U.S. v. Mohabir

• Citation: 624 F.2d 1140
• Decision Date: 23 June 1980
• Docket Number: No. 776,D,776
• Parties: UNITED STATES of America, Appellee, v. Lionel MOHABIR, Defendant-Appellant. ocket 79-1423.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1140

624 F.2d 1140

UNITED STATES of America, Appellee, v. Lionel MOHABIR, Defendant-Appellant.

No. 776, Docket 79-1423.

United States Court of Appeals, Second Circuit.

Argued March 3, 1980.

Decided June 23, 1980.

Benjamin Zelermyer, New York City (Poulson & Zelermyer, New York City, of counsel), for defendant-appellant.

Robert S. Litt, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, Mary Jo White, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before FEINBERG, NEWMAN and KEARSE, Circuit Judges.

FEINBERG, Circuit Judge:

This case requires us to consider under what circumstances an indicted defendant will be deemed to have waived his right to counsel at interrogation by a prosecutor. Lionel Mohabir appeals from a judgment of conviction in the United States District Court for the Southern District of New York, after a jury trial before Morris E. Lasker, J., on two counts charging conspiracy to defraud the United States by manufacturing counterfeit immigration documents, 18 U.S.C. § 371, and knowingly receiving a package containing counterfeit immigration documents and rubber stamps that had been imported illegally into the United States. 18 U.S.C. §§ 545 and 2. Appellant argues that the evidence was insufficient to support his conviction, that the judge should have suppressed a post-indictment statement obtained from appellant and that the judge's charge erroneously allowed the jury to convict appellant without finding that he possessed the requisite criminal knowledge. Since we agree that the suppression ruling was incorrect, we reverse the judgment of conviction and remand for a new trial.

I

The evidence at trial disclosed an illegal plan to enable aliens to enter the United States from Canada and to work here without complying with the immigration laws. Central to the scheme was the proposed use in combination of two immigration forms, one Canadian and the other American. The first form IMM-1000 is issued to a citizen of a Commonwealth country by Canadian immigration officials as evidence that the foreigner is a landed immigrant, the Canadian equivalent of a permanent resident of the United States. The recipient of an IMM-1000 form, properly filled out and stamped, may enter the United States from Canada without a visa as a visitor simply by presenting the IMM-1000 form at the border. The second document to be used in the scheme form I-94 may be issued by United States immigration officials to an alien here as a visitor. A visitor is not permitted to remain in this country permanently or to work here; those privileges are allowed only to aliens who are admitted as permanent residents, or immigrants. But such permission, in the form of an immigrant visa, is limited by restrictive quotas and may take years to obtain. However, once an alien is properly admitted here as a visitor, he can apply to have his status adjusted to that of a permanent resident. The same restrictive quotas govern as if the alien had applied for an immigrant visa while abroad. But an alien already here as a visitor who makes such an application is issued form I-94; upon request by the alien, the form will be stamped to indicate that he is permitted to be employed here pending adjustment of status.

Thus, improper use of the two forms could provide an easy way to circumvent immigration quotas and restrictions on aliens working in the United States. By counterfeiting IMM-1000 forms and the Canadian immigration rubber stamps used to validate them, one could produce a document allowing citizens of Commonwealth countries to enter the United States illegally without a visa, since they would appear to be landed immigrants residing in Canada. ¹ By stamping blank I-94 forms available from a variety of sources, including airlines with counterfeited American immigration stamps, one could create a document allowing such aliens to remain in this country and work here, as if they were here legally and had properly applied for permanent resident status.

