U.S. v. Ali

• Decision Date: 09 January 1996
• Docket Number: No. 1720,D,1720
• Citation: 68 F.3d 1468
• Parties: UNITED STATES of America, Appellee, v. Farid ALI, Defendant-Appellant. ocket 94-1600.
• Court: U.S. Court of Appeals — Second Circuit

Page 1468

68 F.3d 1468

UNITED STATES of America, Appellee, v. Farid ALI, Defendant-Appellant.

No. 1720, Docket 94-1600.

United States Court of Appeals,

Second Circuit.

Argued June 23, 1995.

Decided Oct. 23, 1995.

As Amended Jan. 9, 1996.

Steven M. Statsinger, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York City, for Defendant-Appellant.

Faith Gay, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney, Eastern District of New York, Susan Corkery, Assistant United States Attorney, Brooklyn, New York, of counsel), for Appellee.

Before: KEARSE, ALTIMARI and PARKER, Circuit Judges,

PARKER, Circuit Judge:

Defendant Farid Ali appeals from a judgment entered on October 13, 1994 in the United States District Court for the Eastern District of New York following his conviction by jury of three crimes: (1) attempting to export shotguns without a license, in violation of 50 U.S.C.App. Sec. 2410(a); (2) delivering firearms to a common carrier for transportation without notice to the carrier, in violation of 18 U.S.C. Sec. 922(e); and (3) making a false statement to a customs agent, in violation of 18 U.S.C. Sec. 1001.

On appeal, defendant argues (1) that the court (Sterling Johnson, Jr., J.) should have granted his motion to suppress statements he made to customs officials as obtained in violation of Miranda; (2) that the court (Joanna Seybert, J.) erred by not instructing the jury that "willfulness" is an element of the offense charged in count 2; (3) that the false statement conviction must be reversed under the "exculpatory no" doctrine; and (4) that the false statement conviction must be reversed because the statements at issue were not material.

We hold that the district court applied the wrong legal standard in ruling on defendant's motion to suppress, and we remand for a new hearing on that motion. Because the statements at issue in the suppression hearing were used as evidence to obtain convictions on all three counts, we also briefly address defendant's remaining arguments because the district court will revisit these issues if its reconsideration of the suppression motion results in a new trial.

BACKGROUND

The uncontested testimony at the suppression hearing held on August 16 and 23, 1993 reveals the following. In February 1993, a customs inspector at John F. Kennedy Airport in New York City was conducting a routine x-ray examination of luggage to be boarded on Pakistan International Airlines (PIA) Flight 724. The inspector, Sikes Reese, discovered shotguns in certain luggage checked under defendant's name. Customs agents then inquired with PIA and determined that Ali had not declared that he was transporting weapons, as required by law.

Reese and six other customs officials, five in uniform with weapons visible, collected at the flight's boarding gate to question Ali. After identifying him, officers asked for and obtained Ali's passport, airline ticket, and boarding pass. Ali was "taken aside," away from the line of boarding passengers, to an adjacent corridor or "jetway." He was not given Miranda warnings at this time.

Asked at the suppression hearing whether Ali was "free to go" after the agents took his documents and determined his identity, Reese stated, "No, he was not." The testimony of another agent, Michael Karcher, was more equivocal (and less forthright) on this point:

Q. Was this defendant Ali at the moment that he exhibited a boarding pass with his name on it, was he free to proceed as he pleased or did not please, or was he under the control or detention of either yourself, Reese and or all of the other men ...?

A. He was asked to step aside and then an interview was conducted.

MR. HONIG [defense counsel]: If your Honor pleases, I ask that the question be answered as it is asked.

THE COURT: Was the defendant either arrested or detained at the moment you pulled him out of the line?

THE WITNESS: He wasn't arrested.

Q. I think if you listen to his Honor's question, he asked was he arrested or detained. What is your answer to the full question, please?

A. He was not allowed to proceed to board the airline. He was asked to step aside and speak to the inspector and myself.

Q. And was he therefore detained by you, Reese or the other members of this investigation?

A. You are describing detained. Was he detained from boarding the flight, he was.

Q. Could he have, if he chose, moved away from the ambit of those people that segregated him and gone out into the passenger area outside the jetway and ramp?

