United States v. Navarro-Zuniga

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2025
• Docket: 23-1448
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-1448 D.C. No. Plaintiff - Appellee, 3:19-mj-23353-WVG-BTM-1 v. MEMORANDUM*

ARTURO NAVARRO-ZUNIGA,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, District Judge, Presiding

Submitted February 4, 2025** Pasadena, California

Before: MILLER, LEE, and DESAI, Circuit Judges.

Arturo Navarro-Zuniga appeals his misdemeanor conviction for attempted

illegal entry into the United States, in violation of 8 U.S.C. § 1325. He argues that

the magistrate judge erred in denying his motions to suppress his confessions. We

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). have jurisdiction under 28 U.S.C. § 1291, and we affirm.

On appeal from a district court’s order affirming a conviction, we review the

magistrate judge’s decision directly, giving no deference to the district court. See

United States v. Stanton, 501 F.3d 1093, 1099–1101 (9th Cir. 2007). “We review

the adequacy of Miranda warnings de novo.” United States v. Gonzalez-Godinez,

89 F.4th 1205, 1208 (9th Cir. 2024). We review for clear error a determination that

Border Patrol agents did not deliberately engage in an impermissible two-step

interrogation. United States v. Narvaez-Gomez, 489 F.3d 970, 974 (9th Cir. 2007).

1. The agent gave Navarro-Zuniga an adequate warning under Miranda v.

Arizona before questioning him after his arrest and booking interview. 384 U.S.

436 (1966); see United States v. Miguel, 952 F.2d 285, 288 (9th Cir. 1991).

Although a warning communicating the right to counsel requires no “‘talismanic

incantation,’” it cannot be “equivocal and open to misinterpretation.” United States

v. Connell, 869 F.2d 1349, 1351, 1353 (9th Cir. 1989) (quoting California v.

Prysock, 453 U.S. 355, 359 (1981) (per curiam)).

Navarro-Zuniga argues that his Miranda warning was impermissibly

equivocal because he was told (in Spanish) that if he did not have the money to

hire an attorney, he “can”—rather than “will”—be appointed one if he “so

wish[es].” Because the magistrate judge did not make a factual finding as to

whether the Spanish words used in the warning meant “can” or “will” in context,

2 23-1448 we assume without deciding that they meant “can.” Even so, the warning here was

adequate. In Miguel, we approved a Miranda warning telling the suspect that he

“may” have an attorney appointed. 952 F.2d at 288. In this context, “can” and

“may” are synonymous. And here, unlike in Miguel, the word indicating possibility

was accompanied by “if you so wish,” emphasizing that Navarro-Zuniga needed

only to express his desire for counsel to trigger his right.

Navarro-Zuniga also argues that the warning was “affirmatively misleading”

because it was accompanied by an advisement of consular rights that suggested it

was up to the Mexican government to help him find a lawyer. United States v. San

Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002). But if “there was no clear conflict

between the two warnings,” then the Miranda warning was “not ‘affirmatively

misleading.’” Gonzalez-Godinez, 89 F.4th at 1209 (quoting San Juan-Cruz, 314

F.3d at 387). There was no conflict between the consular warning that “[a]mong

other things a consular officer of your country can help you obtain legal counsel”

and the Miranda warning that Navarro-Zuniga could have counsel appointed if he

so wished. See Connell, 869 F.2d at 1352–53 (combination of oral warning that “a

lawyer may be appointed to represent you” and written warning that “you must

make your own arrangements to obtain a lawyer and this will be at no expense to

the government” was “affirmatively misleading”).

2. The magistrate judge did not clearly err in determining that the agents did

3 23-1448 not deliberately engage in a two-step interrogation. See Narvaez-Gomez, 489 F.3d

at 974. In analyzing whether a two-step interrogation was “deliberate,” we consider

“objective evidence and any available subjective evidence.” Id. (quoting United

States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006)). “Objective evidence

includes ‘the timing, setting and completeness of the prewarning interrogation, the

continuity of police personnel and the overlapping content of the pre- and post-

warning statements.’” Id. (quoting Williams, 435 F.3d at 1159).

The magistrate judge correctly noted the “causal disconnection between the”

pre- and post-warning interviews. The interviews occurred at least two hours apart,

there is no indication that they occurred in the same room, and the pre-warning

interview was a brief booking interview that did not cover where, how, and why

Navarro-Zuniga entered the United States. And the agent who conducted the post-

warning interview had not even started his shift when the booking interview

occurred. Although Navarro-Zuniga correctly points to substantial overlap in the

content of the pre- and post-warning interviews, the magistrate judge’s

determination was not “illogical, implausible, or without support in the record.”

United States v. Fitch, 659 F.3d 788, 797 (9th Cir. 2011) (quoting United States v.

Spangle, 626 F.3d 488, 497 (9th Cir. 2010)).

3. We do not reach the question of whether Navarro-Zuniga’s pre-arrest

confession should have been suppressed. Even assuming that Navarro-Zuniga’s

4 23-1448 pre-arrest confession must be suppressed, extrinsic evidence supports his valid

post-booking confession, thereby satisfying the corpus delicti requirement. See

Gonzalez-Godinez, 89 F.4th at 1210–11. An agent found Navarro-Zuniga hiding

under a bush in a remote area near the border that is inaccessible to the public and

commonly used for unlawful entry. He did not possess any recreational items.

Navarro-Zuniga was also with someone who fled as soon as the agent approached.

AFFIRMED.

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