United States Court of Appeals

Fifth Circuit

FILED

May 20, 2005

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 04-20449

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

ERICA CARDENAS,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

______________________________

Before DAVIS, SMITH, and DEMOSS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In this case, we are asked to review the

decision of the district judge in proceedings

regarding the prosecution of alleged participants in an alien smuggling conspiracy. The

judge ordered the suppression of one of two

statements made by the defendant, Erica

Cardenas, after her arrest.

The court suppressed the statement despite

the uncontradicted evidence that Cardenas repeatedly, voluntarily, and unambiguously had

waived her Miranda rights.1 There is little

evidence of coercive police conduct, and to

the extent that the district judge found that

such conduct took place, her conclusion is

clearly erroneous.

Some of the government’s behavior could

be considered sloppy, and consequently any

testimony relating the supposed admissions

gleaned from the challenged interview is ripe

1

See Miranda v. Arizona, 384 U.S. 436, 444

(1966).
2

for impeachment. Such issues of evidentiary

weight, however, have no bearing on Fifth

Amendment analysis. It was, therefore, patently incorrect as a matter of law for the

district judge to conclude that, viewing the

decision in light of the totality of the circumstances, Cardenas’s waiver was involuntary. 

I.

In May 2003, agents of United States

Immigration and Customs and Enforcement

(“ICE”) were engaged in an ongoing investigation of a large-scale alien smuggling organization operating out of the Rio Grande Valley

and bringing undocumented aliens from Mexico to Houston, Texas. On May 14, agents

from the Brownsville ICE office contacted

agents from the McAllen office and requested

assistance in recovering a three-year-old alien

who had been separated from his mother.

Based on information received via an undercoverinvestigation, agents had learned that the

smugglers holding the child wanted to make

the exchange of the child at the La Plaza Mall

in McAllen, Texas, near the Mexican border.

A.

At around 2:00 p.m. on May 15, a man

(later discovered to be Juan Cisneros) delivered the child to agents posing as the child’s

family at the mall. After Cisneros had returned

to his vehicle, tailed by undercover agents,

those agents approached the vehicle to place

Cisneros under arrest. Upon approaching the

passenger side of the vehicle, agent Richard

Serra observed a young woman, later identified as Cardenas, sitting in the vehicle holding

a young infant. 

Cardenas exited the vehicle, and although

Serra still had his firearm drawn, Serra took

the infant from Cardenas, backed away from

the car, handed hisfirearmto another agent (as

he was excoriated by a superior for his dangerous decision to handle both the gun and the

baby), and placed the infant in an air-conditioned vehicle. Cardenas, Cisneros, and the

baby were transported to the McAllen border

patrol office. Sometime before 5:30 that

evening, all three were transported to the

Harlingen ICE office, at which point the infant

had been returned to Cardenas’s care.

Around 6:00 p.m., Serra and agent Jose

Ovalle, Jr., began interviewing Cisneros and

Cardenas. Cardenas and her infant were

brought to a desk in the processing area of the

office, which was equipped with a computer

(on which Ovalle would transcribe Cardenas’s

statements as she answered questions).

Cardenas was read her Miranda rights, and

after it was ascertained that the infant was hers

and not another smuggled child, she was

allowed to contact someone to pick up the

child so that the baby would not have to be

placed into the custody of child protective

services. Cardenas reached a neighbor, who

arranged for a relative to come to the office to

pick up the baby. 

After arrangements were made, during

which time it became apparent that she was

proficient in English and Spanish, Cardenas

was again administered Miranda warnings.

Ovalle read each section ofthe standard advice

of rights form to her in Spanish. After each

line, Ovalle translated it into English. Cardenas, line-by-line, confirmed that she understood

her rights. During the next two hours, she

cooperated with the agents and answered

questions about the smuggled child. At the

conclusion of the interview, the agents reviewed the statement with her, and she confirmed by her initials that it was a correct

transcription.

There is no evidence that, at any time that

day, agents coerced Cardenas to waive her
3

Miranda rights. During the interview, Cardenas was offered food and drink and was allowed

to tend to and feed her infant. She also told

the agents that she did not want to have an

attorney present and never indicated that she

did not wish to speak with them.

