U.S. v. Kiam

• Citation: 343 F.Supp.2d 398
• Decision Date: 04 November 2004
• Docket Number: No. CRIM.04-436.,CRIM.04-436.
• Parties: UNITED STATES of America, v. Long Tong KIAM.
• Court: U.S. District Court — Eastern District of Pennsylvania

343 F.Supp.2d 398

UNITED STATES of America, v. Long Tong KIAM.

No. CRIM.04-436.

United States District Court, E.D. Pennsylvania.

October 22, 2004.

As Amended November 4, 2004.

COPYRIGHT MATERIAL OMITTED

Stephen J. Britt, Donnelly & Associates, Conshohocken, PA, for Defendant.

Barry Gross, Assistant United States Attorney, Philadelphia, PA, for Plaintiff.

MEMORANDUM

DALZELL, District Judge.

Defendant Long Tong Kiam, a citizen of Singapore, seeks to suppress a confession he gave to Immigration and Customs Enforcement ("ICE") Special Agent Richard Kozak on April 27 of this year. He predicates his suppression claim on Missouri v. Seibert, ___ U.S. ___, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), the Supreme Court's June 28, 2004 opinion in which the Court held unconstitutional certain kinds of "two-round" interrogation strategies designed to sidestep Miranda.

Kiam's motion requires us to resolve two issues. First, we must determine whether Miranda applies to a custodial interrogation when officials at ports of entry to this country have the dual purpose of determining an alien's admissibility into the United States and conducting a criminal investigation. Second, assuming Miranda applies, we must consider whether Seibert mandates that we suppress Kiam's confession.

Given that these questions arise in a fact context far removed from what the Supreme Court considered in Seibert, we necessarily must analyze them at some length.

A. Factual and Procedural Background

On the weekend of April 24 and 25, 2004, Customs and Border Protection ("CBP") agents unraveled three or four nearly identical alien smuggling schemes.¹ In each, a Singaporean national, with a valid Singaporean passport, guided three or four Chinese nationals, all with fake or recycled Singaporean passports, on international flights into Philadelphia International Airport.

CBP Senior Inspector Daniel Roman is responsible for investigating criminal activities and inspecting international travelers who come to Philadelphia International Airport. He identifies himself as a law enforcement officer and carries a firearm when on duty.

On April 27, 2004, Roman orchestrated an investigative coup de maître. Reviewing the manifest of U.S. Airways Flight 893 from Frankfurt, Germany, he discovered that, like all of the flights involved in the plots the preceding weekend, Flight 893 also had four passengers, each carrying a Singaporean passport. Also, like the weekend plots, one passenger, defendant Long Tong Kiam, sat alone, while three sat together. Roman testified that this "set off alarms" in his mind when he reviewed the manifest while Flight 893 was en route to Philadelphia.

Thus, upon Flight 893's arrival at the gate at 3:14 p.m., before any passengers disembarked, CBP agents entered the plane, had airline personnel identify Kiam and the three Chinese nationals, and then "escorted"² them to a secondary detention area, isolated from public view. The agents immediately detained Kiam alone in an interrogation room.³

At about 3:35 p.m., Inspector Roman entered the room, closed the door, and began questioning Kiam. While Roman testified that the sole purpose of his interrogation was to determine Kiam's admissibility, from the outset he had a "particularized suspicion" that Kiam was an illegal alien smuggler. Roman also testified that he knew the Government would charge at least one of the smugglers from the previous weekend with the crime of alien smuggling, which it indeed did three days later. See United States v. Lam, Cr. No. 04-304 (E.D.Pa. Apr. 30, 2004).

In English, Roman asked Kiam questions relating to his alleged alien smuggling scheme for the purpose of exposing inconsistencies in his story. Roman soon caught Kiam in two lies. First, Kiam denied recently traveling to Thailand, Turkey, and Europe, while his passport — by the entry stamps on it — reflected otherwise. Second, Kiam denied knowing the three Chinese nationals, but they claimed otherwise. Confronting Kiam with these inconsistencies, Kiam, after just twenty-five minutes,⁴ admitted that he in fact did know the Chinese nationals and illegally helped them enter this country. This assistance would constitute a criminal violation of 8 U.S.C. § 1324(a)(2)(B)(ii).

Upon Kiam's admissions, Roman ended the interrogation. At around 4:00 p.m., he called the office of ICE Senior Special Agent Richard Kozak, ICE's representative to the Asian division of our United States Attorney Office's Organized Crime Strike Force. Kozak's office relayed Roman's request to Kozak, who forthwith called Roman. This 4:00 p.m. conversation was the first time that the two ever discussed Kiam.

