FILED

United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

August 13, 2014

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
SIGIFREDO MOLINA VARELA, a/k/a
Sigi Molina, a/k/a Sigi Varela,

No. 13-8067
(D. Wyoming)
(D.C. No. 2:13-CR-00004-ABJ-2)

Defendant - Appellant.
ORDER AND JUDGMENT *

Before MATHESON, EBEL and McHUGH, Circuit Judges.

Defendant Sigifredo Molina-Varela appeals his conviction of conspiracy to

possess methamphetamine with intent to distribute and distribution of methamphetamine,
and possession of a firearm in furtherance of a drug felony. He challenges the district
courts order denying his motion to suppress his post-arrest statements, claiming they
were not knowing or voluntary. Exercising jurisdiction under 28 U.S.C. 1291, we
affirm.
*

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 32.1.

I.

BACKGROUND
A. Factual History

After a two-year investigation into a conspiracy to distribute methamphetamine in

the Cheyenne area, the Wyoming Division of Criminal Investigation obtained a warrant
to search the apartment occupied by Mr. Molina-Varela and his family. The execution of
the search warrant revealed evidence consistent with Mr. Molina-Varelas participation in
the conspiracy, including small amounts of methamphetamine, drug ledgers, and
paraphernalia. The officers executing the warrant also discovered multiple firearms.
Based on this evidence, the officers arrested Mr. Molina-Varela and transported him to
the Campbell County Sheriffs Office.
Later that same day, Special Agents Trevor Budd and Chris McDonald questioned
Mr. Molina-Varela about his involvement in the conspiracy. Mr. Molina-Varela claims
the district court should have suppressed the inculpatory statements he made during this
interview because they were obtained in violation of his constitutional rights. The
resolution of this issue requires us to examine the totality of the circumstances
surrounding the interview, and therefore we discuss those facts in some detail.1
Agents Budd and McDonald questioned Mr. Molina-Varela in a small interview
room at the Sheriffs Office, which contained a table and enough chairs for Mr. MolinaVarela and each of the agents to sit. A single door provided access to the room, which
1

We base our recitation of the facts on the district courts findings and on our
review of the video of the recorded interview. See Supplemental Record on Appeal.
2

had no windows. During the interview, Mr. Molina-Varela was dressed in a prison-issued
jumpsuit, but was not wearing handcuffs or otherwise restrained. The agents wore plain
clothes. Neither agent raised his voice or threatened Mr. Molina-Varela during the
interview. Mr. Molina-Varela was 43 years old at the time of the interview, and was
fluent in English. In total, the interview lasted approximately two hours and twenty-two
minutes.
Agent Budd began the interview by asking Mr. Molina-Varela for routine
information including his date of birth and social security number. Mr. Molina-Varela
provided this information, with little hesitation, from memory. During this initial phase of
the interview, Agent Budd volunteered that Mr. Molina-Varelas dog had been placed in
protective custody with animal control. Mr. Molina-Varela then inquired about his
children, who had been at school when the officers executed the warrant and arrested
both Mr. Molina-Varela and the childrens mother. This inquiry prompted a conversation
regarding the children, during which the agents agreed to attempt to have them placed
with Mr. Molina-Varelas stepson.
Agent McDonald then informed Mr. Molina-Varela that law enforcement had
been investigating the conspiracy for two years and that they knew a lot but didnt
know everything. Agent McDonald asked Mr. Molina-Varela for his address and
telephone number, as well as telephone numbers for other individuals suspected to be
involved in the conspiracy. Agent McDonald also inquired about Mr. Molina-Varelas
3

immigration status, the number of years he had been in the United States, and how long
he had lived at his current address. Again, Mr. Molina-Varela provided the information
requested without difficulty.
At this point, Agent McDonald indicated that he and Agent Budd wanted to
interview Mr. Molina-Varela to learn more, but that he needed to inform Mr. MolinaVarela of his rights before proceeding. Consequently, approximately twelve minutes into
the interview, Agent McDonald read aloud from a preprinted waiver of rights form (the
waiver form) to advise Mr. Molina-Varela of his Miranda2 rights:
You have the right to remain silent. Anything you say can and
will be used against you in a court of law. You have the right to talk
to a lawyer and have him present while you are being questioned. If
you cannot afford to hire a lawyer, one will be appointed to represent
you at no cost before any questioning if you wish one. You can
decide at any time to exercise these rights and not answer any
questions or make any statements. Do you understand each of these
rights?
Although the waiver form next reads, Having these rights in mind, do you waive
these rights and desire to make a statement at this time?, R. Vol. 3 at 562, Agent
McDonald deviated from the written text and instead asked, Having those in mind,
would you still mind talking to me?
After Agent McDonald read these warnings, Mr. Molina-Varela asked, so you
will not help me on any [unintelligible] this? to which Agent McDonald responded,
2