After the interview, Cardenas and the infant

were returned to a holding cell until a relative

arrived to pick up the baby. At that point,

Cardenas brought the baby to Cisneros to say

goodbye and then turned the baby over to the

relative. Because the Harlingen office did not

have overnight accommodations and the Marshal’s office in McAllen was closed for the

evening, Cardenas and Cisneros were brought

to the jail at the Harlingen Police Department.

B.

Between 7:00 and 7:30 the following morning, agentstransported Cardenas and Cisneros

to the federal building in McAllen for their

initial appearance before a magistrate judge.

Upon arrival there, Cardenas was taken to the

detention area on the eighth floor. Because

the criminal complaint had not yet been completed, however, Cardenas was not able to be

placed on the 9:00 a.m. docket. 

At the same time, on the sixth floor (the

United States Attorney’s office), the agents

and Assistant United States Attorney

(“AUSA”) Luis Martinez discussed the investigation and the statement given by Cardenas

the previous evening. Concluding that the

statement was not entirely accurate, Martinez

received authorizationto seek further cooperation from Cardenas. According to the agents’

testimony at the suppression hearing, the

agents asked Cardenas whether she wished to

speak to Martinez, and urged her to cooperate,

tellinghertheybelieved her previousstatement

was untruthful. Cardenas then indicated she

wished to speak to Martinez. Handcuffed, she

was brought from the detention area to a

conference roomin the U.S. Attorney’s office.

What occurred at this point is the matter of

some dispute. According to the government,

agents again readCardenas her Miranda rights

from a form provided by the U.S. Attorney’s

office. Allegedly, Cardenas told the agents she

understood her rights and signed the waiver

form that included a waiver of her right to go

before a magistrate judge. 

Despite this story, i.e., that the form was

executed at the beginning of the interview

(about 10:30 a.m.), the waiver form indicates

it was signed at 1:58 p.m. According to the

government, no time was initially entered, and

1:58 was erroneously added later by one ofthe

agents. Apparently, however, the district

judge did not accept this version, concluding

that “the totality of the evidence indicates that

the AUSA . . . at 1:58 p.m., immediately

before the scheduled 2:00 p.m. magistrate

docket, had the defendant sign the form waving her right to appear before the magistrate to

be advised of her rights by this neutral judicial

officer.”

Nevertheless, the record indicates, and the

district judge did not appear to disbelieve, that

whenMartinez arrived inthe conference room,

he reviewed withCardenas her Miranda rights

“very, verycarefully, veryslowly, verydeliberately.” Martinez testified that he advised

Cardenas that she did not have to speak with

him but that anything she said could be used

against her in court, and that she could have an

attorney immediately if she wanted one, even

if she could not pay for one. Nevertheless,

Cardenas chose to speak with Martinez and

declined to have an attorney present. 

Ovalle asked most of the questions during
4

this interview but did not electronically transcribe Cardenas’s answers. Instead, he testified that he took notes of the interview from

which he created a report some thirty minutes

later. Despite taking notes while present,

Ovalle admits that he was not in the room for

the entire interview, but instead left the room

a few times to make and receive telephone

calls. 

Although Serra and Martinez were present

for the entirety of the interview, Ovalle never

asked either person what was said in the interview during his absences. Suspiciously, both

Ovalle’s notes and those allegedly taken by

Martinez were shipped to the U.S. Attorney’s

office in Houston, where both sets of notes allegedly have been misplaced. The only written

account of the interview, therefore, is Ovalle’s

report written after the interview without full

knowledge of what was said.

According to the testimony of the agents

who were present for the interview, Cardenas’s statement at the U.S. Attorney’s office in

McAllen differed significantly from her statement made the night before at the Harlingen

ICE office. In the second interview, Cardenas

allegedly conceded that she was with Cisneros

when they drove to a man named Don Victor’s

house to pick up the smuggled child. She

described Victor as a “smuggler of people”

and admitted that Cisneros was to be paid

$100 for delivering the child. Finally, according to Martinez, Cardenas admitted that she

“would get some benefit” from the payment

and realized that her conduct was wrong.

C.

On the eve of trial, the district judge held an

evidentiary hearing to consider Cardenas’s

motion to suppress, in which Cardenas conceded that she executed multiple Miranda

rights waivers, but she contends the waivers

were the result of coercive and deceptive

police conduct. Concluding that Cardenas had

voluntarily waived her Miranda rights before

the first interview, the district judge did not

suppress the statements made at that interview. With respect to the second interview,

however, the judge found that the conduct of

the government “agents was rife with intimidation, coercion, and deception.” Consequently, the judge did not believe that Cardenas had made a knowing and intelligent waiver

of her rights, so the judge suppressed the

statements made at the second interview, then

stayed the trial pending the government’s

appeal of the suppression decision.

II.

A.

“‘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 voluntarinessis

a legal question reviewed de novo.’ Likewise,

‘a district court’s determination regarding the

validity of a defendant’s waiver of his Miranda

rights is a question of law reviewed de novo,

but this court accepts the factual conclusions

underlying the district court’slegal determination unless they are clearly erroneous.”2

 

B.

To counterthe inherentlycoercive nature of

custodial interrogation, under Miranda, “the

prosecution may not use statements, whether

exculpatory or inculpatory, stemming from

custodial interrogation ofthe defendant unless

2 United States v. Solis, 299 F.3d 420, 439 (5th

Cir. 2002) (quoting United States v. Mullin, 178

F.3d 334, 341 (5th Cir. 1999); United States v.

Garcia Abrego, 141 F.3d 142, 171 (5th Cir.

1998)).
5

it demonstrates the use of procedural safeguards effective to secure the privilege against

self-incrimination.” There is no talismanic

incantation of phrases required to satisfy the

strictures of Miranda. See California v. Prysock, 453 U.S. 355, 359 (1981). Nevertheless,

the Miranda safeguards are “most commonly

satisfied bygiving the defendant the customary

Miranda warnings: That he has the right to

remain silent, that anything he says can be used

against him in a court of law, that he has the

right to the presence of an attorney, and that

an attorney will be provided for him if he

cannot afford to hire one.” United States v.

Andrews, 22 F.3d 1328, 1337 (5th Cir. 1994).

Despite these safeguards, custodial interrogation may still be used to elicit confessions.

Once adequate warnings have been given, a

suspect may knowingly and intelligentlywaive

his Miranda rights and agree to answer questions. See, e.g., id. Thus, although one purpose of the Miranda framework is to free

courts from deciding the voluntariness of a

confession under the totality of the circumstances, a similar task devolves on us to determine the voluntariness of a waiver.3

 A defendant’s waiver of his Miranda rightsis effective only if voluntary.

The inquiry whether a valid waiver has

occurred “has two distinct dimensions.

First, the relinquishment of the right must

have been voluntary in the sense that it was

the product of a free and deliberate choice

rather than intimidation, coercion, or deception. Second, the waiver must have

been made with a full awareness of both the

nature of the right being abandoned and the

consequences of the decision to abandon it.

Andrews, 22 F.3d at 1337 (quoting Moran v.

Burbine, 475 U.S. 412, 421 (1986)).

The voluntariness determination ismade on

a case-by-case basis and is viewed under the

totality of the circumstances surrounding the

interrogation. United States v. Reynolds, 367

F.3d 294, 298 (5th Cir. 2004). A crucial

aspect is the presence or absence of coercive

behavior on the part ofthe government. “[t]he

voluntariness of a waiver of [Miranda rights]

has always depended on the absence of police

overreaching, not on ‘free choice’ in any

broader sense of the word.” Connelly v.

Colorado, 479 U.S. 157, 170 (1986).

C.

At the outset, we address the district

judge’s concernoverCardenas’ alleged waiver

of her right to appear before a magistrate

judge. To recap, the record demonstrates that

Cardenas could not be placed on the Friday

9:00 docket because the complaint against her

had not been finalized.4 With respect to the

3

See Missouri v. Seibert, 124 S. Ct. 2601,

2608 (2004) (noting that Miranda sprouted from

“our concern that the ‘traditional totality-of-the-circumstances’ test posed an ‘unacceptably great’ risk that involuntary custodial confessions would escape detection.”).

