United States v. Beatriz Ramirez-Carrillo

FILED NOT FOR PUBLICATION JAN 08 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-50424 Plaintiff-Appellee, D.C. No. 3:17-cr-00208-H-1 v. MEMORANDUM* BEATRIZ MARVIN RAMIREZ- CARRILLO, AKA Ramirez-Carrillo, AKA Marvin Beatriz Ramirez-Carrillo, Defendant-Appellant. UNITED STATES OF AMERICA, No. 17-50426 Plaintiff-Appellee, D.C. No. 3:15-cr-01464-H-1 v. BEATRIZ MARVIN RAMIREZ- CARRILLO, AKA Ramirez-Carrillo, AKA Marvin Beatriz Ramirez-Carrillo, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Marilyn L. Huff, District Judge, Presiding Argued and Submitted December 7, 2018 Pasadena, California Before: RAWLINSON and BEA, Circuit Judges, and SETTLE,** District Judge. After arresting Appellant Beatriz Ramirez-Carrillo (“Ramirez”), border patrol agents first told her that she was facing proceedings for her removal to her native Mexico, and that she was entitled to the services of an attorney, but at no cost to the Government. Then, her situation changed. The border patrol agents told her that she was to be charged with the crime of transporting an illegal alien into this country, and read her the Miranda rights, including that she could avail herself of the services of an attorney, at Government expense. The issue before us: in view of what the agents first told Ramirez with respect to her rights in removal proceedings, did the agents’ Miranda warnings sufficiently explain the effect the change of her situation had as to who would pay for the attorney’s services? 1. Whether a Miranda warning was adequate is a legal question we review de novo. United States v. Connell, 869 F.2d 1349, 1351 (9th Cir. 1989). Relevant here, Miranda v. Arizona requires law enforcement officers to inform a person in ** The Honorable Benjamin H. Settle, United States District Judge for the Western District of Washington, sitting by designation. 2 custody that she has “the right to the presence of an attorney, and that if [she] cannot afford an attorney one will be appointed for [her] prior to any questioning if [she] so desires.” 384 U.S. 436, 479 (1966). This warning “must be clear and not susceptible to equivocation.” United States v. San Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002). When conflicting sets of rights are given, it does not matter that the Miranda warnings were correct if the agents did not clarify to the suspect which set of warnings applied. United States v. Botello-Rosales, 728 F.3d 865, 867 (9th Cir. 2013) (citing San Juan-Cruz, 314 F.3d at 388-89). “The Government should not presume after having read two sets of contradictory warnings to an individual that he or she possesses sufficient legal or constitutional expertise to understand what are his or her rights under the Constitution.” San Juan-Cruz, 314 F.3d at 389. Indeed, “[w]hen a warning, not consistent with Miranda, is given prior to, after, or simultaneously with a Miranda warning, the risk of confusion is substantial, such ...

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