Miranda v. Arizona, 384 U.S. 436 (1966) (holding that criminal suspects subject
to custodial interrogation must be advised of certain constitutional rights and the
consequences of waiving those rights).
4

well, thats, thatsno I think we can, we can do something. Im just saying I cant
sayI cant take those charges away [pause] right now. When Mr. Molina-Varela did
not respond immediately, Agent McDonald asked if Mr. Molina-Varela would be
willing to answer a few questions or talk for a little while longer. Mr. Molina-Varela
nodded.
Agent McDonald then asked Mr. Molina-Varela if he could read English. When
Mr. Molina-Varela answered affirmatively, Agent McDonald handed Mr. Molina-Varela
the waiver form, which he signed in the presence of both agents. The interview continued
for approximately two more hours, during which Mr. Molina-Varela made inculpatory
statements detailing his role in the conspiracy.
B. Procedural History
Prior to trial, Mr. Molina-Varela filed a motion in limine to suppress his interview
statements on the ground that the waiver of his Miranda rights and subsequent statements
were uninformed and involuntary. Specifically, Mr. Molina-Varela claimed Agent
McDonald coerced him into waiving his rights by using an impermissible promise of
leniency, and that he was so impaired by methamphetamine at the time of the interview
that it rendered his actions involuntary. After reviewing the video recording of the
interview and hearing testimony from Agent McDonald and Mr. Molina-Varela, the
district court denied the motion. It concluded there was nothing in Mr. Molina-Varelas
behavior to indicate he was unable to make a voluntary confession due to the influence of
5

methamphetamine and that the statements Mr. Molina-Varela claimed were

impermissible promises of leniency were largely cherry-picked from the interview.
Considering Agent McDonalds statements in context, the district court held they did not
render Mr. Molina-Varelas waiver or his subsequent statements involuntary.
At trial, Agent McDonald testified about the interview and described Mr. MolinaVarelas inculpatory statements. The jury convicted Mr. Molina-Varela on all charges
and he filed a timely notice of appeal.
II.

DISCUSSION

Mr. Molina-Varela argues the district court should have suppressed his statements
to Agents Budd and McDonald because the agents obtained the statements in violation of
his constitutional rights. The admissibility of a defendants inculpatory statements to law
enforcement officers implicates two constitutional protections: the Fifth Amendment
right against self-incrimination3 and the Fourteenth Amendments requirement that a
defendant be afforded appropriate due process. United States v. Cash, 733 F.3d 1264,
1280 & n. 12 (10th Cir. 2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1569 (2014); see
Dickerson v. United States, 530 U.S. 438, 433 (2000). To be admissible under the Fifth
Amendment, law enforcement officers must inform the defendant of his Miranda rights
and the defendant must knowingly, intentionally, and voluntarily waive those rights
3

The Fifth Amendment is incorporated and made applicable to the State of

Wyoming by the Fourteenth Amendment. See Withrow v. Williams, 507 U.S. 680, 689
(1993).
6

before making the incriminating statements. See Missouri v. Seibert, 542 U.S. 600, 607
(2004). Where law enforcement officers have properly advised a defendant of his
Miranda rights and obtained a valid waiver of those rights, the Due Process Clause may
nevertheless prohibit the admission of the defendants inculpatory statements if they were
not made voluntarily. See Cash, 733 F.3d at 1280 n.12.
It is unclear whether Mr. Molina-Varela contends his interview statements should
be suppressed because the Miranda warnings were insufficient, because his waiver was
not voluntary, or because the statements themselves were involuntary, and therefore,
violate due process. For practical purposes, this uncertainty does not much alter our
analysis because we consider the totality of the circumstances to determine the
voluntariness of both Mr. Molina-Varelas waiver of his Miranda rights and the
voluntariness of his subsequent statements. See Colorado v. Connelly, 479 U.S. 157,
16970 (1986) (There is obviously no reason to require more in the way of a
voluntariness inquiry in the Miranda waiver context than in the Fourteenth Amendment
confession context.); Cash, 733 F.3d at 1280 n. 12 ([R]egardless of whether we
evaluate the voluntariness of a statement through the lens of Miranda waiver, the
privilege against self-incrimination, or the Due Process Clause, our inquiry is the same
we consider the totality of the circumstances.).
Accordingly, we first consider the sufficiency of the warnings. We then proceed to
the issue of whether Mr. Molina-Varelas waiver and subsequent statements were
7

