarcon’s confession.-8-

IV. CONCLUSION For the foregoing reasons, this court AFFIRMS the district court’s order suppressing Alarcon’s confession. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge