UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40002

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JUVENTINO ALVARADO-SALDIVAR,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

( August 17, 1995 )

Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:

Appellant, Juventino Alvarado-Saldivar ("Alvarado") appeals

his conviction for conspirac y

, possession, and importation of

marih uana and cocaine, with the intent to distribute. Appellant

contends that the trial court's failure to suppress statements he

made to officers during a custodial interrogation requires reversal

of his convictions. We reject his argument and affirm the

convictions.

FACTS

Around 8:30 a.m. on August 12, 1994, United States Border2

Patrol Agents Terry Hunt ("Hunt") and Noe Vasquez ("Vasquez") were

stationed in the brush along a trail used for alien and drug

trafficking located near San Pedro, Texas, one mile from the Rio

Grande River. They spotted Alvarado walking slowly north on the

trail. Vasquez stepped out of the brush and, in Spanish,

identified himself as immigration, told Alvarado to raise his

hands, kneel down and keep quiet. Instead of complying with

Vasquez's instructions, Alvarado turned and yelled back toward the

south i n Spanish, "Don't come. Go back. Don't come anymore,"

using the plural expression as if he were speaking to more than one

person. Alvarado ultimately complied with the officer's requests,

and Vasquez handcuffed him. Hunt arrived at the scene momentarily,

and told Vasquez that he had seen two other men drop some bundles,

and head south down the trail. The two men escaped, but Hunt

retrieved the bundle s

, which tests later determined contained

marijuana and cocaine.

After searching the area, Vasquez and Hunt took Al varado to

the Harlingen Border Patrol Station. Vasquez gave him M iranda

warnings orally in Spanish at the time of his arrest and in written

Spanish at the station. After providing some information and

statements, Alvarado stated that he did not want to say anything

else. Vasquez testified that he understood that Alvarado was

invoking his right to remain silent. However, he asked Alvarado if

he would answer questions on an "I-213 Deportation Form" regarding

his identification and when he had crossed the river. After

Alvarado had answered the questions on this form as to his name,3

date and plac e of birth and address, he reiterated that he had

nothing else to say. Alvarado and the bundles of drugs were turned

over to Drug Enforcement Administration ("DEA") Agent Larry

Councilman ("Councilman") and Investigator Ricardo Perez ("Perez")

of the Cameron County, Texas Sheriff's Department.

Councilman and Perez transported Alvarado to the DEA office in

Brownsville where he was photographed and finger printed by Agent

William Newell ("Newell"). Newell testified that he asked whether

Alvarado was willing to speak to law enforcement agen ts, and

Councilman said that he was. Newell was not told that Alvarado had

previously invoked his right to remain silent. In the subsequent

interview, after Newell once again read him his rights in Spanish,

Alvarado made the two statements that he now claims should have

been suppressed. First, he said that he had been set up by the

Border Patrol, because they were out to get him. Second he offered

to become an informant for the DEA.

PROCEEDINGS BELOW

Alvarado fi led a motion to suppress, claiming that the

statements made to the arresting immigration officers and later to

the agents of the DEA were not voluntarily given. At the pre-trial

suppression hearing, Alvarado argued that his statements should be

suppressed because he was injured during the arrest, and was

thereby coerced i nto giving statements. The district court held

that the government was not to elicit any evidence regarding an

incident not relevant to this appeal, but denied the motion to

suppress as to all other matters, finding "no indication whatsoever4

that the statements made to the DEA agents were involuntarily made

or that there was any coercion or force or any improper matters

engaged in by the DEA agent." Alvarado's statements made to Newell

were introduced into evidence at trial.

ADMISSIBILITY OF STATEMENTS MADE TO DEA AGENT NEWELL

Alvarado argues that the statements made to Newell should not

have been admitted into evidence because law enforcement agents did

not scrupulously honor his right to remain silent after he

communicated his desire t o cease talking, relying on M ichigan v.

Mosley , 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

a. Standard of review.