voluntary under the totality of the circumstances. With respect to this second issue, we
consider Mr. Molina-Varelas specific claims that the agents engaged in coercive tactics,
including trickery, false promises of leniency and misleading statements, and
subterfuge to induce his waiver. Aplt. Reply Br. 11. Finally, we address Mr. MolinaVarelas contention that he was so impaired by methamphetamine at the time of the
interview that his actions were involuntary.
A. Standard of Review
When reviewing the district courts denial of a motion to suppress, we review
legal conclusions de novo and findings of fact for clear error. United States v. Smith, 606
F.3d 1270, 1275 (10th Cir. 2010) [hereinafter Smith]. We accept the district courts
factual findings unless clearly erroneous and consider the evidence in the light most
favorable to the district courts determination. United States v. Lopez, 437 F.3d 1059,
1062 (10th Cir. 2006). It is the governments burden to show a confession is admissible
by a preponderance of the evidence. Id. at 1063 (citing Seibert, 542 U.S. at 608 n.1).
B. The Sufficiency of the Miranda Warning
Prior to conducting a custodial interrogation, law enforcement officers must advise
the suspect of four specific rights:
[A suspect] must be warned prior to any questioning [1] that he has
the right to remain silent, [2] that anything he says can be used against him
in a court of law, [3] that he has the right to the presence of an attorney, and
[4] that if he cannot afford an attorney one will be appointed for him prior
to any questioning if he so desires.
8

Florida v. Powell, 559 U.S. 50, 5960 (2010) (brackets in original). Mr. Molina-Varela
concedes each of these required elements of a Miranda warning are contained in the
written waiver form that Agent McDonald read and Mr. Molina-Varela signed.
Notwithstanding that concession, he claims the Miranda warnings were rendered
inadequate and misleading when Agent McDonald deviated from the language of the
written waiver form and asked, having those [rights] in mind, would you still mind
talking with me? 4 We disagree.
Nothing in Miranda requires an officer to ask specifically if the suspect waives his
rights. See Berghuis v. Thompkins, 560 U.S. 370, 38487 (2010) (holding that police are
not required to obtain an express waiver of a defendants right to remain silent under
Miranda before commencing interrogation and [W]here the prosecution shows that a
Miranda warning was given and that it was understood by the accused, an accuseds
uncoerced statement establishes an implied waiver of the right to remain silent.). And
the question, [h]aving those [rights] in mind, would you still mind talking to me?, did
not render the warnings misleading. It simply asked whether, despite the just-explained
right not to speak, Mr. Molina-Varela would mind talking with the agents anyway. See
4

Mr. Molina-Varela also claims that his statements should be excluded because
Agent McDonalds failure to advise him of his rights at the outset of the interrogation
constitutes a direct violation of Miranda. We do not address this argument because it was
not raised before the district court or argued in Mr. Molina-Varelas opening brief. See
United States v. Holmes, 727 F.3d 1230, 1237 (10th Cir. 2013) ([W]e do not permit new
arguments on appeal when those arguments are directed to reversing the district court.);
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (Arguments
inadequately briefed in the opening brief are waived.).
9

Powell, 559 U.S. at 60, 6264 (holding that warnings need only reasonably convey to a
suspect his Miranda rights).
The fact that Agent McDonald handed Mr. Molina-Varela the waiver form after
reading it out loud supports our conclusion. The waiver form includes the language Mr.
Molina-Varela now complains Agent McDonald omitted from the verbal recitation of
rights: an express inquiry as to whether Mr. Molina-Varela agreed to waive his Miranda
rights. Mr. Molina-Varela executed the written form, thereby indicating his intent to
waive the rights described in it and explained by Agent McDonald. Therefore, we
conclude that Agent McDonald informed Mr. Molina-Varela of his rights as required by
Miranda.
C. Voluntariness of the Waiver and Inculpatory Statements
Mr. Molina-Varela also argues that his Miranda waiver and subsequent statements
were involuntary because Agents Budd and McDonald engaged in over twelve minutes of
trickery, subterfuge, and false and misleading statements, which amounted to
psychological conditioning ploys used to coerce him into waiving his rights. Specifically,
he claims the agents misrepresented the strength of the evidence and feigned friendship
and kindness by discussing his children and his dog. In addition, Mr. Molina-Varela
contends Agent McDonald made an impermissible and misleading promise of leniency.
We are not persuaded that any of the aspects of the interrogation identified by Mr.
Molina-Varela rendered his waiver or his subsequent statements involuntary.
10

