U.S. v. Torres-Lona

• Decision Date: 03 July 2007
• Docket Number: No. 06-4013.,06-4013.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel TORRES-LONA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

491 F.3d 750

UNITED STATES of America, Plaintiff-Appellee, v. Daniel TORRES-LONA, Defendant-Appellant.

No. 06-4013.

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2007.

Filed: July 3, 2007.

Rehearing Denied August 10, 2007.

Counsel who presented argument on behalf of the appellant was Mark C. Meyer of Cedar Rapids, IA.

Counsel who presented argument on behalf of the appellee was Stephanie M. Rose, AUSA, Cedar Rapids, IA.

Before MURPHY, HANSEN, and COLLOTON, Circuit Judges.

MURPHY, Circuit Judge.

Daniel Torres-Lona entered a conditional plea of guilty to one count of making a materially false statement to federal immigration officers in violation of 18 U.S.C. § 1001. The district court¹ sentenced him to 171 days of time served. Torres-Lona appeals his conviction, arguing that the false statement that formed the basis of his indictment should have been suppressed. We affirm.

I.

In the spring of 2006 officers from the Cedar Rapids Police Department (CRPD) contacted Immigration and Customs Enforcement (ICE) to report that they had discovered evidence of gang activity in the course of investigating a possible burglary at the Cambridge Apartment Complex (complex). Several people interviewed during the investigation had what appeared to be gang related tattoos, and the number 13, a tag associated with Mexican gangs, had been carved into one of the walls of the complex. The CRPD also reported seeing blood in one of the apartments, which the officers believed to have resulted from a gang initiation rite.

Several ICE agents began working with the CRPD to investigate further. Among them was Special Agent Chris Cantrell who had worked as an immigration officer for 11 years including five years as a border patrol agent. He was also trained in investigating ethnic gangs and in interviewing undocumented aliens and other foreign nationals. ICE agents worked with the landlord of the complex to obtain documents provided by tenants when they first rented their apartments. Some of these documents proved to be counterfeit. ICE agents also learned that one of the tenants interviewed as part of the burglary investigation had falsely claimed United States citizenship.

ICE agents obtained federal search warrants to search various apartments in the complex based on probable cause that tenants there had possessed and used counterfeit immigration and social security documents. Agents executed search warrants at three apartments and obtained consent to search two additional apartments. Six undocumented aliens from Mexico were identified and arrested during these searches. ICE agents also found numerous counterfeit social security and immigration documents which did not match the aliens who had been arrested. Most of the seized documents appeared to belong to Hispanic males in their teens or mid 20s. During the searches agent Cantrell interviewed an unidentified man who admitted to calling several of the Hispanic residents at the complex to warn them about the presence of immigration officials.

Special agents Cantrell and Eric Spaulding returned to the complex on May 24 to search for individuals who matched the fraudulent documents seized the day before. They were also looking for fresh signs of gang activity. When they arrived at the complex they noticed new graffiti in the parking lot which read, "Sur 13, fuck you." "Sur 13" is a gang tag identified with the Surenos gang.

The agents spotted Torres-Lona, a Hispanic male in his early twenties, walking nearby. He was wearing baggy pants, a large cubic zirconium earring, a brown bandana, and a cocked flatbilled cap.² Based on his experience, agent Cantrell regarded Torres-Lona's clothing and accessories as consistent with gang attire. The agents initially left the complex without interviewing him, but they decided to return in light of his attire and the appearance of new gang graffiti at the complex. Agents found Torres-Lona talking to the same man who the day before had warned residents about the agents' presence. When they asked to speak with Torres-Lona, he came over immediately. The agents asked him where he was born, and Torres-Lona responded that he was born in Mexico. Agent Cantrell then asked if he had any immigration documents. He replied that he did not. At that point the agents took him into custody.

One of the ICE agents searched Torres-Lona and located his wallet. Inside the wallet the agents found what appeared to be a valid social security card bearing the name "Daniel Torres." The final four digits of the number on the card were 5736, and the card was not signed. Agent Cantrell testified at a suppression hearing that an illegal alien could have a valid social security card if he had been lawfully admitted into the United States and then deported or if he had had some previous immigration encounter. He also testified that the fact that the card was unsigned might indicate that it belonged to a child or that appellant had obtained it as a child and was not aware of his own immigration status. Agent Cantrell decided to do a further investigation into Torres-Lona's immigration status.

