U.S. v. Mahmood

• Decision Date: 03 February 2006
• Docket Number: No. 05 CR 30056 MAP.,05 CR 30056 MAP.
• Parties: UNITED STATES of America v. Asif MAHMOOD, Defendant
• Court: U.S. District Court — District of Massachusetts

415 F.Supp.2d 13

UNITED STATES of America v. Asif MAHMOOD, Defendant

No. 05 CR 30056 MAP.

United States District Court, D. Massachusetts.

February 3, 2006.

Joseph A. Franco, Law Offices of Joseph A. Franco, West Springfield, MA, for Asif Mahmood, Defendant.

Kevin O'Regan, United States Attorney's Office, Springfield, MA, for USA, Plaintiff.

MEMORANDUM REGARDING DEFENDANT'S MOTION TO SUPPRESS (Docket No. 15)

PONSOR, District Judge.

I. INTRODUCTION

Defendant, Asif Mahmood, has been charged in a one-count indictment with engaging in marriage fraud to evade the immigration laws. On October 6, 2005, he moved to suppress oral and written statements he made to Immigration and Customs Enforcement ("ICE") agents investigating the alleged offense, on the ground that his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were violated.

On December 1, 2005, the court heard testimony bearing on the motion from three witnesses. After considering this evidence, in addition to supplemental memoranda filed by the Government and Defendant, the court allowed the motion in an order dated January 26, 2006. This memorandum will set forth the reasons supporting that ruling.

II. FINDINGS

The facts, based upon the credible evidence presented at the hearing, are as follows.¹ On the morning of April 19, 2005, Special Agents Stephen Back, Patrick McDonald, and Mary Geha arrived at Defendant's residence at 748 Alden Street in Springfield, Massachusetts for the purpose of investigating a report of suspicious immigration-related activity. Specifically, a woman purporting to be Defendant's exgirlfriend had informed the FBI that Defendant, a recent immigrant from Pakistan, had offered her money to marry him. Defendant, in an application to change his immigration status, had represented himself to be married, and the agents wanted to know whether this marriage, to a woman named Miriam Santos, was legitimate.

Upon their arrival at the Alden Street residence, Agents Back and McDonald went to the front door. The agents had deliberately refrained from contacting Defendant by phone before their arrival. Mindful that illegal aliens often flee at the sight of law enforcement officials, Agent Geha secured the back. All three agents were armed but did not brandish their weapons.

At approximately 11:25 a.m., Agent Back began knocking loudly on Defendant's front door. After two or three minutes, Defendant, who normally worked evening hours and had been sleeping,² opened the door.

After asking Defendant to identify himself, Agents Back and McDonald displayed their badges and asked if they could come in. When Defendant offered no objection, the two agents entered the residence and, without asking Defendant's permission, conducted a "protective sweep" of the premises. The agents ordered Defendant to remain in the living room during the sweep, within view at all times of at least one agent.

Satisfied that Defendant was alone, Agent Back returned to the living room and proceeded to ask Defendant a series of questions. Agent Back did not inform Defendant that he was free to decline to provide any answers. Nor did he advise Defendant that he could terminate the interrogation at his discretion.

Despite Defendant's obvious foreign accent, the agents did not ask Defendant if he would prefer to speak with them via an interpreter. In fact, as Defendant credibly testified at the hearing, his grasp of the language was tentative, and he often did not understand the questions put to him.³ Whenever Defendant requested that agents slow down or repeat themselves, they became visibly annoyed and harsh in their tone. Having never encountered law enforcement officials from this country, Defendant was unaware that he had the right to remain silent, to seek the advice of an attorney, or to ask the agents to leave.

At the onset of the interrogation, Agent Back asked Defendant if his wife lived with him. When Defendant replied that she did, Agent Back inquired as to the whereabouts of her clothes. Defendant paused, then said that they might be at the cleaners. In response, Agent Back stated that he did not believe Defendant was telling the truth.

At this point, the two agents and Defendant sat down in the 12' × 15' room with Agent Back choosing a seat close enough to Defendant to permit him periodically to place his hand on Defendant's shoulder to, as he termed it, "put him at ease."

