United States v. Bernardo Tellez

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 18, 2014
Decided December 5, 2014
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13-2561
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11-cr- 644-2
BERNARDO TELLEZ,
Defendant-Appellant. James B. Zagel,
Judge.
ORDER
Bernardo Tellez, a native of Mexico whose primary language is Spanish, was
pulled over after law enforcement officers saw him carry into his van a bag believed to
contain drugs. After a short conversation in Spanish with an officer, Tellez told the
officer that he speaks English, and he received Miranda warnings in English. Tellez then
incriminated himself but later moved to suppress those statements, arguing that his
limited command of English prevented him from comprehending the warnings. After
the district court denied that motion, Tellez entered a conditional plea of guilty and
now appeals. Because the district court did not clearly err in concluding that Tellez
understood the warnings, we affirm.
No. 13-2561 Page 2
During an investigation, which included intercepted phone calls, into drug
trafficking in Chicago, agents of the Drug Enforcement Administration learned that
Tellez’s cousin had arranged to deliver heroin. The agents wanted to see the delivery.
They watched the cousin’s residence and saw Tellez and his cousin leave the home, get
into a van, drive a short distance, and return to bring into the home a red duffel bag.
Later that day Tellez left the residence carrying two duffel bags, one of which was red,
and returned to the van. The agents stopped Tellez for a traffic violation after he drove
a few blocks.
Because the intercepted calls were in Spanish, the agents first determined
whether to speak to Tellez in Spanish or English. One agent, a fluent Spanish-speaker,
identified himself and, in Spanish, asked Tellez if he could search the vehicle. Tellez
answered “yes” in English. The agent then asked, again in Spanish, if Tellez had any
guns in the car, and Tellez responded in English, “Guns? No.” The agent then asked
Tellez in Spanish if he spoke English, and Tellez nodded his head. This exchange lasted
about a minute.
Next, a second agent informed Tellez, in English, of his Miranda rights,
see Miranda v. Arizona, 384 U.S. 436 (1966). He paused after reciting each right to ask if
Tellez understood each one. Answering in English after each pause, Tellez answered
“yes” or otherwise told the agent that he understood each right. The agent then asked
Tellez if he was willing to answer questions, and Tellez replied, “yes.”
The second agent then interrogated Tellez. In response to questions about the
contents of the duffel bags, Tellez initially gave one-word answers such as, “drugs,” or
“illegal.” But Tellez later gave more detailed answers to questions about the drug
transaction. He explained how he got the drugs and what he was supposed to do with
them. Tellez also signed a form in English granting consent to search his home, and he
provided biographical information in English. Based on his answers and other evidence,
Tellez was indicted with two counts of possessing heroin with intent to distribute.
See 21 U.S.C. § 841(a)(1).
Tellez moved to suppress his post-arrest statements. He argued that he did not
waive his Miranda rights knowingly and intelligently because agents recited his rights
in English, a language that he does not understand. The court held a suppression
hearing at which it considered evidence of his English-language deficiency. First,
Tellez’s neighbor, who has known him for 15 years, testified that she regularly speaks
No. 13-2561 Page 3
with Tellez in Spanish and that Tellez knows “hardly any” English. She acknowledged,
though, that she has overheard Tellez use some English on the telephone with his boss
(a carpet installer). Second, Tellez’s attorney pointed out that Tellez used an interpreter
during court proceedings and conversations with her and the pretrial detention staff.
Then the government offered evidence in rebuttal. The arresting agents testified how
during the arrest Tellez told them that he understands English. The prosecution also
submitted summaries of two interviews with detention staff who stated that they had
conversed with Tellez in English. And the government furnished a letter, written in
English and signed by Tellez, requesting access to the prison library.
The district court denied the motion, finding that Tellez understood the English-
spoken warnings that he could remain silent and request a lawyer. The court agreed
with Tellez that his understanding of English is limited, but concluded that he knew
enough English to understand the Miranda warnings. The court explained that the
warnings are simple, Tellez had lived in the United States for 15 years at the time of his
arrest, and Tellez gave English responses to all questions, even those posed in Spanish.
Tellez reserved his right to appeal the court’s ruling and entered a conditional plea of
guilty to one count of possessing heroin with intent to distribute. See 21 U.S.C.
