459 F. Supp. 315 | W.D.N.Y. | 1978
FINDINGS OF FACT and CONCLUSIONS OF LAW
Defendant herein was indicted April 19, 1978 for having about one month earlier attempted to bring one Nemiah Williams into the United States (Williams being an alien not lawfully entitled to enter this country), for having knowingly lied to the Immigration Service concerning Williams’s citizenship and for having conspired with Williams to effect the latter’s entry into the United States. Defendant is said to have made oral statements to a Customs Inspector at the “primary” inspection points, to an Immigration Inspector at the “secondary” inspection point and to a criminal investigator of the United States Immigration and Naturalization Service. Defendant moved to suppress evidence of such statements at trial and a hearing was had before me May 22,1978. Defendant was not present at the hearing with the acquiescence of his attorney and, presumably, at defendant’s choice. The testimony of the Immigration Inspector (Moore) and of the investigator (Sterling) was adduced. A preliminary hearing had been held March 23, 1978 and counsel agreed that the testimony of these witnesses would be the same as there given; however, the Assistant United States Attorney did elicit some direct testimony prior to cross-examination.
Williams and defendant had come to the Rainbow Bridge in Niagara Falls as passengers in an automobile driven by a third individual (Davis). At secondary inspection defendant stated that Williams was unable to speak, that Williams was defendant’s father and that Williams had been born in Miami. Defendant’s responses and explanations were deemed unsatisfactory by Moore who accused defendant of having taken Williams out of a Canadian hospital, Williams being attired in pajamas and wearing a hospital’s sandals. Defendant then admitted that he had picked up Williams, his father, from a Canadian hospital as opposed to his earlier version that they were just driving around. When defendant was unable to name the hospital, defendant said that he would tell Moore the truth which was that his father, Williams, had got out of the hospital and that defendant has picked him up at a Toronto motel. De
At the conclusion of the hearing on this motion (at which hearing defendant voluntarily was not present and consequently did not testify), defendant’s assigned counsel raised a legal argument not set forth in the motion papers — to wit, that Sterling was obligated to advise defendant again as to his Miranda rights when he resumed interrogating defendant after the approximately one-hour hiatus necessitated for the questioning of Davis. He cites no legal authority in support of such argument. Patently, the second closeting of defendant and Sterling was part and parcel of the same general session at the outset of which defendant adequately (on the basis of the evidence placed before me) was apprised of his attendant constitutional rights. Defendant was questioned, his companion Davis was queried and the questioning of defendant resumed (albeit in a different office because the occupant of the first-used office had reported for her work and with the time-to-time presence of one or two other Immigration agents or investigators). There was no need to re-acquaint defendant with his rights.
Defendant contends that his statements were not given voluntarily but that they were enticed from him by Moore’s and Sterling’s declamations of the harsh sentence that could be imposed upon him coupled with promised leniency should he “cooperate”. Nothing in the record indicates any such promise.
The sole tenable position taken by defendant is that Moore accused defendant of lying to him and of attempting to smuggle Williams into the United States and advised defendant of the harsh punishment that awaited one who smuggled or attempted to smuggle and that Moore never advised defendant of his constitutional rights to re
Significant, also, is the fact that the United States Court of Appeals for the Seventh Circuit differentiated Campos-Serrano from its own earlier decision in United States v. Dickerson, 413 F.2d 1111 (1969).