Agent Back stressed the importance of telling the truth to federal agents by informing Defendant that it was a crime not to do so. The agents did not specifically state that Defendant was under arrest or that they intended to arrest him. Nevertheless, Defendant reasonably concluded that he was not free to leave or to ask the agents to leave. Shortly thereafter, Agent Gehu entered the residence unannounced and, without Defendant's consent, began participating in the interrogation.

As the questioning continued, Defendant's telephone began to ring. This did not prompt the agents to suggest that they take a break, and they gave no indication that it would be permissible for Defendant to answer the telephone. On the contrary, when Defendant turned to approach the phone, Agent Gehu stood up and placed herself in front of it. Interpreting this behavior as a prohibition, Defendant abandoned his effort to reach the phone.

After more than an hour of questioning, Defendant stated that Miriam Santos did not live with him at the Alden Street residence and that he had paid her to marry him. When Defendant agreed to provide a written statement to that effect, Agent McDonald drafted the statement and read it to Defendant. Agent McDonald did not provide Defendant with a copy to follow as he read the statement to him. Before Defendant signed the statement, the agents read him the pre-printed Miranda warnings that appeared in English on the form.

In the course of the ninety-five minute interrogation, the agents did not ask Defendant if he cared to use the bathroom, and Defendant did not feel he was entitled to do so. Defendant was anxious and concluded that he was obliged to be compliant. Indeed, Agent Back described Defendant as meek, mild, and very soft-spoken.

III. DISCUSSION

Defendant asserts that any statements he made during the April 19, 2005 interrogation should be suppressed because ICE agents did not advise him of his rights pursuant to Miranda. In response, the Government argues that Miranda warnings were not required since Defendant was not in custody when the statements in question were made.

The Fifth Amendment provides all persons with the privilege against compelled self-incrimination. To safeguard this right, courts have consistently held that "Miranda warnings must be given before a suspect is subjected to custodial interrogation." United States v. Ventura, 85 F.3d 708, 710 (1st Cir.1996) (citing United States v. Taylor, 985 F.2d 3, 7 (1st Cir. 1993); see also Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)) (stating that when law enforcement officials "take a suspect into custody and then ask him questions without informing him of [his rights pursuant to Miranda], his responses cannot be introduced into evidence to establish his guilt").

In Miranda, the Court defined "custodial interrogation" as "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." 384 U.S. at 444, 86 S.Ct. 1602. Subsequent Courts have held that "custody must be determined based on how a reasonable person in the suspect's situation would perceive his circumstances." Yarborough v. Alvarado, 541 U.S. 652, 662, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (citing Berkemer, 468 U.S. at 442, 104 S.Ct. 3138; see also Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)) ("[T]he initial determination of custody depends on the objective circumstances of the interrogation ....").

Ultimately, the question is whether there was a "`restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)). In making this determination, a court may consider numerous, case-specific factors, including "whether the suspect was questioned in familiar or at least neutral surroundings, the number of law enforcement officers present at the scene, the degree of physical restraint placed upon the suspect, and the duration and character of the interrogation." United States v. Nishnianidze, 342 F.3d 6, 13 (1st Cir.2003), cert. denied, 540 U.S. 1132, 124 S.Ct. 1107, 157 L.Ed.2d 936 (2004) (quoting United States v. Masse, 816 F.2d 805, 809 (1st Cir.1987)); see also Ventura, 85 F.3d at 711 n. 3 (noting that the relevant factors enumerated in Masse are "not an exhaustive list").

Although "determining what constitutes custody can be a `slippery' task," Ventura, 85 F.3d at 711 (citing Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)), this case does not present a close call. On the contrary, it is quite clear that ICE agents interrogated⁴ Defendant while restraining his freedom of movement to a degree consistent with a formal arrest.

First, although the interview took place in Defendant's home, "a deprivation of freedom can as readily take place [there] as at a police station." United States v. Goodridge, 945 F.Supp. 359, 365 (D.Mass. 1996) (citing Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969)). Here, Defendant was by himself when the agents arrived and remained isolated during the duration of the encounter. Cf. United States v. Lanni, 951 F.2d 440, 442 (1st Cir.1991) (fact that interview was conducted "in defendant's home, with her husband, child, and pets nearby" suggested defendant was not restrained). More...