§ 841(a)(1). Tellez was sentenced to 70 months in prison.
On appeal Tellez principally argues that he did not knowingly waive his Miranda
rights. He contends that the district court erred by overestimating his understanding of
English based on a short conversation (a minute or less) of simple, “leading” questions
producing mainly one-word responses that did not probe Tellez’s comprehension of
English.
A waiver of Miranda warnings must be both knowing and voluntary.
See Miranda, 384 U.S. at 444; United States v. Vallar, 635 F.3d 271, 284 (7th Cir. 2011). To
decide if his waiver was knowing, the district court had to determine if Tellez knew
enough English to understand what a lawyer is and that he could refuse to talk to the
agents or stop the questioning. See Moran v. Burbine, 475 U.S. 412, 422–23 (1986); Collins
v. Gaetz, 612 F.3d 574, 588 (7th Cir. 2010); Young v. Walls, 311 F.3d 846, 850 (7th Cir.
2002). We review de novo the district court’s conclusion that Tellez’s waiver was
voluntary, but its credibility determinations about historical facts are reviewed for clear
error. United States v. Jackson, 300 F.3d 740, 748 (7th Cir. 2002); United States v. Brooks, 125
F.3d 484, 491 (7th Cir. 1997).
For three reasons the record supports the district court’s finding that Tellez
No. 13-2561 Page 4
understood enough English to waive his Miranda rights intelligently. To begin, when
the first arresting agent questioned him in Spanish, Tellez both answered in English and
told him that he understood English. Second, after another agent recited each Miranda
warning slowly in English, Tellez spoke to him, too, in English, and said that he
understood the warnings and waived them. Third, he has lived in Chicago for 15 years,
and his neighbor has heard him talk to his boss in English which implies that at least at
his job he used and understood some English. Also, at times he communicated with
prison staff in English, and gave detailed answers in English to open-ended questions
from the arresting agents. Although Tellez may not be fluent in English, courts have
concluded that English-spoken responses and English skills similar to Tellez’s are
sufficient to render a knowing waiver. See, e.g., Perri v. Dir., Dep’t of Corrs. of Ill., 817 F.2d
448, 449, 452 (7th Cir. 1987) (concluding that native Italian knowingly waived Miranda
rights, even though he received warnings in an unfamiliar Italian dialect, because he
responded in English that he understood them); United States v. Rodriguez-Preciado, 399
F.3d 1118, 1127–28 (9th Cir. 2005) (ruling that Mexican national with English-language
difficulties knowingly waived Miranda rights because he said that he understood
warnings in English and officers could understand him); United States v. Guay, 108 F.3d
545, 549–50 (4th Cir. 1997) (French-speaking arrestee, who told officer that he could
understand English if spoken slowly, knowingly waived rights); Campaneria v. Reid, 891
F.2d 1014, 1020 (2d Cir. 1989) (concluding that arrestee made knowing waiver despite
broken English and occasional lapses into Spanish).
Tellez replies that the agents could have easily delivered the Miranda warnings in
Spanish because Spanish-speaking agents were nearby. True, the government could
have avoided the problem in this case if the agent who first approached Tellez and
spoke to him in Spanish had also delivered the Miranda warnings in Spanish. But the
availability of Spanish-language warnings does not affect the validity of Tellez’s waiver
because the agents need not have recited warnings in Spanish after they had
determined that Tellez speaks intelligible English. See Rice v. Cooper, 148 F.3d 747,
750–51 (7th Cir. 1998).
Tellez’s final argument hints that, apart from whether the waiver was knowing,
it was not voluntary. He suggests that he answered all of the questions in English only
because he felt vulnerable and during the arrest faced a “power imbalance.” Tellez did
not testify to these assertions in the district court or argue there that his waiver was
involuntary; he argued only that his waiver was not knowing. So this new argument is
forfeited. See United States v. Sarraj, 665 F.3d 916, 919 (7th Cir. 2012) (arguments not
presented to district court are forfeited); Judge v. Quinn, 624 F.3d 352, 360 (7th Cir. 2010)
No. 13-2561 Page 5
(same).
Because the record adequately supports the district court’s conclusion that Tellez
knew enough English to understand his Miranda warnings and waiver, the judgment is
AFFIRMED.