U.S. v. Boskic

• Decision Date: 22 October 2008
• Docket Number: No. 07-1188.,07-1188.
• Citation: 545 F.3d 69
• Parties: UNITED STATES, Appellee, v. Marko BOSKIC, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

545 F.3d 69

UNITED STATES, Appellee, v. Marko BOSKIC, Defendant, Appellant.

No. 07-1188.

United States Court of Appeals, First Circuit.

Heard February 6, 2008.

Decided October 22, 2008.

Max Stern, with whom Patricia Garin, Jeffrey P. Wiesner, Alexandra H. Deal, and Stern, Shapiro, Weissberg & Garin were on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, TASHIMA^* and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

This case requires us to address a number of important issues: the relationship between deceptive interrogation tactics used by law enforcement and the voluntariness of statements under the Fifth Amendment; the attachment of the right to counsel under the Sixth Amendment; and the applicability of the fundamental ambiguity and literal truth defenses in a false statement prosecution. Appellant Marko Boskic, a citizen of Bosnia, was found guilty on two counts of making false statements in his applications for refugee status and permanent residency in the United States. See 18 U.S.C. § 1546. The government claimed that Boskic deceived immigration officials by concealing his service in the Army of the Republic Srpska, which has been held responsible for the massacre of 8,000 Muslim men and boys during the Bosnian War.

On appeal, Boskic cites two errors: (1) the district court should have granted his motion to suppress statements made during an interview with government agents because those statements were secured in violation of his Fifth and Sixth Amendment rights; (2) the court should have granted his motion for judgment of acquittal because the evidence was insufficient to support a finding of falsity in his two statements. We find no error and affirm.

I.

We draw our account of the events at issue primarily from the evidence provided at Boskic's suppression hearing and trial. The facts underlying this appeal are largely undisputed. To the extent that the facts pertinent to the motion to suppress are contested, we rely on the district court's factual findings unless they are clearly erroneous. United States v. Perez-Montanez, 202 F.3d 434, 438 (1st Cir. 2000). In the context of the motions for judgment of acquittal, we take the relevant facts in the light most favorable to the jury's verdict. United States v. Bucci, 525 F.3d 116, 121 (1st Cir.2008).

A. Background

On February 17, 2000, Boskic, while in Germany, filed an Application for Registration for Classification as a Refugee, known as a Form I-590, which included questions regarding his past military service, his criminal history, and his reasons for seeking refugee status. Based on the information he provided on the Form I-590, Boskic was approved for refugee status. He immigrated to the United States later that year, settling in Peabody, Massachusetts. In April 2001, he filed an Application to Register as a Permanent Resident or Adjust Status, known as a Form I-485, which also included questions about his past military service and his criminal history. Boskic was granted permanent residency on June 29, 2002.

Alistar Graham, an investigator for the International Criminal Tribunal for the former Yugoslavia ("ICTY") between 2001 and 2005, collected information identifying Boskic as a member of the 10th Sabotage Detachment of the Army of the Republika Srpska in the course of his investigation of alleged war crimes in and around Srebrenica, Bosnia and Herzegovina. Acting on Graham's information, the Joint Terrorism Task Force ("JTTF") in Boston, which included representatives of Immigration and Customs Enforcement ("ICE"), the Federal Bureau of Investigation ("FBI"), and the United States Attorney's Office, initiated an investigation in the fall of 2002 to determine whether Boskic had committed immigration fraud by failing to disclose on his I-590 and I-485 forms that he had been a member of the 10th Sabotage Detachment of the Army of the Republika Srpska. The JTTF also had information indicating that Boskic had a criminal record prior to entering the United States, which Boskic had not listed on his immigration forms.