A. He could have demanded to if he wanted to.

Q. And tell me, sir, what would you and those other earnest gentlemen have done if he would have attempted to?

MS. FLEISCHMAN [prosecutor]: Objection, your Honor.

THE COURT: I will allow it.

A. We wouldn't have allowed him to run away.

....

THE COURT: ... In your mind was he detained?

THE WITNESS: He wasn't allowed to board the aircraft and he was being interviewed by us.

Q. And he would not have been allowed to leave that jetway and go back out into the open passenger area of that Pakistani terminal; am I correct?

A. I don't believe so, no. ¹

With the other six officers in the immediate area, Reese began to interview Ali, first confirming that Ali understood English. Reese then explained the currency reporting requirements and gave Ali a currency declaration form, which Ali completed. Next, Reese informed Ali about other export regulations, in particular, that a license was required to bring certain items, including firearms and computer equipment, out of the country. Reese asked Ali whether he was transporting any of these items. Ali answered "no." After further explanation of which commodities would require a license, Reese again asked if Ali had any in his luggage, and Ali again answered "no." Reese inquired how much luggage he was transporting, and Ali answered that he had three suitcases and one box. Asked what his luggage contained, Ali answered, "some clothing, some liquor, a VCR." Ali also stated that he had packed the three suitcases but he had not packed the box. According to the agents' testimony, Ali then admitted that he had sixteen shotguns in the luggage. He was thereafter arrested, brought to the customs building and read his Miranda rights for the first time. Approximately fifteen minutes elapsed from the time the officials segregated Ali from other passengers until the arrest.

DISCUSSION

1. The Motion to Suppress

Following a review of the evidence as stated above, the district court concluded that the officers had reasonable suspicion of criminal activity, thus warranting an investigatory stop under Terry v. Ohio, 392 U.S. 1 The questioning of the defendant during his detention on the jetway did not constitute custodial questioning sufficient to trigger Miranda protections. As made clear at the hearings, one of the goals of the agents [sic] questioning was a determination as to whether defendant held a valid export license. Only when defendant admitted that he had no such license was he taken into custody. Therefore, the statements made by defendant while in the jet way were but were [sic] pre-arrest statements law fully [sic] obtained.

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Without further explanation, the court then held:

The statements are not the subject of an unlawful interrogation and therefore defendant's motion to suppress these statements is denied.

United States v. Ali, No. 93 CR 0281, slip op. at 6-7 (E.D.N.Y. Sept. 27, 1993).

The district court's ruling on custody is reviewed in this Circuit for "clear error." United States v. Mussaleen, 35 F.3d 692, 697 (2d Cir.1994). "Moreover, after a court has denied a motion to suppress, we view the evidence in the light most favorable to the government." Id.

Initially, we note that the evidentiary record does not support the district court's finding that defendant admitted before his arrest that he had no export license for the weapons. Rather, Ali first stated that his luggage did not contain the sorts of items for which a license is required, and then admitted that his luggage did contain firearms. More problematic, however, is the court's legal reasoning: the court seems to have concluded that the encounter did not constitute custodial interrogation at least in part because (1) the stop was justified under Terry and (2) one of the goals of the agents was to determine whether defendant held a valid export license. Neither reason supports the court's conclusion.

Miranda warnings are required prior to the interrogation of a suspect who is in custody. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. Defendant argues on appeal both that he was in custody at the time he was questioned, and that the questions constituted interrogation under Miranda and its progeny. The government disputes only the custody issue, apparently conceding that what occurred was interrogation.

"The test for determining whether [a suspect] was in custody is 'whether a reasonable person in the defendant's position would have understood himself to be "subjected to the restraints comparable to those associated with a formal arrest." ' " United States v. Mussaleen, 35 F.3d at 697 (quoting United States v. Mitchell, 966 F.2d 92, 98 (2d Cir.1992) (in turn quoting Berkemer v. McCarty, 468 U.S. 420, 441, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984))). "An accused is in 'custody' when, in the absence of an actual arrest, law enforcement officials act or speak in a manner that conveys the message that they would not permit the accused to leave." Campaneria v. Reid, 891 F.2d 1014, 1021 n. 1 (2d Cir.1989), cert. denied, 499 U.S. 949, 111 S.Ct. 1419, 113 L.Ed.2d 471 (1991). The Supreme...