832 F. Supp. 2d 699
W.D. Tex.2010Background
- Defendant Posada Carriles is charged in an eleven-count federal indictment for perjury, obstruction, naturalization fraud, and false statements related to removal proceedings and a 2006 naturalization interview.
- Removal proceedings began May 18, 2005, and the naturalization interview occurred April 25–26, 2006; the interview included Fifth Amendment invocations by Posada.
- Posada moved on January 20, 2010 to redact naturalization interview tapes/transcripts to exclude Fifth Amendment material; the motion was denied as premature.
- The government sought to admit the interview transcripts in full, arguing invocations were relevant to comprehension and to distinguish lawful from unlawful conduct.
- The court held the government’s motion to admit invocations was denied, Posada’s motion to redact granted in part, and taken under advisement in part, with further rulings scheduled for a status conference.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May the government comment on Fifth Amendment invocations in a naturalization interview in a criminal case? | Government argues invocations are admissible to show comprehension and awareness. | Posada contends invocations violate the Fifth Amendment and are improper comment. | Prohibited; Johnston rule applies to bar comment on invocations. |
| Are invocations admissible under Rule 403 balancing? | Government says invocations are probative of understanding and intent. | Invocations are highly prejudicial and of low probative value. | Excludable under Rule 403 due to unfair prejudice and low probative value. |
| Do exceptions to the general rule against commenting on invocations apply here? | Government seeks several narrow exceptions to permit comment. | No applicable exception supports admissibility of invocations in this context. | Exceptions do not apply; Johnston rule remains controlling. |
| Is the invocations' potential impeachment use permissible against Posada if he testifies? | Invocations could be used to impeach if Posada testifies. | Impeachment using post-invocation silence is improper and violates due process. | Not permissible; silence provoked by government warnings cannot be used to impeach. |
Key Cases Cited
- Lefkowitz v. Turley, 414 U.S. 70 (U.S. 1973) (protects self-incrimination privilege in civil and criminal settings)
- Chavez v. Martinez, 538 U.S. 760 (U.S. 2003) (high-level self-incrimination protections; distinguishes core from evidentiary use)
- INS v. Lopez-Mendoza, 468 U.S. 1032 (U.S. 1984) (precludes adverse inferences against aliens in immigration adjudications)
- Griffin v. California, 380 U.S. 609 (U.S. 1965) (prohibits comment on a defendant’s failure to testify in criminal cases)
- Johnston v. United States, 127 F.3d 380 (5th Cir. 1997) (test for prohibited comment on invocation of privilege (two-prong standard))
- Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) (post-Miranda silence cannot be used for impeachment)
- Wainwright v. Greenfield, 474 U.S. 284 (U.S. 1986) (cannot penalize exercise of rights after warnings)
- Rice, 52 F.3d 843 (10th Cir. 1995) (distinguishes privilege invocation context in civil vs. criminal settings)
- Robinson, 485 U.S. 25 (U.S. 1988) (prosecutor may not comment on failure to testify when invoked in civil/criminal settings)
- Posada Carriles, 541 F.3d 344 (5th Cir. 2008) (naturalization interviews treated as civil adjudicatory processes)