Falsely represented himself to be a U.S. citizen

Federal District Court Opinions

U.S. v. RICHMOND, (N.D.N.Y. 11-15-2006) UNITED STATES OF
AMERICA, v. KEON RICHMOND, Defendant. 1:05-CR-501 (FJS).
United States District Court, N.D. New York. November 15,
2006

EDWARD P. GROGAN, AUSA OFFICE OF THE UNITED STATES
ATTORNEY, James T. Foley, Albany, New York, Attorneys for
the United States.

PAUL J. EVANGELISTA, AFPD, OFFICE OF THE FEDERAL, PUBLIC
DEFENDER, Albany, New York, Attorneys for Defendant

MEMORANDUM-DECISION AND ORDER

FREDERICK SCULLIN JR., Chief Judge

I. INTRODUCTION

Defendant is charged in a two-count Indictment dated
October 7, 2005. Count 1 alleges that “[o]n or about May
27, 2005, in Ulster County, . . . KEON RICHMOND, the
defendant herein and an alien, did knowingly, willfully and
falsely represent himself to be a citizen of the United
States, to a United States Immigration Inspector . . . [i]n
violation of Title 18, United States Code, Section 911.”
See Indictment at Count 1. Count 2 alleges that “[o]n or
about June Page 2 1, 2005, in Ulster County, . . . KEON
RICHMOND, the defendant herein and an alien, did knowingly,
willfully and falsely represent himself to be a citizen of
the United States, to a United States Immigration Inspector
. . . [i]n violation of Title 18, United States Code,
Section 911.” See Indictment at Count 2.

Currently before the Court is Defendant’s motion to
suppress the statements that he made to immigration
officers on May 27, 2005, and June 1, 2005.[fn1] Although
the Government opposed this motion, it consented to a
suppression hearing. See Dkt. No. 12. On March 21, 2006,
the Court held a suppression hearing and reserved decision
at that time. The following constitutes the Court’s written
decision regarding the pending motion.

II. BACKGROUND

At the time that the immigration officers interviewed him
on May 27, 2005, and June 1, 2005, Defendant was
incarcerated in the Ulster County Correctional Facility on
an unrelated state sentence. Department of Homeland
Security Deportation Officer Peter Mortensen interviewed
Defendant on May 27, 2005, at the Ulster County
Correctional Facility; and Immigration and Customs
Enforcement (“ICE”) Senior Special Agent Michael Polouski,
together with Immigration Agent Spiros Karabinas,
interviewed Defendant on June 1, 2005, at the same
facility. Based upon the information that they obtained
during those interviews concerning Defendant’s place of
birth, the Government charged him with false claims of
United States Page 3 citizenship.

Defendant moves to suppress the statements that he gave to
the immigration officers for several reasons. Specifically,
he moves to suppress the May 27, 2005 statements on the
grounds (1) that he was not provided with his Miranda
warnings; (2) that, even if he were given his Miranda
warnings, he did not voluntary waive his Fifth Amendment
rights; and (3) that his statements were not voluntary.

Furthermore, with regard to his June 1, 2005 statements,
Defendant moves for suppression on the grounds (1) that he
was not given proper Miranda warnings, (2) that he never
made a voluntary waiver of his Fifth Amendment rights as
Miranda requires, (3) that he exercised his rights, (4)
that his statements were not voluntary, and (5) that his
statements were tainted by his unmirandized, coerced May
27, 2005 statements.

In response to Defendant’s motion, the Government asserts
(1) that the Fifth Amendment does not provide an individual
with the right to lie; (2) that, because Defendant’s May
27, 2005 and June 1, 2005 interviews were immigration
interviews, Miranda warnings were not necessary; and (3)
that Defendant’s statements were false. Moreover, the
Government asserts that Defendant was not represented by
counsel during the May 27, 2005 and June 1, 2005 interviews
and the Sixth Amendment does not attach to deportation
hearings that are civil in nature. The Court will review
each of Defendant’s statements in turn.

III. DISCUSSION

The Second Circuit addressed similar issues in United
States v. Rodriguez, 356 F.3d 254 (2d Cir. 2004). In that
case, the defendant was charged with, and later convicted
of, illegal Page 4 reentry after deportation in violation
of 8 U.S.C. § 1326 and of passport and visa fraud in
violation of 18 U.S.C. §§ 1543, 1546,
respectively. He appealed his conviction on the ground that
the district court had erred in permitting an INS Special
Agent to testify about statements that he had made to the
agent four years earlier during an interview that took
place while he was incarcerated at Rikers Island on
unrelated stated charges. The defendant argued that he did
not receive a Miranda warning before giving his statement
to the INS Special Agent. The Second Circuit rejected this
argument and affirmed the defendant’s conviction.