There was ample evidence before the jury to support the charges that appellant and his ex-wife, co-defendant Angela Ragunandan, ² conspired to put such a scheme into effect and knowingly received a package illegally imported into the United States. From the evidence at trial the jury could justifiably have found the following: Ragunandan, a resident of Chicago, ordered several rubber stamps and copies of IMM-1000 forms in February 1979 from a Chicago printing company; the stamps included counterfeit copies both of the Canadian stamps used on IMM-1000 forms and of the American stamps used on I-94 forms. In early March, Ragunandan come to New York City, where she stayed with appellant Mohabir, her ex-husband. Shortly after her arrival, Ragunandan and appellant went to the Empire Stamp Company in New York City. Appellant showed the clerk an altered impression of a Canadian immigration stamp, consisting of a crown and a date within a rectangular border, and asked to have duplicates made of it. However, the proprietor informed the clerk that the crown could not be reproduced. The crown and the date then were crossed out, and appellant ordered three copies of the stamp's rectangular border alone. Appellant left his name and home address and personally paid the deposit for the stamps, which Ragunandan picked up several days later. Over the next several weeks, Ragunandan placed orders for other rubber stamps; appellant accompanied her on one of the occasions when she did so. The stamps so obtained apparently were cut up and reassembled to make more precise replicas of the official stamps used on IMM-1000 and I-94 forms.

At the end of March 1979, appellant and Ragunandan drove to Toronto, Canada, bringing with them the counterfeit forms and stamps. In Toronto, they stayed the night with Ragunandan's sister-in-law, Subai Ramnarain, who had not been expecting them; Mrs. Ramnarain testified that she did not know how Ragunandan and appellant spent their time in Toronto. Several hours after defendants left Toronto to return to New York, Ragunandan phoned her sister-in-law and told her that she had left a package behind in the house; Ragunandan asked Mrs. Ramnarain to mail the package to her at the address of a friend and told her to declare on the customs form that the package contained cosmetics. On April 6, a United States Customs Inspector opened the package in an attempt to assess the proper duty. The inspector discovered that the package contained counterfeit stamps and IMM-1000 forms, as well as I-94 forms; some of the forms had been partially filled out or stamped.

A "controlled delivery" of the package was then arranged. Ragunandan was sent a notice of delivery, and on April 17 she went with appellant to the post office specified in the notice. The postal clerk tried to locate the package based on the description given to him by Ragunandan; he showed the defendants several packages, in response to one of which appellant said, "No, that's not it. Would you try another one?", and indicated another parcel on the rack. The clerk was unable to locate their package, however, and defendants left. When Ragunandan returned the next day to pick up the package, she was arrested. Appellant surrendered a little over one month later. After his surrender, appellant was interrogated by an Assistant United States Attorney; during the course of his interrogation, appellant admitted having gone with Ragunandan to the stamp companies, to Canada and to the post office. He denied, however, having placed an order at the Empire Stamp Company, and denied any knowledge of the contents of the package. Appellant also claimed that he did not know that Ragunandan was engaged in any illegal activity.

Appellant does not dispute the facts recited above; he argues only that this evidence was insufficient to prove that he had knowledge either of the nature of the conspiracy or of the contents of the package. According to appellant, the government's case rested on only four pieces of evidence: the placement of the order for stamps at the Empire Stamp Company; his visit to Canada; his remark to the postal clerk; and the false exculpatory statement he made in the course of his interrogation. Appellant contends that none of these pieces of evidence supports an inference that he knew of the immigration scheme. Thus, appellant concedes that he placed an order for stamps; he denies, however, that this order can provide a basis for inferring knowledge of the "essential nature of the conspiratorial plan," see United States v. Rosenblatt, 554 F.2d 36, 39 (2d Cir. 1977), since there was no evidence at all that appellant knew that the stamp he ordered to be copied was an altered Canadian immigration stamp. Similarly, he contends that there is nothing in the record to indicate that the trip to Canada was anything but a visit to see relatives. Nor, appellant contends, does his remark at the post office indicate that he had knowledge either of the contents of the package or of the fact that it had been imported unlawfully; appellant notes that his comment was not made until after Ragunandan had described the package to the clerk. Moreover, he argues that there was no evidence that the stamps he ordered found their way into the package. Finally, appellant submits that his false exculpatory statement, even assuming it was properly admitted, shows at most evidence of consciousness of guilt, rather than of guilt itself, see United States v. Di Stefano, 555 F.2d 1094, 1104 (2d Cir. 1977); such evidence is insufficient to support a conviction, he also asserts, where the other evidence is as weak as it was here. See United States v. Johnson, 513 F.2d 819, 824 (2d Cir. 1975).

We are not persuaded by appellant's arguments. Even putting to one side the statement he made at his interrogation, which we discuss below, the evidence was sufficient to allow a jury to conclude...