Submitted April 25, 2013 [*]
Appeal from the United States District Court for the District of Oregon D.C. No. 3:08-cr-00385-RE-2 Anna J. Brown, District Judge, Presiding
Michael R. Levine, Levine & McHenry LLC, Portland, Oregon, 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, Oregon, for Plaintiff-Appellee.
Before: Harry Pregerson, Kim McLane Wardlaw, and Milan D. Smith, Jr., Circuit Judges.
Reversing the denial of a motion to suppress post-arrest statements, vacating a conviction, and remanding for further proceedings, the panel held that the Spanish-language warning administered to the defendant failed to reasonably convey his Miranda rights, where the detective incorrectly used the Spanish word "libre" to mean "free, " or without cost, and where 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.
The panel held that the fact that the officer had previously administered correct Miranda warnings in English does not cure the constitutional infirmity, absent government clarification as to which set of warnings was correct.
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 (1966)]." Florida v. Powell, 130 S.Ct. 1195, 1204 (2010) (internal quotation marks omitted) (quoting Duckworth v. Eagan, 492 U.S. 195, 203 (1989); California v. Prysock, 453 U.S. 355, 361 (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 ...