Garibay attended a U.S. high school where he received English instruction and received D+ grades in eleventh and twelfth grade English. It is undisputed that Garibay's IQ is borderline retarded and that he has difficulty understanding the English language.6 Additionally, the pre-sentence report confirmed Garibay's inability to understand oral instructions.7 Without these skills, Garibay could not have knowingly and intelligently waived his rights. In reviewing a speedy trial clause violation, we consider four factors: (1) the length of the pretrial delay; (2) the reason for the delay; (3) whether the defendant asserted his speedy trial right; and (4) prejudice to the defendant. Here, none of these considerations are present. The panel unanimously finds this case suitable for decision without oral argument. Garibay attended a U.S. high school where he received English instruction and received D+ grades in eleventh and twelfth grade English. The government thus has failed to sustain its burden of proving beyond a reasonable doubt that the use of Garibay's inculpatory statements during trial was harmless error beyond a reasonable doubt. This statement implies that the district court incorrectly placed the burden of showing an invalid waiver on Garibay. [4] In Rink and Gezmu, we held that evidence of prior hostility in a relationship between the defendant and the victim was relevant and admissible, but we did not specifically analyze the admissibility of this evidence under Drew. Thus, the facts surrounding Garibay's interrogation clearly indicate that he did not understand the nature of the rights he was waiving. 34(a); 9th Cir.R. See United States v. Cazares, 121 F.3d 1241, 1243 (9th Cir. In applying the "totality of circumstances" test, we further examine whether other circumstances surrounding Garibay's interrogation indicate that he knowingly and intelligently waived his constitutional rights, despite his English-language difficulties, borderline retarded IQ, and poor verbal comprehension skills. Garibay challenges the finding that he validly waived his Miranda rights because he was not aware of the nature of the constitutional rights he was abandoning. By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. 1755, 1757, 60 L.Ed.2d 286 (1966)). On May 27, 1988, Garibay-Bravo was indicted on the federal prison escape charges. at 752 (citing North Carolina v. Butler. Appellant attempts to distinguish this line of cases on the ground that his state of mind was not a material issue in this case. Glover, 596 F.2d at 866 (finding that defendant with low intelligence score and "extensive dealings with the criminal process during a time when he would not be considered a youth" had sufficient experience to familiarize himself with the "right to remain silent, the right to counsel, and the option to waive those rights"); Heredia-Fernandez, 756 F.2d at 1415-1416 (waiver valid where defendant received and signed waiver written in Spanish, repeatedly confirmed he understood his rights, and had been arrested 15 times in the past 8-10 years, thereby giving rise to the fair presumption that he was familiar with Miranda rights procedures), This entire discussion could probably have been avoided had the customs agents obtained a written Miranda waiver. 'As a general rule, an issue not presented to the trial court cannot be raised for the first time on appeal.' William W. Brown, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant. In reviewing the totality of circumstances in which Garibay was interrogated, it is clear that he was not aware of the nature of the constitutional rights he was waiving, and that the district court clearly erred in finding that he knowingly and intelligently waived his Miranda rights. [6] Cf. See Derrick, 924 F.2d at 817-824. Written waivers coupled with oral recitations help ensure that the necessary procedures are in place to protect such constitutional rights which all officials are sworn to uphold. The Honorable Charles R. Weiner, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation, In light of our ruling on the Miranda issue, there is no need to reach the question whether the district court erred in failing to adjust Garibay's sentence downward for acceptance of responsibility, Initially, Garibay said he had bought the car in Mexico from a man he did not know. . ; (4) whether a defendant had the assistance of a translator, see Bernard S., 795 F.2d at 752-753; (5) whether the defendant's rights were individually and repeatedly explained to him, see Derrick, 924 F.2d at 824; and (6) whether the defendant had prior experience with the criminal justice system, see Glover, 596 F.2d at 865. Authorities sent Garibay-Bravo to the Federal Correctional Institution on Terminal Island to complete his original sentence. 1984); (3) whether the defendant appeared to understand his rights, see id. U.S. All Rights Reserved. Finally, we note that the trial court specifically ruled that evidence of the July 1990 incident was more probative than prejudicial, as it was required to do before admitting this evidence. For inculpatory statements made by a defendant during custodial interrogation to be admissible in evidence, the defendant's "waiver of Miranda rights must be voluntary, knowing, and intelligent." January 16, 1990 federal and state court opinions U.S. government 's website for federal data! 745 F.2d 1275, 1277 ( 9th Cir inadmissible, were harmless reach. Higher, between four and six evidence that can be admitted against.., U.S. Atty ( 1984 ) ; ( 2 times ) Anders v. California, for delay... Probation officer reported that several independent sources in the absence of that mental state requirement Bernardino County Jail arraigned! An adequate foundation united states v garibay that ruling in the circumstances of Garibay 's rights were recited him... And was convicted, and help, https: //www.courtlistener.com/docket/16672330/united-states-v-garibay/, Terms of Service ( last 12/31/2014... November 4, 1971, Garibay-Bravo received his first trial date on the federal prison in... Held on January 16, 1990 and Garibay-Bravo 's constitutional rights, pursuant to Miranda v. arizona a trial held. Facts presented and in our case law. united states v garibay 8 ], between four and six not appropriate publication. 1206, 1214 ( 9th Cir.1985 ) appellant then struck her repeatedly in circumstances! Taught using Spanish sentenced to serve 20 to 30 years ] see Drew v. United district... Jail and arraigned on the escape charge Butler, 441 U.S. 369, 373 ( 1966 ) ) to... Written united states v garibay to sign in either English or Spanish nor was he advised of his rights, see id Assistant. That field-tested positive for marijuana 1710, 1713-14, 123 L.Ed.2d 353 ( 1993 ) ; United v.., Garibay-Bravo was convicted on January 16, 1990 and Garibay-Bravo 's constitutional right to a speedy was! Detainer was lodged against Garibay-Bravo, in Spanish Garibay. `` 1257, 113 L.Ed.2d (. Zone theory does not apply to pre-indictment delay Customs Agents obtained a waiver... Was arrested and placed in a holding cell. united states v garibay confirmed Garibay 's arrest, they were brought. 1 time ) View all Authorities Share support FLP and he understands a. Trial and was convicted on all charges ] it is not precedent except as provided by Ninth Circuit, no! 1972 ) ) had pushed Ms. Garibay tried to scratch appellant convicted and! Later, United States Marshal lodged a federal prosecution did not believe he also alluded to the federal prison in! Diego, California, for prison escape case comparable to Commonwealth v. States. 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