Kozak then drove to the airport, arriving at about 4:50 p.m. He proceeded to the secondary detention area, talked with Roman, and saw Kiam and the three Chinese nationals separated from each other. He next called Mr. Stephen Wong, a Chinese translator⁵ who was in Manhattan, and requested that Wong remain available via telephone.

At around 5:10 p.m., Kozak entered the room and introduced himself to Kiam. Kozak then called Wong, who spoke on a speaker phone. Wong testified that he and Kiam then began discussing in Mandarin Chinese which Chinese dialect Kiam felt most comfortable using.⁶ Surprising Wong, Kiam emphasized that he is well-versed in Mandarin, Cantonese, Fuzhouhua, Hainanese, English, and Bahasa, the official language of Indonesia. Of this assortment, Kiam told Wong that he preferred to speak English.

Next, Kozak gave Kiam Miranda warnings. Despite Kiam's English preference, Wong methodically ensured that Kiam understood each sentence of the warnings. For instance, after Kozak read aloud each sentence, Wong asked Kiam in Mandarin whether he understood, providing additional explanation when necessary. When Kozak finished explaining these rights at 5:18 p.m., Kiam waived them, memorializing this on an ICE I-214 form.

From 5:18 to around 8:15 p.m., Kozak questioned Kiam about his alien smuggling plot.⁷ Kozak took a different interrogation approach than what Roman used. While Roman provoked admissions by confronting Kiam with inconsistencies in his story, Kozak sought to motivate Kiam to paint a comprehensive picture of his smuggling plot. Kozak succeeded. In his confession, Kiam, among other things, identified the mastermind behind the plot (a man named Lawrence); the places where he met Lawrence; the details of each conversation he had with Lawrence; the amount of his compensation; the facts surrounding his first alien smuggling plot; the contacts Kiam had with Lawrence's European underlings; the first meeting Kiam had with the Chinese nationals; the account of their actions between that first meeting and their April 27, 2004 apprehension; and the fact that Kiam suspected that his actions were illegal. Def.'s Mem., Ex. A, at 1-3.

Toward the end of the interrogation, Kozak reduced Kiam's confession to writing. Kozak reviewed it with Kiam, and allowed Kiam to amend it by adding on page three, "I truly regret the problems my trip here has caused. I hope that I am not barred from reentering the UNITED STATES in the future." Id. at 3.

Instead of barring Kiam from reentering, the United States refused to let him leave. On May 3, 2004, a Grand Jury indicted Kiam on three counts of alien smuggling, alleging violations of 8 U.S.C. § 1324(a)(2)(B)(ii). With trial scheduled to begin on November 1, 2004, Kiam filed this motion to suppress his confession. For the reasons that follow, we shall deny Kiam's motion.

B. Legal Analysis

As noted at the outset, we must resolve two issues here. First, we must decide whether Miranda applies to a custodial interrogation when customs officials have the dual purpose of determining an alien's admissibility into the United States and conducting a criminal investigation of that alien. Second, assuming Miranda applies, we must consider whether the Supreme Court's recent decision in Missouri v. Seibert, ___ U.S. ___, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), mandates that we suppress Kiam's confession.

1. Miranda's Applicability

Before June 28, 2004, to sidestep Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), many law enforcement officers used a two-round interrogation strategy. See Seibert, ___ U.S. at ___-___ & n. 2, 124 S.Ct. at 2608-09 & n. 2. In round one, the officer would interrogate the suspect, providing no Miranda warning. Id. Once this interrogation yielded a confession, in round two the officer would give the Miranda warning and cover the same ground a second time, this time hoping that the suspect's round one, unwarned statements would loosen his tongue. Id. This interrogative stratagem enabled law enforcement officers formally to satisfy Miranda, while escaping its procedural inconvenience.

Noting that "[t]he question-first tactic effectively threatens to thwart Miranda's purpose of reducing the risk that a coerced confession would be admitted," id. at 2613, on June 28, 2004, the Supreme Court held this tactic to be unconstitutional. See Seibert, ___ U.S. at ___, ___, 124 S.Ct. at 2613, 2616.⁸ Here, Kiam argues that Seibert mandates that we suppress what he calls his round two confession. For us to agree with him, we must first determine whether his round one interrogation triggered Miranda.

Law enforcement officers must provide Miranda warnings before subjecting a suspect to custodial interrogation. Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). The custodial interrogation inquiry requires courts to consider two subsidiary components: (1) custody and (2) interrogation. Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) ("It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation.").

The custody determination is the first and, often, the central inquiry: it is "the touchstone to the need for Miranda warnings." United States v....