4

 At oral argument it was suggested that perhaps Cardenas was improperly kept off of the 9:00

a.m. docket. Were this the case, suppression of her

statements made on the morning of May 16 might

be appropriate. See United States v. Causey, 835

F.2d 1527, 1529 (5th Cir. 1988). Nevertheless the

uncontradicted testimony at the suppression hearing was that the delay was solely attributable to the

government’s need to complete the criminal complaint. Nowhere in the record does it appear that

Cardenas has ever challenged that explanation until

oral argument on this appeal. We therefore accept

the district judge’stacit determination that thisfirst

delay was not the result of any improper behavior

(continued...)
6

2:00 p.m. docket, the district judge found that

the government had succeeded, just two minutes before the 2:00 hearing, in persuading

Cardenas to waive her right to appear before

the magistrate judge. According to the government, at the 2:00 court appearance, a

representative of the Federal Public Defenders

office (though he would not be formally appointed to represent Cardenas untilthe following Monday) agreed to postpone her appearance until after the weekend. Cardenas, for

her part, argues that because the public defender had not yet been appointed, he could

not effectively agree to such an extension. 

It appears that in suppressing Cardenas’s

second statement the district judge relied, to

some extent, on what she perceived as inappropriate behavior with respect to Cardenas’s

right to an initial appearance. Cardenas, on

appeal, contends that she did not voluntarily

waive her right to an appearance and, as a

result, the suppression of her statement is

appropriate. 

“A person making an arrest within the

United States must take the defendant without

unnecessary delay before a magistrate judge .

. . .” FED. R. CRIM. P. 5(a)(1)(A) (emphasis

added). Where a violation of Rule 5(a) is

shown, the appropriate remedy isthe suppression of any evidence obtained as a result of the

delay. Causey, 835 F.2d at 1529.5

Nevertheless, assuming arguendo that Cardenas’s initial appearance was unnecessarily

delayed, only evidence that resulted from the

delay would need to be suppressed. A defendant is not prejudiced where “[h]e had already

signed a confession and nothing happened in

the interval [caused by the unnecessary delay]

to damage him or to affect his defense adversely.” Id.

By the district judge’s own findings of fact,

Cardenas’ssecond interview took place before

the waiver form (which contained a waiver of

the right to an appearance) was signed at 1:58

p.m. Thus, no evidence was elicited as a result

of the delay. Cardenas therefore can demonstrate no prejudice. 

Even if we were to believe that Cardenas

was coerced at 1:58 into waiving her right to

a prompt appearance before a magistrate

judge, the suppression of hersecond statement

would not be an appropriate remedy, because

there would be no causal connection between

the two. Any references in the district judge’s

decision, or Cardenas’s brief, to the failure to

present Cardenas promptly to a magistrate

judge are therefore beside the point and cannot

support the suppression of Cardenas’s second

statement.

D.

The district judge did not challenge the

validity of Cardenas’s waiver of her rights

before the first interview. Presumably, therefore, the judge found that Cardenas had voluntarilymade a knowing and intelligent waiver of

her rights to remain silent and to have counsel

present during questioning. This means that at

some point between Thursday evening’s and

Friday morning’s interviews, Cardenas either

(1) forgot the nature or significance of her

rights or (2) chose to exercise them but had

her will overridden by intimidation, coercion,

or deception. 

4

(...continued)

on the part of government personnel.

5

See also Mallory v. United States, 354 U.S.

449, 453 (1957) (deeming it “necessary to render

inadmissible incriminating statements elicited from

defendants during a period of unlawful detention”).
7

We have never held that a new recitation of

rights is required with every break in interrogation. We have found it “incomprehensible”

that over a three hour span the defendant went

fromknowing and understanding the nature of

his rights to forgetting them and therefore

making an unintelligent decision to speak to

police. Evans v. McCotter, 790 F.2d 1232,

1238 (5thCir. 1986). Here, neither the district

judge nor Cardenas has contended that a

similar onset of amnesia took place. Therefore, ifCardenas’ssecond waiver ofrights was

involuntary, it must have been the result of the

conduct of the government, which the district

judge called “rife with intimidation, coercion,

and deception.”

