United States v. Jose Alberto Fernandez, 932 F.2d 964, 4th Cir. (1991)
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Scribd Government DocsUnited States v. Jose Alberto Fernandez, 932 F.2d 964, 4th Cir. (1991)
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Scribd Government Docs932 F.
2d 964
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of
unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Alberto FERNANDEZ, Defendant-Appellant.
No. 90-5730.
United States Court of Appeals, Fourth Circuit.
Submitted April 12, 1991.
Decided May 15, 1991.
Appeal from the United States District Court for the Middle District of
North Carolina, at Winston-Salem. Norwood Carlton Tilley, Jr., District
Judge. (CR-90-165-WS)
David B. Freedman, White and Crumpler, Winston-Salem, N.C., for
appellant.
Robert H. Edmunds, Jr., United States Attorney, Paul A. Weinman,
Assistant United States Attorney, Greensboro, N.C., for appellee.
M.D.N.C.
AFFIRMED.
Before WIDENER, CHAPMAN and NIEMEYER, Circuit Judges.
PER CURIAM:
Jose Alberto Fernandez appeals his conviction for conspiracy to possess with
intent to distribute cocaine base ("crack"), in violation of 21 U.S.C. Secs. 841(a)
(1), 841(b)(1)(B), and 846. On appeal he challenges the voluntariness of a
confession and the sufficiency of evidence to convict. We affirm.
2
On April 26, 1990, Winston-Salem police officers stopped a vehicle because its
headlights were not working. Fernandez was one of three occupants of the car.
A search revealed a hidden compartment in the car's trunk. The compartment
contained crack. A subsequent search of Fernandez yielded $960 in cash.
Following his arrest, Fernandez was interviewed by Detective Mike Flowe,
who testified that Fernandez advised him that he and the car's occupants had
been using the car to distribute crack to street dealers in Winston-Salem. A
hearing on the voluntariness of the confession then took place outside the
presence of the jury. Flowe testified that he was fluent in Spanish, that he did
not have a waiver of rights form available when he questioned Fernandez, and
that he gave Fernandez his Miranda rights, from memory, in Spanish. Flowe
also said that Fernandez claimed to understand his rights and said that he
wished to speak with Flowe without an attorney present. The district court
found that Flowe properly advised Fernandez of his rights and that Fernandez
understood his rights, which he voluntarily waived.
On appeal, Fernandez argues that the totality of the circumstances reveals that
his confession was involuntary and should have been suppressed. We note
initially that "the district court's findings of fact on the circumstances
surrounding the confession are to be accepted unless clearly erroneous." United
States v. Pelton, 835 F.2d 1067, 1072 (4th Cir.1987), cert. denied, 486 U.S.
1010 (1988). The district court's finding that Flowe gave Fernandez his
Miranda rights as Flowe said he did was not clearly erroneous. Having
established that the rights were given to Fernandez, the question becomes
whether the finding that he waived his rights was clearly erroneous. United
States v. Gordon, 895 F.2d 932, 938 (4th Cir.), cert. denied, 59 U.S.L.W. 3247
(U.S.1990). This, of course, is the finding that Fernandez challenges on appeal.
We find unpersuasive the points raised in support of his position that he did not
waive his rights. His limited knowledge of the English language might be
relevant had he been given his rights in English. However, Flowe advised
Fernandez of his rights in Spanish. "[W]hen a defendant is advised of his rights
in his native tongue and claims to understand such rights, a valid waiver may be
effectuated." United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir.1990),
cert. denied, 59 U.S.L.W. 3599 (U.S.1991).
Fernandez argues that because he requested counsel at a second interview,
more than 24 hours after the first, the district court's finding that he made no
such request at the first interview was erroneous. This is not a compelling
argument. It could be that after he had time to reflect on his earlier statement,
Fernandez changed his mind about the wisdom of speaking to a police officer
without having an attorney present.
7
Finally, the absence of a waiver of rights form is immaterial, as oral warnings
were given. Having such a form is preferable; however, the absence of such a
form does not mean that a valid waiver did not occur. See United States v.
Hawkins, 823 F.2d 1020, 1022 (7th Cir.1987); United States v. Ervin, 778 F.2d
722, 728 (11th Cir.1985); North Carolina v. Butler, 441 U.S. 369, 375-76
(1979).1
The district court concluded that a valid waiver had taken place. Based on
Flowe's testimony and the absence of any compelling evidence to the contrary,
we find that this conclusion was not clearly erroneous.
Fernandez virtually concedes that if we find that the confession was voluntary
and properly admitted, his claim of insufficient evidence fails. We find that
there was sufficient evidence to convict Fernandez, based on his statement to
Flowe, the presence of crack in the trunk of the car in which Fernandez was
riding when stopped, and his having close to $1000 on his person when
arrested.
10
As our review of the record and other materials before us reveals that it would
not significantly aid the decisional process, we dispense with oral argument.
11
AFFIRMED.
Fernandez also argues that his inaccessibility to the hidden compartment and
his explanation for having almost $1000 on his person at the time of arrest are
evidence that his confession was involuntary. We do not see the relevance of
these factors to the voluntariness issue. Rather, these matters go to sufficiency
of the evidence and witness credibility
