U.S. v. Khan
| Decision Date | 12 July 2004 |
| Docket Number | No. 03-CR-127-B.,03-CR-127-B. |
| Citation | 324 F.Supp.2d 1177 |
| Parties | UNITED STATES of America, Plaintiff, v. 7. Imran KHAN, Defendant. |
| Court | U.S. District Court — District of Colorado |
John F. Sullivan, III, John F. Sullivan, III, Atty. at Law, Denver, CO, William
Michael Whelan, Jr., Wm. Michael Whelan, Jr., Atty. at Law, Oakland, CA, for Defendant.
David Michael Gaouette, U.S. Attorney, United States Attorney's Office, Denver, CO, for Plaintiff.
Defendant Imran Khan moves to suppress inculpatory statements under the Fourth and Fifth Amendments. A hearing began on April 9, 2004, and continued twice, to May 27, and to June 28, 2004. The government opposes the motion. Having the benefit of the parties' briefs, evidence presented during the hearing, and oral argument, I grant the motion in part and deny it in part.
The charges in this case arise from Defendant Khan's and the other alleged co-conspirator defendants' (see United States District Court for the District of Colorado case 03-CR-127-B) alleged scheme to arrange for and assist Khan's fraudulent entry into the United States.
Mr. Kahn's case has been severed from that of his co-defendants. Prior to 1996, Khan was a Pakistani national residing in Pakistan. On or about March 4, 1996, Defendant Abdul Qayyum, a naturalized U.S. citizen, filed an immigration visa petition (INS Form I-130) on behalf of Khan. At the time, such a petition could initiate an alien's lawful immigration to the United States. Generally, a Form I-130 petitioner must be an immediate relative of the proposed immigrant: father, mother, brother, sister, son, daughter, step-parent, or legally adoptive parent.
In Khan's petition, signed under penalty of perjury, Defendant Qayyum represented that Khan was his "child" and was not related to him by adoption. Qayyum also provided an affidavit, allegedly filed by him with the Pakistani government in 1989, wherein he represented that Khan was born "of" his "wedlock" with Naseem Ahktar on August 7, 1979. Finally, Defendant Chris Marie Warren-Qayyum's wife-also filed an affidavit (INS Form I-134) on behalf of Khan indicating that he was her stepson. Relying on Qayyum's and Warren's information and affidavits, INS officials approved Khan's petition. Eventually an immigrant visa issued to him. Using the visa, Khan traveled from Pakistan to the United States with Defendant Saima Saima, and entered the country August 19, 1997.
Khan is 24 years old, and has little formal education, but speaks a number of languages, including Punjabi, his native tongue. Khan testified that his English language ability is "50/50," and that it takes him a while to understand and speak. However, his testimony in this case, and the transcript from his March 24, 2003 deportation hearing belie this. Khan has a good grasp of the English language. He does not need an interpreter, responds quickly to questions, and articulates his thoughts well. I find that Khan is of at least average intelligence, if not higher than average. The testimony of Agents Godwin and Castro supports these conclusions.
In late 2002 and early 2003, FBI Special Agent Michael Castro and Bureau of Immigration and Customs Enforcement (BICE) Special Agent Ross Godwin interviewed Mr. Khan's co-defendants. Both agents were members of the Joint Terrorism Task Force headquartered in Denver. The agents sought to ascertain the true familial relationships of the defendants. During all but one of the interviews of the defendants other than Khan, the defendants allegedly stated that Qayyum was Khan's biological father.
Nonetheless, the agents suspected the statements that Qayyum was Khan's biological father were false and that Khan was illegally in the United States. Based on information provided by Qayyum, the agents believed that Qayyum was in Germany-not Pakistan-at the time Khan was conceived. They also believed, based on an intercepted telephone call between Defendant Qayyum and another person that Qayyum acknowledged Khan had entered illegally. Finally, the agents noticed that the other defendants talked about Khan disrespectfully, which was inconsistent with the way the family members otherwise treated each other. The agents believed that this indicated Khan was not a sibling, son, or stepson of other defendants.
On March 6, 2003, having completed interviews with the other defendants, Agents Castro and Godwin traveled to Petaluma, California, to interview Khan, who resided there at the time. The government contends-based on the testimony of both agents-that the agents hoped to interview Khan and solicit his cooperation in the investigation of the circumstances of his entry into the United States. Despite Defendant's arguments that the agents had always considered Khan the subject of a criminal investigation, I disagree. The evidence is clear that the agents considered Khan-at least initially on March 6, 2003-both a potential witness in an underlying terrorism investigation against Defendants Nasser, Kamran, and Rashid, and the subject of the civil immigration-violation investigation. The terrorism implications of this case have since evaporated. Agent Castro acknowledged that at the time there was confusion about how and under what authority an FBI and BICE agent working in concert in a mixed civil and criminal investigation should conduct their investigation. Agent Castro testified that the agents discussed and planned their interrogation strategy before flying to California. They specifically discussed their plan to question Khan in a purely civil context concerning an immigration violation. But as I explain below, the agents knew before traveling to Petaluma that Khan was a potential subject for criminal prosecution.