A Miranda waiver must be voluntary in the sense that it was the product of a
free and deliberate choice rather than intimidation, coercion, or deception. Smith v.
Mullin, 379 F.3d 919, 932 (10th Cir. 2004) (quoting Moran v. Burbine, 475 U.S. 412, 421
(1986)). In determining whether Mr. Molina-Varelas Miranda waiver and subsequent
statements were voluntary, we examine whether his will was overborne by the
circumstances surrounding the giving of a confession. Id. at 934. This requires us to
assess the totality of the circumstances. Id. Factors relevant to this assessment include the
personal characteristics of the accused and the details of the interrogation, including: the
suspects age, intelligence, and education; whether the suspect was informed of his or her
rights; the length and nature of the suspects detention and interrogation; and the use or
threat of physical force against the suspect. Id.
1. Exaggeration of the Evidence and Feigned Friendliness
Under this standard, we can easily dispose of Mr. Molina-Varelas first two
allegations of coercive conduct. Agents Budd and McDonald did not misrepresent or
exaggerate the evidence that implicated Mr. Molina-Varela in a conspiracy to distribute
methamphetamine. Cf. Lopez, 437 F.3d at 1065 (concluding that a confession was
involuntary where, in addition to promising leniency, agents misrepresented the strength
of the evidence); Clanton v. Cooper, 129 F.3d 1147, 115859 (10th Cir. 1997)
(recognizing that a reasonable officer should have known that misrepresentations,
combined with promises of leniency, were more likely to render a confession
11

involuntary). To the contrary, Agent Budds and Agent McDonalds representations to

Mr. Molina-Varela were true; they had been working the case for over two years and
knew enough about Mr. Molina-Varelas involvement in the conspiracy to obtain a
search warrant for his apartment, which when executed yielded methamphetamine, a
drug ledger, and other paraphernalia.
Agents Budd and McDonald also acted permissibly in discussing the placement of
Mr. Molina-Varelas children and the location of his dog. Mr. Molina-Varela initiated the
conversation about his children and Agents Budd and McDonald merely agreed to
facilitate their placement with a family member. Nothing about Agent Budds and Agent
McDonalds general politeness, friendliness, or helpfulness during the interview was
coercive. Compare Spano v. New York, 360 U.S. 315, 323 (1959) (holding that using a
patrolman who was the suspects childhood friend to convince the suspect to confess so
that the patrolman would not be in trouble from his superiors was coercive), with United
States v. Posada-Rios, 158 F.3d 832, 866 (5th Cir. 1998) (exhibiting sympathy to create
an atmosphere of trust does not demonstrate prohibited police overreaching). Thus, we
are not persuaded by Mr. Molina-Varelas claims that Agents Budd and McDonald
impermissibly exaggerated the evidence or feigned friendship.
2. Promise of Leniency and Misleading Statements
Mr. Molina-Varela next contends that he was coerced into waiving his Miranda
rights and incriminating himself during the interview by Agent McDonalds statement I
12

think we can, we can do something. Im just saying I cant sayI cant take those
charges away [pause] right now. According to Mr. Molina-Varela, this statement is an
impermissible and misleading promise of leniency that rendered his waiver and
subsequent inculpatory statements involuntary. In rejecting this argument, we first
determine that Agent McDonald did not make an impermissible promise of leniency, but
that the statement was somewhat misleading. But we conclude that even treating Agent
McDonalds statement as a promise of leniency, and weighing the misleading nature of
the statement, it did not overcome Mr. Molina-Varelas will and render his waiver and
confession involuntary.
Under Supreme Court and Tenth Circuit precedent, a promise of leniency is
relevant to determining whether a confession was involuntary and, depending on the
totality of the circumstances, may render a [waiver or] confession coerced. Lopez, 437
F.3d at 1064 (quoting Clanton, 129 F.3d at 1159); accord Clanton, 129 F.3d at 1159
(discussing the effect of an alleged promise of leniency on the voluntariness of the
defendants confession in the context of a 42 U.S.C. 1983 claim); United States v.
Roman-Zarate, 115 F.3d 778, 780, 78284 (10th Cir. 1997) (examining whether a
promise of leniency rendered a confession involuntary). For example, in Lopez, we
determined that law enforcement officers had made an impermissible promise of leniency
where the agent set out four pieces of paper marked with the terms murder, mistake,
60, and 6, and then told the defendant if you cooperate, you know, . . . you could
13