In Rodriguez, an INS Special Agent interviewed the
defendant pursuant to an INS policy of interviewing inmates
whose national origin is listed as unknown or somewhere
other than the United States. The Special Agent testified
that the purpose of his interview with the defendant was to
determine if he were subject to administrative deportation
proceedings. During the interview, the Special Agent asked
the defendant the questions listed on INS Form I-215c,
entitled “Affidavit in an Administrative Proceeding.”[fn2]
Before he asked these questions, however, the Special Agent
recited an introductory portion of the form, which included
the following statements: “You have the right to be
represented by counsel of your choice at no expense to the
Government” and “Any statement you make may be used against
you in a subsequent administrative proceeding.” The
defendant refused to sign the form, but the Special Agent
signed it with a third party acting as a witness. As a
result of this interview, an INS detainer was lodged
against the defendant, indicating that he was subject to
administrative deportation upon completion of his sentence
and, subsequently, he was deported.

Less than one year after he was deported, the defendant
was apprehended at JFK airport Page 5 attempting to
reenter the United States without the Attorney General’s
permission by using a false name, passport and visa. As a
result, he was indicted for passport and visa fraud and
illegal reentry after deportation.

During the course of his trial, the defendant moved to
suppress the Special Agent’s testimony regarding the Rikers
Island interview during which the defendant had stated that
he was a citizen of the Dominican Republic. After a
suppression hearing, the court denied the motion,
concluding that Miranda warnings were not required for an
immigration official’s routine administrative interview to
determine whether an individual in custody is subject to
deportation. On appeal, the defendant argued that the
Special Agent obtained his statements during a custodial
interrogation, that he was therefore entitled to a Miranda
warning, and that, in the absence of such a warning, the
trial court should have suppressed the Special Agent’s
testimony about what the defendant said during the
interview.

The Second Circuit began its analysis by discussing its
definition of “custodial interrogation,” quoting at length
from one of its earlier decisions:

“Custodial interrogation exists when a law enforcement
official questions an individual and that questioning was
(1) conducted in custodial settings that have inherently
coercive pressures that tend to undermine the individual’s
will to resist and to compel him to speak, Miranda, 384
U.S. at 467, 86 S. Ct. 1602 (the in custody requirement)
and (2) when the inquiry is conducted by officers who are
aware of the potentially incriminatory nature of the
disclosures sought (the investigative intent requirement).
Only questioning that reflects a measure of compulsion
above and beyond that inherent in custody itself
constitutes interrogation the fruits of which may be
received in evidence only after Miranda warnings have been
given. The questions asked must have been both likely to
elicit an incriminating response and to produce
psychological pressures that will subject the individual
to the `will’ of his examiner.” Page 6

Rodriguez, 356 F.3d at 258 (quoting United States v.
Morales, 834 F.2d 35, 38 (2d Cir. 1987)).

The court noted that the district court had not analyzed
the “in custody” prong of the custodial interrogation
inquiry because it found that there was no question that
the defendant was being interrogated in custody. However,
the Second Circuit stated that “[t]he `in custody’ inquiry
. . . is not entirely straightforward — that [the
defendant] was incarcerated at the time of the interview
may not be sufficient for a finding of custodial
interrogation.” Id. (citation omitted). The court explained
that “[a]rguably, under Morales, for the `in custody’
requirement to be met in this case, [the Special Agent’s]
questions had to have been likely to produce coercive
`psychological pressures’ subjecting [the defendant] to the
`will’ of his examiner, which they may or may not have
been.” Id. at 259 (citation omitted). Nonetheless, “because
. . . [the Special Agent’s] interview failed the second
part of the Morales test,” id., the court assumed that the
defendant was “in custody” when he was incarcerated.

With respect to the second prong of the inquiry —
whether the officers conducting the inquiry were aware of
the potentially incriminating nature of the disclosures
sought — the court noted that the Special Agent
testified without contradiction that he conducted his
interview of the defendant for the sole purpose of
determining whether the defendant would be subject to
administrative deportation after his release. Moreover, the
Special Agent testified that he was not aware that the
information that he elicited could be the basis for
criminal prosecution.

The court noted that the result of the interview was
consistent with its purpose — the defendant was
deported administratively. Furthermore, the information
disclosed in the interview did not become relevant to a
criminal proceeding against the defendant until three years
later when he tried to reenter the United States without
permission and with a fake passport. The Page 7 court
concluded that there was nothing in the record to indicate
that the Special Agent knew or should have known that
evidence for an eventual prosecution would emerge from his
administrative interview of the defendant. Thus, the court
concluded that “[t]he district court . . . did not err in
finding that [the Special Agent] was unaware of the
potentially incriminatory nature of the disclosures he
sought from [the defendant]. [Thus,] [n]o Miranda warning
was required.” Rodriguez, 356 F.3d at 259 (internal
footnote omitted).[fn3]