At some time between 8:30 a.m. and 9:00 a.m. on March 6, Agents Castro and Godwin knocked on Khan's apartment door. When Khan answered, the agents told Khan they had run into his parked car with their car and would like to pay for the damage. This was a ruse calculated to lure Khan out of the apartment. When Khan stepped outside, Agent Godwin identified himself as a federal immigration agent, and Agent Castro either as his partner or another agent. Defendant Khan testified that the agents identified themselves as "FBI." The testimony differs, and I find the agents' testimony on this issue more credible.
Agent Godwin asked Khan if he would be willing to discuss his immigration status. Khan agreed to do so, invited the agents into his apartment, and offered them coffee. Khan woke up around the time the agents arrived, and still wore the exercise clothes in which he had slept. Shortly after answering some routine background questions, Khan told the agents he wanted to leave his apartment in case his roommate returned. Either Agent Godwin or Khan suggested the three continue their conversation in the agents' rental car. After parking the car somewhere behind Khan's apartment, they continued the conversation.
While in the car, Agent Castro sat in the front seat, and Agent Godwin sat in the back seat along with Khan. During the next 90 minutes to two hours, the agents intermittently questioned Khan. They focused on whether he was the biological son of Qayyum. In response to this inquiry, Khan insisted that Qayyum was his father. When the agents questioned his veracity, Khan became excited and upset, and stated in substance that the agents could not prove that Qayyum was not his father.
After approximately two hours, Agent Godwin telephoned his supervisors at BICE in Denver to discuss whether sufficient grounds existed for a warrantless civil immigration arrest of Khan. After doing so, and believing that he had an adequate basis for the arrest, Godwin arrested Khan for civil deportation proceedings. Castro searched Khan by placing him against the car, spreading his legs by kicking them with his feet, pulling his waistband away from his body, and lifting his shirt. These are common techniques used to search a suspect for weapons or contraband. The agents then placed handcuffs, a belly chain, and leg irons on Khan. He remained in these restraints until his arrival in Colorado. At some point, the agents informed Khan they were taking him to Denver.
The agents then transported Khan in his restraints to the Hayward Airport, approximately one to two hours' distance by car, where a 6-to-8-seat FBI airplane awaited. On the way to the airport, the agents stopped and bought lunch for themselves and Khan at a quick-mart service station. They also allowed Khan to use the bathroom, with Godwin as an escort. The agents did not remove Khan's restraints before taking him into the restroom at the service station. During the trip to the airport, the agents continued to ask Khan whether Qayyum was his biological father, stating in substance that they believed Khan was lying. Khan continued to deny the agents' accusation.
Once at the airport, the agents boarded the plane with Khan. Godwin either sat in front of Khan or behind him, and Castro sat next to Khan. After departing, Castro and Godwin testified that for the first time Castro told Khan he was an FBI agent. Castro explained to Khan:
1) Due to the United States' war on terrorism, his agency was taking all allegations of terrorism very seriously;
2) He was investigating Defendants Haroon Rashid, Irfan Kamran, and Sajjad Nasser, and he was interested in any information Khan could provide to assist that investigation;
3) He did not suspect Khan was involved in any way with terrorism;
4) He believed the other defendants may have been involved in bringing Khan illegally into the country;
5) He wanted Khan to be a witness against the others in an immigration-fraud prosecution; and
6) Khan would likely be deported to Pakistan.
After explaining these things to Khan, Castro asked him if Defendant Qayyum was his biological father....
To continue reading
Request your trial
-
United States v. Madrid-Quezada
...107 S.Ct. 515, 93 L.Ed.2d 473 (1986) ). Other districts in this Circuit consider it a heavy burden. See, e.g. , United States v. Khan , 324 F.Supp.2d 1177, 1185 (D. Colo. 2004) ("When a Miranda violation is alleged, the heavy burden of proof is upon the government to show the validity of th......
-
Davila v. United States, Civil Action Nos. 2:14–070
...United States unlawfully when his adoptive parent, a United States citizen, falsely claimed him as a child born in wedlock. 324 F.Supp.2d 1177, 1180 (D. Colo. 2004). When Khan was in his twenties, an FBI agent and an ICE agent grew suspicious of his immigration status and traveled to Petalu......
-
United States v. Pacheco-Alvarez
...to meet its burden to show probable cause that Pacheco was likely to escape before a warrant could be obtained. United States v. Khan , 324 F.Supp.2d 1177, 1187 (D. Colo. 2004).Because the ICE officers lacked "reason to believe" Pacheco posed a risk of escape before they could obtain an adm......
- U.S. v. Uddin
-
PLEADING THE FIFTH IN IMMIGRATION COURT: A REGULATORY PROPOSAL.
...at 286. (294.) Id. (295.) See. e.g.. United States v. Solano-Godines, 120 F.3d 957, 961 (9th Cir. 1997). (296.) United States v. Khan, 324 F. Supp. 2d 1177, 1191 (D. Colo. 2004) ("Here, Khan's admissions during the March 24 [deportation] hearing subjected him to the criminal liability that ......