be looking at six years. And if you dont cooperate and give us answers, you could be
looking at 60 years. 437 F.3d at 1061, 1065. We explained that the agent had used the
papers to make a specific and compelling promise that the defendant would spend 54
fewer years in prison if he confessed to killing the victim by mistake, and then reinforced
the promise by relating stories of other suspects who had received lighter sentences after
confessing to killing by mistake. Id. at 1065. The promise was not a limited assurance
that is permissible as an interrogation tactic; it was of the sort that may indeed critically
impair a defendants capacity for self-determination. Id. Upon concluding that the agent
had made an impermissible promise of leniency, we next considered whether under the
totality of the circumstances, the defendants statements were coerced and therefore
involuntary. Noting that the agent had also misrepresented the strength of evidence
against the defendant and threatened to prosecute the defendants mother for perjury if
she provided alibi testimony, we held that the defendants inculpatory statements were
involuntary, and therefore, inadmissible, even though the agent had informed the
defendant of his Miranda rights. Id. at 1061, 1065.
Turning to the facts of this case, unlike the specific promise of a 54-year reduction
of sentence we found to be compelling in Lopez, Agent McDonalds statement was vague
and noncommittal. He did not describe any specific benefit Mr. Molina-Varela would
enjoy if he cooperated or any particular penalty he would face if he did not. Therefore,
Agent McDonalds statement did not constitute a promise of leniency.
14

However, even if the statement could be construed as a promise of leniency, we

have no trouble concluding that, under the totality of the circumstances, it was not so
compelling as to overcome Mr. Molina-Varelas will. Unlike the statement in Lopez,
Agent McDonalds statement was too vague and generic to have critically impaired Mr.
Molina-Varelas ability to evaluate whether or not to waive his Miranda rights. It simply
reinforced the obvious fact of which Mr. Molina-Varela was clearly awarethat
cooperation with law enforcement officers could be beneficial. In fact, Agent McDonald
made the statement in response to Mr. Molina-Varelas own attempt to negotiate a more
favorable outcome in exchange for his cooperation. See, e.g., United States v. Toles, 297
F.3d 959, 967 (10th Cir. 2002) (holding a confession was voluntary and noting that it was
the defendant who raised the possibility of a benefit); see generally Wayne R. LaFave et
al., 2 Crim. Proc. 6.2(c) (3d ed.) (collecting cases and concluding that some courts have
held that promises of leniency are less coercive where they are made in response to a
solicitation from the accused).
As for Mr. Molina-Varelas argument that Agent McDonalds statement was
misleading, we agree that it may have implied inaccurately that Agent McDonald had the
power to take Mr. Molina-Varelas charges away. Cf. United States v. Lewis, 24 F.3d 79,
82 (10th Cir. 1994) (a statement was voluntary where the law enforcement officer
promised to make the defendants cooperation known to the United States Attorneys
Office but told the defendant that he himself could make no deals); United States v. Lux,
15

905 F.2d 1379, 1382 (10th Cir. 1990) (finding that a confession was voluntary where the
law enforcement officer allegedly told the appellant she could either testify or be a
codefendant, but that only the United States Attorney could help her). But we cannot
agree that the statement was sufficiently misleading to overcome Mr. Molina-Varelas
will. Balancing the effect of the misleading inference against the totality of the
circumstances, including other details of the interview and Mr. Molina-Varelas personal
characteristics, we conclude that his waiver and subsequent inculpatory statements were
voluntary.
The fact that Agent McDonald properly advised Mr. Molina-Varela of his
Miranda rights and Mr. Molina-Varela expressly waived those rights by executing the
written waiver form is strong proof that Mr. Molina-Varelas waiver and confession
were voluntary. United States v. Amos, 984 F.2d 1067, 1074 (10th Cir. 1993); see Seibert,
542 U.S. at 609 (maintaining that a statement is involuntary even though given after
warnings and voluntary waiver of rights requires unusual stamina, and litigation over
voluntariness tends to end with the finding of a valid waiver); Berkemer v. McCarty, 468
U.S. 420, 433 n.20 (1984) ([C]ases in which a defendant can make a colorable argument
that a self-incriminating statement was compelled despite the fact that the law
enforcement authorities adhered to the dictates of Miranda are rare.).
Moreover, Mr. Molina-Varela was not subject to physical punishment or the use or
threat of force. Agents Budd and McDonald did not raise their voices, make any threats,
16