The court completed its analysis by rejecting the
defendant’s substantial reliance on Mathis v. United
States, 391 U.S. 1 (1968), upon which Defendant also
relies. In Mathis, the Supreme Court reversed a conviction
for tax fraud because an incriminating statement that an
IRS agent had obtained while defendant was incarcerated in
state prison on other charges had not been preceded by
Miranda warnings. The Second Circuit noted that

the IRS’s investigatory interrogation in Mathis was
dissimilar from the INS’s administrative inquiry here.
There, an IRS investigation (albeit a “routine” one) of
the defendant with respect to specific, questionable tax
returns he had filed with the IRS was underway at the time
of the interview. It is clear from the Court’s recitation
of the facts of the case that the purpose of the
investigation under consideration was, inter alia, to
obtain evidence in connection with a possible subsequent
civil or criminal prosecution, criminal prosecution of
the defendant being a likely outcome. . . . The interview
was thus in marked contrast to the questioning of [the
defendant] by [the Special Agent] in the case before us,
where Page 8 there is no basis in the record to conclude
that [the Special Agent] knew or should have known that
the results of his interview would be used to support
criminal charges resulting from conduct of [the defendant]
— conduct that would not take place until three
years thereafter. Thus, in Mathis, the government was
clearly “aware [at the time of the interrogation] of the
potentially incriminatory nature of the disclosures
sought,” Morales, 834 F.2d at 38; in the case before us,
the government was not. We therefore conclude that Mathis
does not require a reversal here.

Rodriguez, 356 F.3d at 260 (internal citation omitted).

1. Defendant’s May 27, 2005 interview

With regard to the May 27, 2005 interview, there is nothing
in the record to indicate that, at the time of that
interview, Deportation Officer Peter Mortensen knew or
should have known that the results of his interview would
be used to support criminal charges against Defendant. Mr.
Mortensen’s uncontroverted testimony was that he conducted
this interview to determine Defendant’s alienage and
deportability and to find out if the INS needed to charge
Defendant with notice to appear at an immigration
proceeding. See Dkt. No. 18, Transcript of Suppression
Hearing (“Tr.”), at 14-15. Based upon this testimony, the
Court concludes that Mr. Mortensen was not aware — at
the time that he interviewed Defendant — of the
potential incriminating nature of the disclosures that he
sought. Thus, he was not required to provide Defendant with
Miranda warnings prior to his interview. Accordingly, the
Court denies Defendant’s motion to suppress his May 27,
2005 statements.

2. Defendant’s June 1, 2005 interview

Defendant’s June 1, 2005 interview, however, stands on a
different footing. The Page 9 uncontroverted evidence
adduced at the suppression hearing establishes that SA
Polouski received Defendant’s file from Mr. Mortensen
because Mr. Mortensen was suspicious of Defendant’s
statement that he was born in Brooklyn, New York. After
receiving that file, SA Polouski reviewed the file and
further investigated the issue, at which point he
discovered that Defendant had entered the United States as
a B-2 nonimmigrant visitor and was a citizen of Trinidad
and Tobago. See Tr. at 54. Armed with this information, he
decided to interview Defendant for a second time on June 1,
2005. Under these circumstances, the Court has no doubt
that, at the time of that interview, SA Polouski knew or
should have known that, if Defendant continued to claim that
he was a United States citizen, his statement could be used
to support criminal charges against him. Accordingly, the
Court grants Defendant’s motion to suppress his June 1,
2005 statements.[fn4]

IV. CONCLUSION

Based upon the evidence adduced at the suppression hearing
and the applicable law and for the reasons stated herein,
the Court hereby

ORDERS that Defendant’s motion to suppress the statements
that he made to immigration officers during his May 27,
2005 interview is DENIED; and the Court further

ORDERS that Defendant’s motion to suppress the statements
that he made to immigration officers during his June 1,
2005 interview is GRANTED; and the Court further

ORDERS that Defendant’s motion to suppress the statements
that he made to Page 10 immigration officers during his
December 15, 2005 interview is DENIED AS MOOT based upon
the Government’s statement to the Court that it does not
intend to use these statements as evidence in its
case-in-chief; and the Court further

ORDERS that the Government shall initiate a telephone
conference with the Court and opposing counsel, using a
professional telephone conferencing service, on November
22, 2006, at 9:30 a.m. to set a trial date for this matter.

IT IS SO ORDERED.

[fn1] In his motion, Defendant also sought suppression of
the statements that he made to immigration officers on
December 15, 2005. However, at the suppression hearing, the
Government informed the Court that it did not intend to use
these statements as evidence in its case-in-chief. See Dkt.
No. 18, Transcript of Suppression Hearing, at 4.

[fn2] This is the same form as the one that the immigration
officers used in this case.

[fn3] The court noted that its conclusion was consistent
with the Ninth Circuit’s decision in United States v.
Salgado, 292 F.3d 1169 (9th Cir. 2002), in which an INS
agent interviewed the defendant, while he was incarcerated
on a state weapons charge, to determine whether he was
subject to deportation. At the time of the interview, the
defendant had not committed an offense to which his
citizenship or nationality would be relevant, and the INS
agent had no reason to think that the defendant’s
statements would later incriminate him. Finding that “`the
questioner [could not] have reasonably suspected that the
question was likely to elicit an incriminating response,'”.
. . the Ninth Circuit concluded that the INS interview was
not an “interrogation” for purposes of Miranda. Rodriguez,
365 F.3d at 260 (quotation omitted).

[fn4] There is no dispute that SA Polouski did not provide
Defendant with a Miranda warning prior to questioning him
on June 1, 2005. Page 1