604 F.2d 908 (5th Cir. 1979), 78-5371, United States v. Henry

Docket Nº:78-5371.
Citation:604 F.2d 908
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Leroy HENRY, Defendant-Appellant.
Case Date:October 16, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 908

604 F.2d 908 (5th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

Leroy HENRY, Defendant-Appellant.

No. 78-5371.

United States Court of Appeals, Fifth Circuit

October 16, 1979

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        Frederick E. Graves, Miami, Fla. (Court-appointed), for defendant-appellant.

        A. Scott Miller, Linda C. Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

        Appeal from the United States District Court for the Southern District of Florida.

        Before GODBOLD, Circuit Judge, SKELTON, Senior Judge, [*] and RUBIN, Circuit Judge.

        SKELTON, Senior Judge.

        Appellant, Leroy Henry, a citizen of Jamaica, was indicted, tried by a jury, and convicted in the United States District Court for the Southern District of Florida for falsely and wilfully representing himself to be a citizen of the United States in violation of 18 U.S.C. § 911. 1 He was sentenced to imprisonment for a period of sixty days. The Appellant has appealed his conviction and sentence to this court. We affirm.

        I. FACTS

        On January 18, 1978, the Appellant, Leroy Henry, arrived at Miami International Airport aboard an Air Jamaica flight which had originated in Jamaica. He approached the first immigration inspector, Laura Lee Hankins, and presented both a customs declaration form prepared in the name of Samuel Earl Lymas whose birth date was listed as October 13, 1947, and a birth certificate in the name of Samuel Earl Lymas, who was born on October 13, 1947, at Louise, Mississippi. The Appellant was, however,

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unable to answer Ms. Hankins' inquiry as to the location of the city of Louise, Mississippi, and Ms. Hankins noticed that, in the space provided on the declaration form for stating the country of citizenship, there appeared the letters "JAM", which had been crossed out with the designation "U.S." inserted next to it. In addition, she recognized that the Appellant spoke with a foreign accent. Because Ms. Hankins suspected that he was not the person he represented himself to be, she referred him to a waiting room to speak with a second immigration inspector. She did not speak to the second inspector. At no time during her questioning did Ms. Hankins advise the Appellant of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

        Inspector Hankins transferred the Appellant to a second immigration officer, Kathy Sheehan, who was assigned to the secondary inspection area, where people not readily admissible during primary inspection are sent for a more detailed inspection so as not to interfere with the flow of traffic through the primary inspection lines. After reviewing documents left for her inspection, i. e. the customs declaration, birth certificate, and a one-way airline ticket from Jamaica, Ms. Sheehan spoke with the Appellant and requested that he state his true name and place of birth. He stated that he was Samuel Lymas and that he was born in the United States of America. After a search of his baggage by a customs inspector, the Appellant was again asked his name by inspector Sheehan and he stated that his name was Williston Smith and that he was born in Jamaica. Ms. Sheehan then began the paperwork on a report preparatory to sending the Appellant downtown to the district office, and again asked him his correct name. This time he stated that he was Leroy Henry and that he was born in Jamaica in 1947. He was not questioned further by Ms. Sheehan. After the Appellant had completed this interview with Ms. Sheehan, he was escorted from her office by representatives of Air Jamaica, who were responsible for taking him to the office of Mr. Reissig of the Immigration and Naturalization Service. During her questioning, Ms. Sheehan did not give the Appellant a "Miranda warning." She later testified that at the time of her questioning the Appellant was not free to go.

        The Appellant testified at his trial that Ms. Sheehan attempted to compel him to cooperate by both threatening him with a long jail sentence and by promising him that he would be returned to Jamaica. This was denied by Ms. Sheehan.

