U.S. v. Soto-Ornelas

• Decision Date: 23 December 1988
• Docket Number: D,SOTO-ORNELA,No. 87-2442,87-2442
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Toribioefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1487

863 F.2d 1487

UNITED STATES of America, Plaintiff-Appellee, v. Toribio SOTO-ORNELAS, Defendant-Appellant.

No. 87-2442.

United States Court of Appeals,

Tenth Circuit.

Dec. 23, 1988.

William P. Earley, Asst. Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

Robert E. Mydans, Asst. U.S. Atty. (William S. Price, U.S. Atty., and Ted A. Richardson, Asst. U.S. Atty., on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before BALDOCK, SETH, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

There are two issues raised in this appeal: (1) whether the district court erred in denying the motion of defendant-appellant, Toribio Soto-Ornelas, to suppress all evidence obtained following an allegedly unconstitutional interrogation and arrest; and (2) whether defendant's conviction for false representation and use of a Social Security number and false representation of United States citizenship violated his Fifth Amendment due process rights because it was inconsistent with the Immigration Reform and Control Act of 1986.

We conclude that the interrogation and arrest were lawful and that, in any event, none of the evidence introduced at defendant's trial was obtained as a result of the interrogation. Accordingly, the motion to suppress was properly denied. We also conclude that defendant's conviction was not inconsistent with the Immigration Reform and Control Act of 1986 and did not violate his Fifth Amendment right to due Defendant raises these issues by means of a direct appeal from his criminal conviction in the United States District Court for the Western District of Oklahoma. In that court, a jury found defendant guilty of false representation and use of a Social Security number and false representation of United States citizenship.

process. Therefore, we affirm the judgment of the district court.

At trial, the government established the following facts. In May 1987, an insurance administrator, Cindy Marshall, contacted Franklin Bell, an agent with the Immigration and Naturalization Service (INS). She told him that she was suspicious that a worker's compensation claimant who went by the name "Joshua Callahan" was an illegal alien. The INS sent a certified letter to the address given by Marshall asking Callahan to appear at the INS office. The INS never received a return receipt.

Bell subsequently went to the address that Marshall had provided and was informed by a neighbor that the family that had lived there had moved out a few weeks earlier. He also was informed that the family was "Spanish," that Eric Soto was the adult male, and that one of the pre-school aged children was named Joshua Callahan.

Marshall contacted Bell again and advised him that the man claiming to be Callahan would be attending a worker's compensation hearing that day at the Worker's Compensation Court in Oklahoma City, Oklahoma. Bell attended the hearing, which was captioned as a claim by Joshua Callahan. During the hearing, the worker's compensation court asked the claimant if Joshua Callahan was his true name. The claimant, through an interpreter, told the court that his real name was Toribio Soto-Ornelas. At some point in the hearing, opposing counsel asked Soto-Ornelas about his Social Security number. Soto-Ornelas' counsel objected to the question, claiming that the answer might tend to incriminate his client.

After the hearing, and after the attorney who had represented Soto-Ornelas at the worker's compensation hearing had left, Bell approached Soto-Ornelas. Bell identified himself as an INS agent, and asked Soto-Ornelas what country he was a citizen of and if he had any documentation supporting his presence in the United States. Soto-Ornelas told Bell that he was a citizen of Mexico and that he did not have any documentation allowing him to be in the United States. After repeating the questions to Soto-Ornelas in a conference room and receiving the same answers, Bell placed him under arrest. ¹ Shortly thereafter, the attorney who had represented Soto-Ornelas in the worker's compensation hearing returned and asserted that he represented Soto-Ornelas in immigration matters as well. Bell conducted no further questioning of Soto-Ornelas at that time.

Defendant's statements made during the initial interrogation were not introduced against him at trial. In fact, he was not charged with illegal immigration. Rather, he was charged only with illegal representation and use of a social security number and illegal representation of United States citizenship. Additionally, there was no finding below nor is there any indication in the record on appeal that any evidence introduced against defendant at the trial was acquired as a result of information obtained during the interrogation of defendant.

Before trial, defendant moved to suppress all evidence obtained during and after his arrest, claiming that Bell's interrogation violated his Sixth Amendment right to an attorney because it was not conducted in the presence of his worker's compensation attorney, that the interrogation was contrary to INS guidelines, and that his initial arrest was without probable cause. Defendant also moved to dismiss his indictment, claiming that it violated his right to due process because it was unfairly inconsistent with the Immigration Reform and Defendant was convicted by jury of all counts and was sentenced to two years probation and a fifty dollar fine on each count. He appeals from that conviction and sentence.

Control Act of 1986. The district court denied both motions.

I. SUPPRESSION OF EVIDENCE

Defendant contends that all evidence obtained during and subsequent to his arrest should have been excluded as "fruit of the poisonous tree" under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In support of this contention, defendant argues that Bell's interrogation of him while his attorney was not present improperly circumvented his Sixth Amendment right to counsel and was contrary to INS guidelines. He claims that without the allegedly improper interrogation, Bell lacked probable cause to arrest him, and therefore all evidence obtained subsequent to the arrest should have been excluded.

The standard of review on an appeal of the denial of a motion to suppress evidence is that the reviewing court must accept the trial court's findings of fact unless clearly erroneous and must consider the evidence in the light most favorable to the government. United States v. Smith, 797 F.2d 836, 840 (10th Cir.1986); United States v. Rios, 611 F.2d 1335, 1344 (10th Cir.1979).

In challenging the interrogation, defendant relies primarily on Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). In that case, the Supreme Court held that:

[K]nowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent.

Id. at 176, 106 S.Ct. at 487. Defendant argues that Bell waited until defendant was separated from his attorney before interrogating him, thereby circumventing his right to have his attorney present.

In Moulton, the Court found that introduction of statements made by a defendant, after he had been indicted, to a codefendant who was a secret government informant was improper. In contrast, the defendant here had not been placed in custody and no formal charges or proceedings had been initiated against him when he was questioned by Bell. The Sixth Amendment right to counsel attaches only "after the initiation of formal charges." Moran v. Burbine, 475 U.S. 412, 431, 106 S.Ct. 1135, 1146, 89 L.Ed.2d 410 (1986). Therefore, the interrogation in the instant case could not have violated defendant's Sixth Amendment right to counsel because that right had not yet attached.

Defendant also argues that Bell's interrogation was unlawful because Bell did not comply with INS guidelines. INS agents are authorized by federal statute "to interrogate any alien or person believed to be an alien as to his right to be or remain in the United States." 8 U.S.C. Sec. 1357(a)(1). The government concedes that INS policy guidelines provide that an INS agent generally should notify attorneys of an intention to interview their clients. In this case, the government relies on an exception to that general policy which provides that the attorney need not be notified where the interview is unrelated to the matter for which the attorney represents the individual. In support of this exception, Bell testified that he believed that defendant's attorney at the worker's compensation hearing did not represent defendant on immigration matters. Also, at oral argument before this Court, defendant's counsel conceded that there is nothing in the record showing that defendant had, in fact, engaged any attorney for immigration purposes...