Agent Cantrell asked Torres-Lona if the social security card belonged to him. Cantrell did not give a Miranda warning before asking the question, and he testified at the suppression hearing that ICE agents generally do not administer such a warning when an illegal alien is being processed administratively rather than criminally. Torres-Lona responded that the card belonged to him and was valid. Cantrell then asked him whether he was employed. Torres-Lona said that he had been working through Sedona Staffing, an employment agency located several blocks from the complex. He claimed to have been employed under the name Daniel Torres. The questions Cantrell asked were part of a series of questions found on Form I-213 that ICE agents use to process suspected illegal aliens.

Before taking Torres-Lona to the ICE office, the agents drove him to the nearby office of Sedona Staffing to retrieve additional documents that might help verify his immigration status and indicate how he should be processed. The agents hoped to find a document containing an alien registration number. Agent Cantrell went into the office first and asked a staff member there whether Daniel Torres had ever worked for Sedona Staffing. She could not find any employee under that name or under the social security number ending in 5736 which appeared on the card in appellant's wallet. Cantrell then asked agent Spaulding to bring Torres-Lona into the office. The staff member immediately recognized him and said that he had last worked for Sedona Staffing in 2003. She was still unable to locate his employee file using the name Daniel Torres and the social security number ending in 5736.

The agents then drove Torres-Lona to the ICE office, asking him more questions on the way about his work at Sedona Staffing. During this exchange, agent Cantrell told Torres-Lona that he thought he was not being truthful and that there were penalties for giving false information to federal law enforcement officers. According to Cantrell's testimony at the suppression hearing, it was at this point that he first thought that Torres-Lona might be charged with a crime.

Upon arrival at the ICE office, the agents placed Torres-Lona in the administrative processing area. Agent Cantrell advised appellant of his Miranda rights in Spanish and gave him a waiver form containing a Spanish version of the Miranda warning. Torres-Lona signed the waiver form. He then asked Cantrell how much time he would serve if he had lied, and Cantrell explained that this was a decision for a judge to make. Torres-Lona then admitted that he had lied previously about his employment with Sedona Staffing. He stated that he had been employed using the social security number on the card found in his wallet, but that he had used the name "Manuel Torres" rather than "Daniel Torres."

Agent Cantrell attempted to verify this new information. The employee at Sedona Staffing was able to locate Torres-Lona's file under the name "Manuel Torres," but she informed Cantrell that the social security number the agency had on file for him ended in 5365. This was not the same number that appeared on the card found in Torres-Lona's wallet or that he claimed to have used to obtain employment. When confronted with this information, Torres-Lona admitted he had purchased a counterfeit social security card and counterfeit resident card in 2003 in order to be able to obtain work.³

Torres-Lona was charged on May 25, 2006 with making a material false statement to immigration officers in violation of 18 U.S.C. § 1001. The false statement charged in the indictment was his claim that he "had previously worked at a Cedar Rapids business utilizing his assigned Social Security number, when in truth and fact, the defendant knew he had worked at the Cedar Rapids business by utilizing a fraudulent Social Security number."

Torres-Lona filed a motion to suppress the false statement charged in his indictment and other statements to the ICE agents as well as the social security card seized from his wallet. He argued that his arrest and the seizure of his wallet and its contents violated the Fourth Amendment and that his false statements were inadmissible as fruits of this illegal seizure. He also argued that his statements were inadmissible under the Fifth Amendment because the agents had failed to give him a Miranda warning before they initiated questioning and because any subsequent warning was ineffective in informing him of his rights.

After the magistrate judge recommended denial of the motion, Torres-Lona entered a conditional guilty plea on August 11, 2006. On October 23 the district court overruled the magistrate judge's recommendation in part and granted appellant's motion to suppress the evidence. The United States moved for reconsideration, and an additional hearing was held....