        The next morning, January 19, 1977, the Appellant was brought to the office of Investigator Reissig by a guard service used by Air Jamaica. This was the first contact Investigator Reissig had with the Appellant. He was not present when Ms. Sheehan questioned Appellant. However, Ms. Sheehan sent a report of her questioning of Appellant to Reissig who read it before seeing the Appellant. Sheehan did not talk to Reissig. When the Appellant arrived at Reissig's office, Reissig placed a printed form containing Miranda warnings in front of the Appellant after first ascertaining that he could read and write. The Appellant told him that he understood the rights he had read. Reissig also orally told the Appellant that he did not have to tell Reissig anything, that he could have a lawyer present to advise him, and that the information could be used against him if he decided to make a statement. Investigator Reissig testified at the trial that he made no promise of any special benefits or advantages to Appellant to induce him to make a statement. After Reissig fully advised the Appellant of his rights, he placed him under oath and took his statement with a stenographer present.

        In that statement, the Appellant admitted that his true and correct name was Leroy Henry, that he was born in St. Ann's on May 15, 1947, and that he was a citizen of Jamaica. He further admitted that the birth certificate from the State of Mississippi, with the name of Samuel Earl Lymas on it, was given to him by a good friend whose name was Mungo. The Appellant also admitted that he had never been to Mississippi or to the United States before, and had

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never applied for a visa with the American Consulate in Kingston, Jamaica.

        After giving this sworn statement, the Appellant was placed under arrest. A copy of his Jamaican birth certificate was obtained subsequent to his giving the statement.

        In his testimony at the trial, the Appellant said that he was never advised of his Miranda rights by Mr. Reissig or anyone else, and that the only reason that he made the statement and signed it was because of Mr. Reissig's promises, assurances and threats. All of this testimony was contradicted by Mr. Reissig. The jury chose to believe Mr. Reissig and the other Government witnesses, and convicted the Appellant.

        At the beginning of the trial, Appellant filed a motion for continuance, which was denied. Thereafter, on the second day of the trial, he filed a motion to suppress the inculpatory statements he had made to the immigration officials. The trial judge heard evidence and argument on the motion and then denied it.

        II. The First Immigration Inspector Was Not Required To Give The Appellant A Miranda Warning Prior To Nor During Her Questioning Of Him.

        The Appellant contends that he should have been given the Miranda warning and explanation of his rights by the first immigration inspector, either prior to or during her interrogation of him, and that her failure to do so rendered his later inculpatory statement inadmissible at the trial. We do not agree.

        The Government argues that an alien, such as the Appellant, "standing at the border" and seeking entry into the country, does not enjoy the same rights in criminal proceedings that are accorded to aliens who are already in the country, legally or illegally, and, therefore, the Appellant did not have a right to a Miranda warning prior to or during his interview with the first inspector. This contention is based on the Federal Government's right to exclude aliens and otherwise control and regulate their entrance into the country. 2

        The cases relied on by the Government in support of its position involved deportation, exclusion or social benefit proceedings of aliens and were not criminal cases. 3

        The courts have held that those kinds of cases are not criminal in nature. 4 Consequently, they would not control the disposition of the case before us.

        It is well settled that the Federal Government has control over the entrance of aliens into this country. The Supreme Court, in the case of Lem Moon Sing v. United States, 158 U.S. 538, 15 S.Ct. 967, 39 L.Ed. 1082 (1895), stated this principle of law as follows:

        " . . . (A)ccording to the accepted maxims of international law, every sovereign nation has the power, inherent in sovereignty and essential to self preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such condition as it may see fit to prescribe . . . "

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        "The power of congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through the executive officers, without judicial intervention, is settled by our previous adjudications. 158 U.S. at 547, 15 S.Ct. at 970, 39 L.Ed. at 1085."

        Pursuant to its power to regulate the admission and exclusion of aliens, the Federal Government has provided in its immigration laws different requirements for aliens already in the country to those seeking admission. See 8 U.S.C.A. §§ 1226 and 1251. As a result, it has been held that under these laws the rights of aliens who are already in the country are different from the rights of aliens seeking admission at the border (i. e., standing at the border). Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958). In the Leng May Ma case, the Supreme Court stated:

        "It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our...

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