“[W]e have determined that the inception of the first contact with the taxpayer after referral to the Intelligence Division is the appropriate point at which to require the Miranda-type warnings * * *’
The dissenting opinion notes that the majority has distinguished “between the revenue agent before IRS has internally decided to consider prosecution and the revenue agent or special agent after such decision.” Id., at 1118. The same court in Chavez-Raya v. Immigration & Naturalization Serv., 519 F.2d 397 (1975), defined the underlying rationale of Dickerson as “once the case has been transferred to the Intelligence Division it has sufficient criminal aspects to activate the Miranda warning requirement.” Id., at 402. In the next sentence the court recognized that such approach has been rejected elsewhere. See, United States v. White, 417 F.2d 89, 91 (2d Cir. 1969), cert. denied 397 U.S. 912, 90 S.Ct. 910, 25 L.Ed.2d 92, reh. denied 397 U.S. 1030, 90 S.Ct. 1256, 25 L.Ed.2d 543 (1970), and United States v. Dawson, 486 F.2d 1326,1329 (5th Cir. 1973). Defendant’s supporting memorandum (unpaginated) claims that “[t]he setting at the time that the Defendant Williams [sic] was interrogated by the secondary inspector [Moore] is closely analogous to the situation were [sic] a taxpayer suspected of criminal activity in connection with the preparation and filing of Federal Income Tax Returns is questioned by Internal Revenue Service Agents” wherein “[t]he Courts have held that before a special agent may question a taxpayer relative to the preparation of [sic] filing of tax returns where a criminal activity is being investigated, the agents must give the taxpayer a so called Miranda warning.” He cites as his single authority Campos-Serrano, which has, because of defendant’s attempt to rely upon such alleged parallelism, been fully treated hereinabove and been shown to depend only upon Dickerson, now overruled as noted herein above. Even Dickerson safeguarded the statements in the instant case because Moore ceased his questioning immediately upon hearing that defendant was being paid to bring Williams in and because Moore thereupon called in the criminal investigator who at once apprised defendant of his Miranda rights.
There properly was a detention of defendant by Moore with attendant questioning by Moore without defendant’s having been apprised of his rights by Moore or anyone else. Immigration officers, such as Moore, are charged with a responsibility to examine all aliens who seek admission to the United States. 8 U.S.C. § 1225. It is reasonable and not far-fetched to hold that every person who presents himself or herself at a border point and seeks admission into the United States can be considered an alien until the opposite (namely, citizenship)
Was such point reached earlier? In my opinion it was not. Admittedly, Moore may have been somewhat bullying and overreaching in his accusations that defendant was trying to smuggle Williams into this country and that defendant was lying in his responses. Perhaps suppression of the later-given confession ought to be granted defendant solely as a supervisory sanction to Immigration officials and as a warning not to engage in such in the future. I decline the invitation to exercise my discretion by imposing such a sanction. Only Moore and the Special Investigator Sterling testified at the suppression hearing. Moore said that he was concerned that Williams, who remained mute, might be bringing some communicable disease into the United States but did admit that he threatened defendant with a fine and imprisonment if defendant lied. (At the trial itself Moore testified that defendant stated that Williams was defendant’s father who couldn’t talk and who was a natural born citizen of the United States and that defendant’s name was Porter. He said that Williams had suffered a stroke but couldn’t explain what a stroke is. Moore told defendant that if he were engaged in smuggling the same would be discovered and advised defendant what the penalty would be. Defendant said he had procured Williams from a hospital but couldn’t name the hospital. Defendant then said he had picked up Williams at a certain motel and then, when Moore accused defendant of bringing in Williams illegally, defendant admitted that he was being paid money to transport Williams and produced an airline ticket which showed defendant’s true name.) Moore said that he summoned Sterling when he, Moore, became convinced that $200 was being paid to bring Williams into this country. Moore did not advise defendant of his rights but stopped his questioning and turned defendant over to Sterling, advising Sterling what defendant had stated con
The evidence convinced me that defendant’s constitutional rights had been adequately observed and that the oral statements made to Moore and to Sterling were properly admitted into evidence before the jury.
. One of which was “whether the court below unduly extended Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, by holding, on the facts of this case, that agents of the Immigration and Naturalization Service were required to give [Campos-Serrano] warnings before asking him to produce his alien registration card.” 404 U.S. at 302, n. 1, 92 S.Ct. at 476.
. Overruled in United States v. Fitzgerald, 545 F.2d 578 (7th Cir. 197(5).