United States v. Jeronimo Botello-Rosales

728 F.3d 865

9th Cir.

2013

Check Treatment

Docket

UNITED STATES of America, Plaintiff-Appellee, v. Jeronimo BOTELLO-ROSALES, Defendant-Appellant.

No. 12-30074.

United States Court of Appeals, Ninth Circuit.

July 15, 2013.

728 F.3d 865

Submitted April 25, 2013.*

therefore did not waive the right to the grievance process. The defendants did not file the lawsuit or engage in extensive discovery. See Southeastern Stud & Components, Inc., 588 F.3d at 968. They did not seek to serve discovery requests after the adversary proceeding commenced, or move to continue the case. See Lewallen, 487 F.3d at 1091, 1093. They did not present “multiple matters of first impression.” See Hooper, 589 F.3d at 921. This is not a case where “a party actively litigates a case for an extended period only to belatedly assert that the dispute should have been arbitrated, not litigated, in the first place.” Nino v. Jewelry Exch., Inc., 609 F.3d 191, 209 (3d Cir.2010). The litigation at issue here was not an alternative to the grievance process; it was to determine whether ABF must use the process.

ABF points out that the defendants “did not ask the district court to stay or dismiss ABF‘s lawsuit pending resolution of the grievance proceeding.” That was appropriate, since they contended ABF was not a party to the NMFA and therefore had no access to the grievance process. The fact that a year passed before the defendants raised the exhaustion issue does not change the fact that they were doing “all [they] could reasonably have been expected to do to make the earliest feasible determination of whether to proceed judicially or by arbitration.” Lewallen, 487 F.3d at 1091, quoting Cabinetree, 50 F.3d at 391.

ABF adds that “YRC has waived its right for the additional reason that it has taken inconsistent and confusing legal positions regarding the enforceability of the contract, belatedly invoking the NMFA grievance process as a defense in this litigation while also insisting that it has no agreement (and thus no grievance mechanism with ABF).” To the contrary, YRC‘s alternative positions are not confusing. As YRC says, “YRC is not suddenly agreeing that ABF is a party to the NMFA, as ABF contends. Rather, YRC is accepting for purposes of a motion to dismiss ABF‘s allegation that ABF is a party to the same collective bargaining agreement as YRC (albeit noting clearly that YRC disagrees with the allegation).”

Because the defendants did not act inconsistently with the right to the grievance process, this court need not consider the element of prejudice. See Dumont, 258 F.3d at 887.

V.

The decision of the district court is affirmed.

Michael R. Levine, Levine & McHenry LLC, Portland, OR, for Defendant-Appellant.

S. Amanda Marshall, United States Attorney, District of Oregon; Kelly A. Zusman, Appellate Chief, Assistant United States Attorney; Leah K. Bolstad and Jennifer J. Martin, Assistant United States Attorneys, Office of the United States Attorney, Portland, OR, for Plaintiff-Appellee.

Before: HARRY PREGERSON, KIM McLANE WARDLAW, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

PER CURIAM:

Jeronimo Botello-Rosales appeals the district court‘s denial of his motion to suppress his post-arrest statements to law enforcement officers. After the district court denied the motion to suppress, Botello entered a conditional guilty plea to conspiracy to manufacture marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), and 846, and possession of a firearm by a person unlawfully in the United States in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

The district court erred in denying Botello‘s suppression motion because the Spanish-language warning administered to Botello before he was interrogated failed to “reasonably convey” to Botello “his rights as required by Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)].” Florida v. Powell, 559 U.S. 50, 130 S.Ct. 1195, 1204, 175 L.Ed.2d 1009 (2010) (internal quotation marks omitted) (quoting Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989); California v. Prysock, 453 U.S. 355, 361, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981) (per curiam)). The district court correctly found that Detective Salas gave the following Miranda warning to Botello in the Spanish language:

You have the right to remain silence.

Anything you say can be used against you in the law.

You have the right to talk to a lawyer and to have him present with you during the interview.

If you don‘t have the money to pay for a lawyer, you have the right. One, who is free,¹ could be given to you.

As the district court concluded, this warning failed to reasonably convey the government‘s obligation to appoint an attorney for an indigent suspect who wishes to consult one.² See Powell, 130 S.Ct. at 1204; Miranda, 384 U.S. at 473, 86 S.Ct. 1602; United States v. Perez-Lopez, 348 F.3d 839, 848 (9th Cir.2003).

The detective used the Spanish word “libre” to mean “free,” or without cost. After hearing testimony from lay and expert witnesses, the district court concluded that this usage of “libre” to mean “without cost” was not a correct translation. “Libre” instead translates to “free” as in being available or at liberty to do something. Additionally, the phrasing of the warning—that a lawyer who is free could be appointed—suggests that the right to appointed counsel is contingent on the approval of a request or on the lawyer‘s availability, rather than the government‘s absolute obligation. See Perez-Lopez, 348 F.3d at 848 (“To be required to ‘solicit’ the court, in the words of [the] warning, implies the possibility of rejection.“). While no “talismanic incantation” is required, Prysock, 453 U.S. at 359, 101 S.Ct. 2806, such an affirmatively misleading advisory does not satisfy Miranda‘s strictures. See Perez-Lopez, 348 F.3d at 848.³

That officers had previously administered correct Miranda warnings in English to Botello does not cure the constitutional infirmity. Even if Botello understood the English-language warnings, there is no indication in the record that the government clarified which set of warnings was correct. See United States v. San Juan-Cruz, 314 F.3d 384, 388, 389 (9th Cir.2002) (“When a warning, not consistent with Miranda, is given prior to, after, or simultaneously with a Miranda warning, the risk of confusion is substantial, such that the onus is on the Government to clarify to the arrested party the nature of his or her rights under the Fifth Amendment.“). Absent such a clarification, Botello cannot be charged with “sufficient legal or constitutional expertise to understand what are his ... rights under the Constitution.” San Juan-Cruz, 314 F.3d at 389 (citing Miranda, 384 U.S. at 472, 86 S.Ct. 1602).

Because the warnings administered to Botello did not reasonably convey his right to appointed counsel as required by Miranda, his subsequent statements may not be admitted as evidence against him. See Miranda, 384 U.S. at 479, 86 S.Ct. 1602. We therefore reverse the district court‘s denial of Botello‘s motion to suppress. Because Botello‘s guilty plea was conditioned upon the right to seek review of the adverse determination of his motion to suppress, we vacate Botello‘s conviction and remand to the district court with instructions to allow Botello to withdraw his guilty plea and for further proceedings consistent with this disposition.

REVERSED; VACATED; REMANDED.

PER CURIAM

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

Notes

The detective used the Spanish word “libre” to indicate “free.” As explained below, the district court found that this was not a correct translation.

The Government concedes that the district court‘s further conclusion that “it is more probable than not that Botello actually understood his Miranda right” is irrelevant.

Because we reverse on the basis of the inadequate warning of the right to appointed counsel, we do not reach Botello‘s contention that the detective‘s warning failed to reasonably convey the second Miranda warning, that anything he said could be used against him in a court of law.

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