894 F.2d 120 (5th Cir. 1990), 89-1273, United States v. Harrell

Docket Nº:89-1273.
Citation:894 F.2d 120
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Douglas Ray HARRELL, Defendant-Appellant.
Case Date:January 31, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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894 F.2d 120 (5th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,


Douglas Ray HARRELL, Defendant-Appellant.

No. 89-1273.

United States Court of Appeals, Fifth Circuit

January 31, 1990

Rehearing Denied March 1, 1990.

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Richard A. Henderson, Ft. Worth, Tex. (court appointed), for defendant-appellant.

Delonia A. Watson, Asst. U.S. Atty., Dallas, Tex., Frederick Schattman, and Marvin Collins, U.S. Attys., Fort Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, SMITH, and DUHE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendant Douglas Ray Harrell challenges his conviction for aiding and abetting two Mexican nationals in falsely representing themselves to be United States citizens before immigration officials. Concluding (1) that relevant portions of the government interrogations were "noncustodial" in nature and do not raise Miranda concerns; (2) that the evidence was legally sufficient to sustain a conviction under 18 U.S.C. Secs. 911 and 2; and (3) that section 911 does not require the government to disprove every possibility that those accused thereunder are naturalized United States citizens, we affirm.


Harrell had given two Mexican citizens a copy of the same Texas birth certificate, belonging to a decedent known as "Anthony Ramirez," and directed them to fly to Dallas from Mexico City on separate flights. Immigration and Naturalization Service (INS) inspectors stopped the first Mexican to arrive, Jorge Posada-Alvarez (Alvarez), at an airport immigration checkpoint designated for United States citizens only. Alvarez presented the inspectors

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with the "Anthony Ramirez" birth certificate, represented himself to be a United States citizen, and offered Harrell's Texas address as his then-current residence.

INS officials became suspicious of Alvarez who, despite the Texas birth certificate, spoke little English. Upon further questioning, Alvarez admitted that the birth certificate was false, that it had been provided to him by Harrell, and that Harrell would be arriving in Dallas on a later flight that day from Mexico City. INS inspectors stopped Harrell hours later at the immigration checkpoint upon his arrival, fitting the physical description given by Alvarez and accompanied by Anastacio Alvarez-Duran (Duran).

Duran also represented himself to be a United States citizen and presented the same "Anthony Ramirez" birth certificate to INS inspectors. Upon further questioning, Duran informed INS that Harrell had supplied him with false documentation in order to gain entry into the United States so that he could work thereafter for Harrell.

Harrell was informed by INS agents that he was being detained pursuant to an investigation regarding the importation of illegal aliens. He was taken to an adjacent INS office separated from the public by a series of glass walls and interior conference areas. There, near the beginning of the interrogation, Harrell informed the agents that he indeed had supplied the aliens with false documentation for purposes of illegal entry into the United States. Several agents interviewed Harrell, detaining him for approximately 60-75 minutes before releasing him; no INS agent, however, provided Harrell with Miranda warnings.

Several days after the airport detention, INS special agent Kulasxa questioned Harrell at the defendant's home. Kulasxa testified that before questioning, he "tended to give [Harrell] the classic Miranda warnings." However, the agent erroneously instructed Harrell that if the matter proceeded to trial, an attorney would be furnished if he could not afford one. There, the defendant once again admitted to supplying false documentation to the illegal aliens.

The matter did proceed to trial, and the principal witnesses against the defendant were Alvarez, Duran, and Kulasxa. A motion to suppress Harrell's confession was denied. Kulasxa proceeded to testify only as to Harrell's incriminating remarks offered during those early moments of the airport detention and during the home interrogation days later.

Alvarez and Duran testified that the defendant had furnished each of them with false birth certificates and had offered assistance in gaining entry into the United States. They also testified that they were Mexican citizens. The government, however, never asked whether they were naturalized citizens of the United States, an oversight, the defendant argues, of great significance. Harrell was convicted and sentenced.

Harrell unsuccessfully moved for an acquittal based upon the ground that the evidence was insufficient to sustain a conviction; to his understanding, the law presumes that Alvarez and Duran were naturalized citizens at the moment they tried to gain entry into the United States. Since the government did not rebut such a presumption, Harrell asserts, it has not proved every necessary element of section 911 beyond a reasonable doubt, and his conviction as an accessory, therefore, should be reversed.

On appeal, Harrell renews his argument that his conviction pursuant to sections 911 and 2 must be reversed because the government failed in carrying its "negative burden" of disproving that Alvarez and Duran were naturalized citizens. He also argues that any incriminating information supplied to INS before he was read his Miranda warnings, or the fruits of such information, should have been suppressed at trial.


The question of whether Miranda's guarantees have been impermissibly denied to a criminal defendant, assuming the facts as established by the trial court are not

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clearly erroneous, is a matter of constitutional law, meriting de novo review. See United States v. Torkington, 874 F.2d 1441, 1445 (11th Cir.1989); United States v. Brady, 819 F.2d 884, 886 (9th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1032, 98 L.Ed.2d 996 (1988). If that independent review demonstrates that Miranda has not been respected, and that statements admitted at trial have been elicited from the defendant without adequate precautions, reversal...

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