Although Alvarado filed a mo tion to suppress all of his

statements to law enforcement officers, i ncluding those that are

the focus of this appeal, he argued to the district court that he

was entitled to suppression because his statements were coerced by

physical violence. He did not argue, either in his written motion

or in open court, that use o f his statements violated his Fifth

Amendment right to remain silent under the test set forth in

Michigan v. Mosley

, 423 U.S. 96 (1975). Because Alvarado raised

this question for the first time on appeal, we review it for plain

error. F E D

. R. C RIM

. P. 52(b); United States v. Calverley

, 37 F.3d

160, 162 (5th Cir. 1994), cert. denied , 115 S.Ct. 1441 (1995). An

appellant who raises an issue for the first time on appeal has the

burden to show that there is actually an error, that it is plain,

and that it affects substantial rights. U nited States v. Olano

,

___U.S.___, 113 S.Ct. 1770, 1777-78 (1993). If these factors are5

established, the decision to correct the forfeited error is within

the sound discretion of the court, and the court will not exercise

t hat discretion unless the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id. 113

S.Ct. at 1778.

b. Did the district court plainly err?

Alvarado contends that because he invoked his right to remain

silent while Vasquez was questioning him, any questions put to him

later by Newell necessari ly violated his Fifth Amendment rights.

The admissibility of a defendant's statements made as a result of

custodial interrogation after the defendant has invoked his right

to remain silent is governed, as Alvarado contends, by Michigan v.

Mos ley , 423 U.S. 96 (1975). "The admissibility of statements

obtained after the person in custody has decided to remain silent

depends under Miranda on whether his 'right to cut off questioning

was 'scrupulously honored.'" Mosley , 423 U.S. at 104, 96 S.Ct. at

326 (quoting Miranda v. Arizona

, 384 U.S. 436, 479, 86 S.Ct. 1602,

16 30, 16 L.Ed.2d 694 (1966)). With no bright line test, courts

must evaluate the facts of each case to determine if the resumption

of police interrogation was consistent with scrupulous observance

of the right to cut off questioning. W ilcher v. Hargett

, 978 F.2d

872, 877 (5th Cir. 1992).

In Mosley

, the Supreme Court found the following factors

important in determining if the defendant's right to remain silent

was scrupulously honored: (1) whether the suspect was advised prior

to initial interrogation that he was under no obligation to answer6

question; (2) whether the suspect was advised of his right to

remain silent prior to the reinterrogation; (3) the length of time

between the two interro g ations; (4) whether the second

interrogation was restricted to a crime that had not been the

subject of earlier interr ogation; and (5) whether the suspect's

first invocation of rights was honored. Mosley

, 423 U.S. at 104-

105, 96 S.Ct. at 327. Alvarado was advised of his rights before

each of the interrogations; factors one and two weigh in favor of

the government. The record does not afford us enough information

to determine the length of time between the two interrogations for

purposes of the third factor, except to say that they occurred the

same day. This factor weighs neither for nor against Alvarado. In

reference to factor four, both discussions included references to

the drug crime that formed the basis of Alvarado's eventual

conviction. Factor four weighs in favor of Alvarado.

Finally, the question of whether or not the Alvarado's first

invocation of rights was honored was not resolved by the district

court. Alvarado asks us to assume that once he invoked his right

to remain silent, he never changed his mind and answered all

subsequent questions only because of duress or coercion brought to

bear by law enforcement agents. The record does not support this

conclusion. Newell testified that Councilman told him that

Alvarado was willing to talk to him. Councilman had custody of

Alvarado during the ride from Harlingen to Brownsville, and so

Alvarado had ample opport unity to tell Councilman that wished to

talk to the DEA. The nature of his statements to Newell (that he7

had been framed and tha t he wished to become a DEA informant)

support the inference that Alvarado chose to talk to the DEA in an

effort to improve his circumstances. The record contains no

evidence concerning any discussions between Councilman and Alvarado

that would either support or undermine Newell's testimony.

For a fact issue to be properly asserted as plain error on

appeal, it must be one arising outside of the district court's

power to resolve. U nited States v. Lopez

, 923 F.2d 47, 50 (5th

Cir.), cert. denied

, 111 S.Ct. 2032 (1991). Whether Alvarado told

Councilman that he was willing to talk with a DEA agent is a

factual issue that could and should have been determined by the

district court during the hearing on the motion to su ppress.

Alvarado failed to develop the factual basis, make the argument, or

secure a ruli ng by the district court on his contention that the

invocation of his ri ght to remain silent was not scrupulously

honored. Therefore, there is no basis for us to make that

determination. This final M osley factor, standing alone, is enough

to abrogate Alvarado's position in this case.

We conclude that Alvarado has not established that the

district court erred in failing to suppress the statements because

h is right to remain silent was not scrupulously honored.

Therefore, we need not address the remaining plain error factors.

CONCLUSION

For the foregoing reasons, we AFFIRM Alvarado's convictions.