The primary agents on this investigation were FBI Agent Greg Hughes, ICE Agent Thomas Carroll, and Assistant U.S. Attorney Kimberly West. Graham assisted these JTTF agents but was not a primary agent. He provided evidence identifying Boskic as a member of the 10th Sabotage Detachment, including video footage of Boskic's participation in that unit. Graham was motivated to help the JTTF agents in their investigation of Boskic because, in part, he hoped that he could obtain Boskic's assistance in the ICTY's investigation of senior military officials involved in the Srebrenica massacres.¹

In the spring of 2004, the JTTF agents learned that Boskic had submitted an application for travel documents. Acting upon this information, they devised an immigration interview concerning the travel documents as a ruse for an interview regarding Boskic's past military service. The JTTF planned to obtain an arrest warrant before the interview, but not to disclose to Boskic at the outset of the interview that he was under criminal investigation. ICE Agent Carroll would start the interview. Once Boskic's criminal history had been raised, FBI Agent Hughes would join the conversation. Then, Graham would enter the interview room with an interpreter to solicit information from Boskic about the 10th Sabotage Detachment.

In response to a notice to appear, Boskic arrived for his interview at the JFK Federal Building in Boston, Massachusetts on August 25, 2004 at 3:30 p.m. Consistent with the plan, JTTF had secured an arrest warrant charging Boskic with two counts of immigration fraud.

B. Interviews

Carroll met Boskic in the reception area, introducing himself as "Tom Carroll" and escorting Boskic to the interview room. Once they entered the room, Carroll asked Boskic to remain standing so that he could administer an oath.² After Boskic completed the oath and sat down, he was provided with a form advising him that he had the right to remain silent and to receive the assistance of counsel. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). These Miranda warnings were written in English on one side of the form and in Serbo-Croatian on the other side.³ Carroll read Boskic his Miranda warnings in English with Boskic reading along. Boskic signed the English side, on which Carroll had already written the date and time, and then read the Serbo-Croatian side of the form before signing it and noting the date and time.⁴ Carroll asked Boskic whether he understood what he had read and Boskic said that he did.

At the outset of the interview, Carroll examined Boskic's passport and determined that Boskic did not need the travel documents for which he had applied because Boskic had the proper stamp in his Bosnian passport indicating that he was a permanent resident of the United States. Although Carroll informed Boskic that he did not need additional travel documents, Boskic insisted, based on information from a friend, that he could not travel on his Bosnian passport because Bosnia and Herzegovina had recently issued a new series of passports. According to the district court, Boskic continued with the interview because he believed that the purpose of the interview was to go over his application for a re-entry permit.

Boskic spent forty-five minutes providing basic biographical information, such as his date of birth, when he came to the United States, and his reasons for applying to travel. Then Carroll asked Boskic about his prior military experience. Boskic responded that he had fulfilled the two-year mandatory military service for the Yugoslav Army in 1983 and 1984. When explicitly asked whether he had any additional military experience, Boskic said "no." Similarly, Boskic denied having a criminal record in Bosnia. Carroll then told Boskic that he had information about Boskic's criminal record and needed to bring in the FBI to assist with the questioning.

At that point, Carroll left briefly and returned with Hughes. Carroll gave to Boskic what he described as a condensed version of the Miranda warnings, reminding Boskic that his Miranda rights were still in effect and that he was still under oath. In response to Hughes' questioning, Boskic said that he was from Bosnia but denied having been a soldier in the Bosnian War. When Hughes confronted Boskic with his Bosnian criminal record, Boskic claimed that the charges had been fabricated by Muslim officials who were punishing him for declining to join their army. Hughes questioned Boskic for about fifteen minutes before telling him that there was another person who wanted to speak with him. Hughes then left the room, returning with Graham and a Serbo-Croatian interpreter.

When Graham and the interpreter entered, Carroll once again reminded Boskic that his Miranda rights were still in effect. Graham introduced himself as an investigator from the ICTY and asked whether Boskic wanted to continue the interview using the interpreter, which Boskic elected to do. Graham instructed Boskic to listen to what he had to say and then proceeded to talk for approximately ten minutes about his investigation of the events associated with the massacre at Srebrenica. Graham told Boskic that he knew Boskic had been part of the 10th Sabotage Detachment and that he had video footage of Boskic participating in that unit's award ceremony. Then Graham told Boskic that Boskic was not the subject of his investigation.

At that point, Graham asked Boskic if he wanted to talk to him or to watch the video. Boskic elected to do the latter. He confirmed his identity in the video and commented that he knew this day would come. After repeating that Boskic was not the subject of his investigation, Graham asked Boskic for his cooperation. Boskic agreed to help and, according to Graham,...