or act in any way that was intimidating. As discussed, Agents Budd and McDonald at all
times during the interview were polite and friendly. Both agents were dressed in plain
clothes and sat throughout the majority of the interview. The interview room, although
small, was large enough for everyone to sit comfortably. In fact, Mr. Molina-Varela
appeared to be relatively relaxed and comfortable throughout the interview. He wore a
jumpsuit but was not handcuffed or otherwise restrained. See Smith, 606 F.3d at 1277
(holding that a waiver was voluntary where the interview took place in a room large
enough to accommodate adequately the interviewers, the suspect was not handcuffed
during the interview, and there was no indication that he was treated impolitely or
touched forcefully while being interviewed).
There is also nothing about the duration of the detention and interview that
suggests coercion. The interview occurred on the same day as Mr. Molina-Varelas arrest
and lasted less than two and a half hours. See Berghuis, 560 U.S. at 387 (holding that an
interrogation that lasted three hours was not coercive); Smith, 606 F.3d at 1277 (holding
that a waiver was voluntary where the suspect had been under arrest for approximately
three hours prior to questioning). Furthermore, at the time of the interview, Mr. MolinaVarela was a 43-year-old adult, who spoke and understood English well. He appeared
intelligent, and nothing in the record suggests otherwise. And Mr. Molina-Varela is no

17

stranger to the criminal justice system; therefore [t]he concepts encompassed by

Miranda were not foreign to him. Mullin, 379 F.3d at 934.5
The totality of the circumstances do not indicate that Mr. Molina-Varelas waiver
and subsequent confession were anything but the product of an informed and voluntary
choice. Agents Budd and McDonald did not impermissibly exaggerate the evidence or
feign friendship. Nor was Agent McDonalds statement an impermissible promise of
leniency. But even if we were to treat it as such, and also consider the misleading nature
of the statement, it was not so compelling or misleading that it overcame Mr. MolinaVarelas will under the totality of the circumstances. For these reasons, we conclude that
Mr. Molina-Varelas waiver and subsequent statements were voluntary.
3. Mr. Molina-Varelas methamphetamine use did not render his Miranda
waiver invalid.
Finally, Mr. Molina-Varela claims that his waiver was invalid because he was high
on methamphetamine at the time of the interview. A state of intoxication does not
automatically render a waiver invalid. Smith, 606 F.3d at 1276; United States v.
Augustine, 742 F.3d 1258, 1265 (10th Cir.), cert. denied, 134 S. Ct. 2155 (2014) (The
mere fact of drug or alcohol use will not suffice to overcome evidence showing that the
defendant was sufficiently in touch with reality so that he knew his rights and the
consequences of abandoning them. (internal quotation marks omitted)). Instead, the
5

The record reveals that Mr. Molina-Varela had been previously arrested on
charges of DUI; aggravated assault and use of a firearm; theft of service and theft by
unlawful taking; and for failure to appear.
18

question remains whether a [suspects] will was overborne by the circumstances

surrounding the giving of a confession. Smith, 606 F.3d at 127677; United States v.
Curtis, 344 F.3d 1057, 1066 (10th Cir. 2003) (examining whether the impairment was
such that the confession was not voluntary and that Defendant was not operating under
his own free will. (brackets omitted)). Here, that question is easily answered in the
negative.
The district court made factual findings that Mr. Molina-Varela was not so
impaired by methamphetamine use that he could not make a voluntary confession.
Indeed, the court found there were no obvious signs that Mr. Molina-Varela was under
the influence of methamphetamine at all. Instead, the court observed that he appeared at
all times during the interview to be lucid, and was alert yet relaxed. He spoke clearly
and responded to Agent Budds and Agent McDonalds questions appropriately and at
times asked them clarifying questions. He also exhibited concern for the situation and for
his children. Our review of the video recording of the interview establishes that these
findings are not clearly erroneous. Thus, we conclude that Mr. Molina-Varela was not so
impaired by his methamphetamine use that his Miranda waiver was invalid.

19

III.

CONCLUSION

For the foregoing reasons, we AFFIRM the district courts decision to admit Mr.
Molina-Varelas post-arrest statements.
ENTERED FOR THE COURT

Carolyn B. McHugh
Circuit Judge

20