U.S. v. Harrell, 89-1273

• Decision Date: 31 January 1990
• Docket Number: No. 89-1273,89-1273
• Citation: 894 F.2d 120
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas Ray HARRELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 120

894 F.2d 120

UNITED STATES of America, Plaintiff-Appellee, v.Douglas Ray HARRELL, Defendant-Appellant.

No. 89-1273.

United States Court of Appeals Fifth Circuit.

Jan. 31, 1990.

Rehearing Denied March 1, 1990.

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:

DefendantDouglas 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. 911and2; 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.

I.

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 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 911and2 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.

II.

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 clearly erroneous, is a matter of constitutional law, meriting de novo review.SeeUnited 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 is not automatic, as such unforewarned statements may have been harmless.SeeHarryman v. Estelle, 616 F.2d 870, 875(5th Cir.)(en banc), cert. denied, 449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76(1980).

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), the Court held that statements made by a defendant in the course of a "custodial interrogation" are not admissible unless certain procedural safeguards (warnings) are respected.Since Harrell was not given any Miranda warnings by INS agents at the airport, his statements are admissible only if the questioning was not a "custodial interrogation."

The test for "custodial interrogation" adopted by this circuit is articulated in United States v. Bengivenga, 845 F.2d 593(5th Cir.)(en banc), cert. denied, --- U.S. ----, 109 S.Ct. 306, 102 L.Ed.2d 325(1988):

The meaning of custody has been refined so 'the ultimate inquiry is simply whether there is a "formal arrest or restraint on freedom of movement" of the degree associated with formal arrest.'The Supreme Court has also explained that 'the only relevant inquiry is how a reasonable man in the suspect's position would have understood the situation.'A suspect is therefore 'in custody' for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.

Id. at 596(citations omitted).See alsoBerkemer v. McCarty, 468 U.S. 420, 440-41, 104 S.Ct. 3138, 3150-51, 82 L.Ed.2d 317(1984).

In Bengivenga, border patrol agents stopped a bus at a routine citizenship checkpoint and asked two passengers purporting to travel to Alice, Texas, to enter an adjoining trailer for questioning concerning suspected marijuana in some passenger luggage similarly destined for Alice.The agents asked the two detainees for their bus tickets, whereupon it was determined that the baggage-claim tickets matched the luggage containing the suspected drugs.The detainees were given Miranda warnings and then arrested.The pre-arrest interrogation took at most 90 seconds.

In upholding the convictions, the en banc court focused upon several factors in determining that the pre-arrest questioning was noncustodial in nature.First, the court noted the short interrogation in that case, recognizing that brief stops mitigate against a belief that an "arrest" has occurred.Id. at 598.See alsoBerkemer, 468 U.S. at 437, 104 S.Ct. at 3148.Second, the court reasoned that the interrogation took place in a public environment that would not lead a reasonable person to believe that he was under formal arrest:

Several factors counteract the effect that moving a suspect from a bus to a building maintained by law enforcement personnel would ordinarily have on a reasonable person's perception of the situation and the degree of restraint imposed.First, the trailer was only a short distance from the bus.Second, the conduct of the agents remained subject to the public scrutiny to the extent that the bus driver was actually present in the trailer drinking coffee.The agents did not completely isolate the [passengers] in an interrogation room.Third, the number of agents did not increase.Only five people were present in the trailer--the bus driver, the two women and the two agents.

845 F.2d at 599-600.

Third, the court noted that the fact of a "fixed checkpoint" interrogation, such as immigration screening, mitigates the subjective fear a reasonable person would otherwise experience.Id. at 599.That is, immigration checkpoints do not take travelers "by surprise" and, in fact, the "law enforcement presence at a fixed checkpoint actually assuages the reasonable person's perception of restraint."Id.The court reasoned,

Routine citizenship checks at fixed checkpoints do not...