United States v. Cardenas

United States Court of Appeals
Fifth Circuit
F I L E D
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 partici-
pants 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 re-
peatedly, 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).

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2
for impeachment. Such issues of evidentiary
weight, however, have no bearing on Fifth
Amendment analysis. It was, therefore, pa-
tently incorrect as a matter of law for the
district judge to conclude that, viewing the
decision in light of the totality of the circum-
stances, Cardenas’s waiver was involuntary.
I.
In May 2003, agents of United States
Immigration and Customs and Enforcement
(“ICE”) were engaged in an ongoing investi-
gation of a large-scale alien smuggling organi-
zation operating out of the Rio Grande Valley
and bringing undocumented aliens from Mex-
ico 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 under-
cover investigation, 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) deliv-
ered 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 identi-
fied 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 his firearm to another agent (as
he was excoriated by a superior for his danger-
ous decision to handle both the gun and the
baby), and placed the infant in an air-condi-
tioned 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 of the standard advice
of rights form to her in Spanish. After each
line, Ovalle translated it into English. Carden-
as, 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 re-
viewed the statement with her, and she con-
firmed 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

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Miranda rights. During the interview, Carden-
as 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 t he 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 Mar-
shal’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 morn-
ing, agents transported 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 com-
pleted, 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 inves-
tigation and the statement given by Cardenas
the previous evening. Concluding that the
statement was not entirely accurate, Martinez
received authorization to seek further coopera-
tion 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,
telling her they believed her previous statement
was untruthful. Cardenas then indicated she
wished to speak to Martinez. Handcuffed, she
was brought from the detention area to a
conference room in the U.S. Attorney’s office.
What occurred at this point is the matter of
some dispute. According to the government,
agents again read Cardenas 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 of the
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 wav-
ing 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
when Martinez arrived in the conference room,
he reviewed with Cardenas her Miranda rights
“very, very carefully, very slowly, very deliber-
ately.” 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

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4
this interview but did not electronically tran-
scribe Cardenas’s answers. Instead, he testi-
fied 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 inter-
view 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 al-
legedly 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, Carden-
as’s statement at the U.S. Attorney’s office in
McAllen differed significantly from her state-
ment 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, accord-
ing 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 con-
ceded 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 inter-
view. With respect to the second interview,
however, the judge found that the conduct of
the government “agents was rife with intimi-
dation, coercion, and deception.” Conse-
quently, the judge did not believe that Carden-
as 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 errone-
ous,’ but ‘the ultimate issue of voluntariness is
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’s legal determina-
tion unless they are clearly erroneous.”2
B.
To counter the inherently coercive nature of
custodial interrogation, under Miranda, “the
prosecution may not use statements, whether
exculpatory or inculpatory, stemming from
custodial interrogation of the 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)).

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it demonstrates the use of procedural safe-
guards 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. Pry-
sock, 453 U.S. 355, 359 (1981). Nevertheless,
the Miranda safeguards are “most commonly
satisfied by giving 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 interro-
gation may still be used to elicit confessions.
Once adequate warnings have been given, a
suspect may knowingly and intelligently waive
his Miranda rights and agree to answer ques-
tions. See, e.g., id. Thus, although one pur-
pose of the Miranda framework is to free
courts from deciding the voluntariness of a
confession under the totality of the circum-
stances, a similar task devolves on us to deter-
mine the voluntariness of a waiver.3 A de-
fendant’s waiver of his Miranda rights is effec-
tive 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 de-
ception. 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 is made 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 of the 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 concern over Cardenas’ 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 totali-
ty-of-the-circumstances’ test posed an ‘unaccept-
ably great’ risk that involuntary custodial confes-
sions would escape detection.”).
4 At oral argument it was suggested that per-
haps 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 hear-
ing was that the delay was solely attributable to the
government’s need to complete the criminal com-
plaint. 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’s tacit determination that this first
delay was not the result of any improper behavior
(continued...)

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2:00 p.m. docket, the district judge found that
the government had succeeded, just two min-
utes before the 2:00 hearing, in persuading
Cardenas to waive her right to appear before
the magistrate judge. According to the gov-
ernment, at the 2:00 court appearance, a
representative of the Federal Public Defenders
office (though he would not be formally ap-
pointed to represent Cardenas until the follow-
ing Monday) agreed to postpone her appear-
ance until after the weekend. Cardenas, for
her part, argues that because the public de-
fender 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 inap-
propriate 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 is the suppres-
sion of any evidence obtained as a result of the
delay. Causey, 835 F.2d at 1529.5
Nevertheless, assuming arguendo that Car-
denas’s initial appearance was unnecessarily
delayed, only evidence that resulted from the
delay would need to be suppressed. A defen-
dant 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 ad-
versely.” Id.
By the district judge’s own findings of fact,
Cardenas’s second 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 demon-
strate 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 her second 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, there-
fore, the judge found that Cardenas had volun-
tarily made 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 o r 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”).

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We have never held that a new recitation of
rights is required with every break in interro-
gation. We have found it “incomprehensible”
that over a three hour span the defendant went
from knowing 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 (5th Cir. 1986). Here, neither the district
judge nor Cardenas has contended that a
similar onset of amnesia took place. There-
fore, if Cardenas’s second waiver of rights 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 of the district
judge’s specific factual determinations, it is
difficult to see how the totality of the circum-
stances indicates Cardenas’s waiver was invol-
untary. The district judge reasonably deter-
mined that contrary to the agents’ testimony,
Cardenas did not sign the written waiver form
until just before the 2:00 p.m. hearing. Never-
theless, 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 docu-
ment 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]
rights to appear before a Federal Magistrate
or other official for an initial appearance
and to have such Magistrate or other offi-
cial 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 testi-
mony that the oral recitation of what the
district judge dubbed “some” of the defen-
dant’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 contra-
dicting 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
bringing Cardenas 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 her statement), 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
form before to the second interview, therefore,
does not demonstrate that Cardenas waived
her rights involuntarily.
As other evidence o f police “intimidation,

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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 Cardenas remained handcuffed during the
second interview. Such basic police proce-
dures 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 was taken 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 adop-
tion 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 basis for suppression, 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. Bal-
lard, 586 F.2d 1060, 1063 (5th Cir. 1978)
(“[T]elling the [defendant] in a noncoercive manner
of the realistically expected penalties and encourag-
ing 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 de-
fendant’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.”).

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9
Furthermore, under the district judge’s
logic, the use of a cell phone during an inter-
view with a suspect contributes to a finding of
intimidation. We disagree. It cannot logically
be said that their use necessarily renders invol-
untary 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 as further evidence of its involuntary
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 necessary to comply with
the Fifth Amendment’s protection against self-
incrimination.
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 ques-
tions 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 will was overridden or that she
did not understand the nature of the rights she
was waiving. Under the totality of the circum-
stances, 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 proceedings in 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).

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