Even without challenging any ofthe district

judge’s specific factual determinations, it is

difficult to see how the totality of the circumstancesindicatesCardenas’s waiver wasinvoluntary. The district judge reasonably determined that contrary to the agents’ testimony,

Cardenas did not sign the written waiver form

until just before the 2:00 p.m. hearing. Nevertheless, it is undisputed that Martinez orally

reviewed Cardenas’s Miranda rights with her,

the same rights she had waived the previous

evening. The district judge concluded,

Although he had the written waiver document available to him and, in fact, required

the Defendant to sign it, the AUSA did not

read the document to the Defendant and

neglected to advise her that, by signing the

statement, she would also “give up [her]

rightsto appear before aFederalMagistrate

or other official for an initial appearance

and to have such Magistrate or other official advise [her] of [her] rights, and make a

probable cause determination.” . . . In

fact, the totality of the evidence indicates

that the AUSA took her statement in the

morning, after orally giving her some of her

rights, and then, at 1:58 p.m., immediately

before the scheduled 2:00 p.m. magistrate

docket, had the Defendant sign a form

waiving her right to appear before the

Magistrate to be advised of her rights by

this neutral judicial officer.

(Brackets and emphasis in original.) 

The record contains uncontroverted testimony that the oral recitation of what the

district judge dubbed “some” of the defendant’s rights included her right to remain

silent, her right to an attorney, and the right to

have an attorney appointed free of charge.

The record also indicates, without any contradicting testimony, that Cardenas said she

understood these rights and still wished to

speak with Martinez. In fact, the only right

that was not discussed with Cardenas was her

right to an initial appearance. Yet, as we have

shown, no prejudice resulted from any delay in

bringingCardenas before the magistrate judge.

Because the second interview took place in the

morning of May 16 and was completed before

the beginning of the 2:00 docket, no statement

was taken as a result of any unwarranted

delay.

Therefore, despite the district judge’s

conclusion that Cardenas did not sign the

written waiver form until 1:58 p.m. (after

giving herstatement), the record demonstrates

that Cardenas(1) was twice read her Miranda

rights on the previous evening and voluntarily

waived them, and (2) was orally reminded of

those rights the next morning, at which time

she again chose to waive her rights. The

absence of the execution of the written waiver

formbefore to the second interview, therefore,

does not demonstrate that Cardenas waived

her rights involuntarily.

As other evidence of police “intimidation,
8

coercion, and deception,” the district judge

pointed to the fact that the government agents

accused her of lying in her first statement and

“warned her that the only way she could help

herself now was to talk to the AUSA.” The

agents also encouraged her to cooperate with

the government as a witness. We have never

held that these sorts of customary police

tactics constitute such gross intimidation or

coercion so as to overcome a defendant’s free

will and render his statements inadmissable.6

The district judge also relied on the fact

that Cardenasremained handcuffed during the

second interview. Such basic police procedures as restraining a suspect with handcuffs

have never been held to constitute sufficient

coercion to warrant suppression.7

The district judge also placed emphasis on

the fact that,

once the defendant wastaken to the AUSA

for further interrogation, she was placed in

a chair and questioned in the presence of

four men, including the AUSA and the

three agents. Three of these men were

present throughout the entire interview, but

oneSSOvalleSSwas walking in and out of

the room, discussing the case on his cell

phone in a manner that the Court perceives

was designed to intimidate the Defendant

by suggesting urgency.

As a threshold matter, we know of no case in

which the fact that the interrogating officers

were men or women has been determinative of

a statement’s admissibility. In fact, the adoption of such a presumption would raise equal

protection concerns.8 Without any reference

to even the agents’ physical stature, let alone

any supposedly intimidating tactics employed,

the sex of one’s interrogators cannot serve as

the basisforsuppression, at least not under the

facts of the present case.

No more credence can be given to the

court’s emphasis on the number of agents

present. Were there only one agent present,

we might hear a defendant complain that the

absence of corroborating witnesses renders a

confession suspect. Indeed, the district judge

went on to argue that the lack of electronic

transcription of Cardenas’s second statement

militates toward suppressing it. This concern

would only be exaggerated by the presence of

merely one agent.

6

See United States v. Bell, 367 F.3d 452, 462

(5th Cir. 2004); United States v. Paden, 908 F.2d

1229, 1235 (5th Cir. 1990) (“Encouraging a

defendant to tell the truth, however, does not render

a statement involuntary.”); United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir. 1978)

(“[T]elling the [defendant]in a noncoercivemanner

ofthe realistically expected penalties and encouraging her to tell the truth is no more than affording

her the chance to make an informed decision with

respect to her cooperation with the government.”);

United States v. Tatum, 121 F.Supp.2d 577, 587

(E.D. Tex. 2000) (“[E]ncouraging the defendant to

be honest is not so coercive as to render the defendant’s incriminating statements involuntary.”);

accord United States v. Nguyen, 155 F.3d 1219,

1223 (10th Cir. 1998).

7

See United States v. Rico, 51 F.3d 495, 507

(5th Cir. 1995); United States v. Ogden, 572 F.2d

501, 502 (5th Cir. 1978) (“The fact that defendant

was wearing handcuffs does not indicate or even

suggest that he was coerced.”).

8

See Caban v. Mohammed, 441 U.S. 380, 398

(1979) (“[G]ender-based statutory classifications

deserve careful constitutional examination because

they may reflect or operate to perpetuate mythical

or stereotyped assumptions about the proper roles

and the relative capabilities of men and women that

are unrelated to any inherent differences between

the sexes.”).
9

Furthermore, under the district judge’s

logic, the use of a cell phone during an interview with a suspect contributes to a finding of

intimidation. We disagree. It cannot logically

be said that their use necessarily rendersinvoluntary a defendant’s decision to waive

Miranda rights. If anything, the use of a cell

phone by an interrogating officer might be

interpreted as a lack of interest in the goings

on of the interview and removes a sense of

urgency from the questioning.

The district judge also relied on the lack of

immediate transcription of Cardenas’ second

statement asfurther evidence ofitsinvoluntary

nature. That is, somehow, the judge believed

the lack of a written copy of the statement,

while obviously undercutting the weight of

such a confession, indicates that Cardenas’s

waiver of her Miranda rights was somehow

the result of coercion or intimidation. On

appeal, Cardenas buttresses this argument by

pointing out that several jurisdictions require

the recording of interviews to ensure their

admissibility.9 Neither this court nor the

Supreme Court, however, has ever held that

such a requirement is necessaryto complywith

the FifthAmendment’s protection against selfincrimination.

Although the testimony of a police officer

or prosecutor will often be believed over the

contradictory account of an accused, this is a

problem that goes to the weight to be given to

such evidence by the jury, not the voluntary

nature of one’s waiver of Miranda rights. In

fact, from the record, it does not appear

Cardenas would have any indication that her

statement would not be recorded at the time

she waived her Miranda rights. Were we the

factfinder, we might well be suspect of the

accuracy of Ovalle’s account of the second

interview, given his periodic absence from the

conference room. Nevertheless, such questions are customary grist for the jury mill and

do not raise constitutional concerns.

E.

In conclusion, Cardenas was informed of,

and waived, her Miranda rights at least three

times before giving the second statement that

the district judge suppressed. Throughout this

time, the conduct of the government agents

was no more coercive or intimidating than can

regularly be expected from the very nature of

custodial interrogation. There is no indication

that Cardenas’s willwas overridden or that she

did not understand the nature of the rights she

was waiving. Under the totality of the circumstances, therefore, the waiver of her Miranda

rights was voluntary, and the statement should

be admitted.

The order of the district judge is

REVERSED, and this matter is REMANDED

for further proceedingsin accordance with this

opinion.

9

See, e.g., Stephan v. State, 711 P.2d 1156,

1161 (Alaska 1985); State v. Scales, 518 N.W.2d

587, 592 (Minn. 1994).