United States v. Carriles

• Decision Date: 01 November 2010
• Docket Number: No. EP–07–CR–087–KC.,EP–07–CR–087–KC.
• Citation: 832 F.Supp.2d 699,83 Fed. R. Evid. Serv. 1185
• Parties: UNITED STATES of America, Plaintiff, v. Luis Posada CARRILES, a/k/a “Ramon Medina” a/k/a “LOBO” a/k/a “SOLO,” Defendant.
• Court: U.S. District Court — Western District of Texas

832 F.Supp.2d 699

83 Fed. R. Evid. Serv. 1185

UNITED STATES of America, Plaintiff,

v.Luis Posada CARRILES, a/k/a “Ramon Medina” a/k/a “LOBO” a/k/a “SOLO,” Defendant.

No. EP–07–CR–087–KC.

United States District Court,

W.D. Texas,

El Paso Division.

Nov. 1, 2010.

Arturo V. Hernandez, Arturo V. Hernandez P.A., Miami, FL, Felipe D.J. Millan, Felipe D.J. Millan, P.C., El Paso, TX, Rhonda Anne Anderson, Rhonda A. Anderson, P.A., Coral Gables, FL, for Defendant.

ORDER REGARDING REDACTION OF NATURALIZATION INTERVIEW TAPES AND TRANSCRIPTS

KATHLEEN CARDONE, District Judge.

On this day, the Court considered the government's “Submission and Motion Regarding Recordings and Transcripts of Defendant's Naturalization Interview and Removal Proceedings” (“Government's Motion”) and “Submission of the United States Regarding Fifth Amendment Issues Raised in Defendant's Motions to Redact” (“Government's Submission”). The Court also considered Defendant's “Under Seal Motion in Limine to Redact Naturalization Interview Tapes and Transcripts” (“Defendant's Motion”) and “Under Seal Memorandum of Law Regarding the Admissibility of the Defendant's Assertion of His Fifth Amendment Rights During Immigration Proceedings” (“Defendant's Memorandum”).¹ For the reasons set forth herein, the government's Motion is DENIED, and Defendant's Motion is GRANTED in part and TAKEN UNDER ADVISEMENT in part.

I. BACKGROUND

Defendant is presently before this Court based on an eleven-count federal grand jury indictment charging him with perjury, obstruction of proceedings before departments and agencies, naturalization fraud, and making a false statement in a naturalization proceeding. Superseding Indictment, ECF No. 133. These charges stem from statements Defendant made during removal proceedings that were commenced against him on May 18, 2005, as well as statements Defendant made during an interview on April 25 and 26, 2006, with a government official regarding Defendant's application for naturalization. Id. at 2–3.

Defendant moved on January 20, 2010, 2010 WL 300357, to redact the tapes and transcripts of the naturalization interview so as to exclude portions of them from evidence based on the Fifth Amendment to the United States Constitution and various provisions of the Federal Rules of Evidence.² Def.'s Mot. 1. On January 30, 2010, the Court denied Defendant's request, ruling that the request was premature because the government had not yet moved to admit the transcripts in their entirety. Order, ECF No. 357; see Def.'s Mot., ECF No. 320. On February 3, 2010, in response to a request from the Court, the government notified the Court that it did intend to admit the transcripts of the naturalization interview in their entirety. Gov't's Mot. 2, ECF No. 378. The government asserted that both those portions of the transcripts in which Defendant allegedly lied and those portions in which he allegedly responded truthfully were relevant to Defendant's “comprehension and appreciation of the nature of the proceedings,” and would “enable the jury to distinguish [Defendant's] lawful conduct from his unlawful conduct.” Id. at 3. However, in the naturalization interview Defendant did not substantively answer all the questions posed to him; at times he invoked his Fifth Amendment privilege against self-incrimination. See, e.g., Def.'s Mot. Ex. A (“Transcript”), at 09–1189 (“Mr. Posada: ‘I take, I take the Fifth Amendment ...’ ”).³ Because of this, the Court ordered the parties to submit briefing on the issue of whether the government could comment on or use as evidence Defendant's invocations of the Fifth Amendment.

In response to that Order, the government argues that it may lawfully refer to any or all of the invocations of the Fifth Amendment in the transcripts of the naturalization interview. Gov't's Submission 7, ECF No. 414. Defendant, in turn, argues that admission of any references to such invocations would violate Defendant's right to a fair trial. Def.'s Mem. 5, ECF No. 408.

II. DISCUSSIONA. Legal Standard

The Fifth Amendment to the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. This right applies not just in criminal proceedings, but also allows a witness to refuse to answer questions in “any other proceeding, civil or criminal, formal or informal, investigatory or adjudicatory, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). This type of protection invoked in an earlier civil proceeding may be characterized as the evidentiary aspect of the Fifth Amendment's protection against self-incrimination, while the “core” of the protection is the guarantee against the introduction of compelled testimony in a criminal trial. Chavez v. Martinez, 538 U.S. 760, 777, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (Souter, J., concurring) (plurality opinion).

The trier of fact in a civil proceeding may draw adverse inferences from a party's refusal to answer questions without infringing on the Fifth Amendment's protections. United States v. Solano–Godines, 120 F.3d 957, 962 (9th Cir.1997). Naturalization interviews are civil actions for the purposes of the privilege against self-incrimination, because they are “civil adjudicatory process[es] that, by regulation, call[ ] for both an investigation of the applicant and an interview,” United States v. Posada Carriles, 541 F.3d 344, 357 (5th Cir.2008), and so fall squarely into the broad sweep of the holding in Lefkowitz. See Lefkowitz, 414 U.S. at 77, 94 S.Ct. 316. Consequently, “there is no rule of law which prohibits officers charged with the administration of the immigration law from drawing an inference from the silence of one who is called upon to speak.” INS v. Lopez–Mendoza, 468 U.S. 1032, 1043, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (quoting United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153–54, 44 S.Ct. 54, 68 L.Ed. 221 (1923)).

In a criminal proceeding, by contrast, any comment on or adverse inference drawn from a defendant's assertion of his or her right not to testify violates the Fifth Amendment. Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); United States v. Johnston, 127 F.3d 380, 396 (5th Cir.1997). This is true whether it is a prosecutor, judge, or witness making the comment, United States v. Rocha, 916 F.2d 219, 232 (5th Cir.1990), and whether or not the comment is direct or indirect. Johnston, 127 F.3d at 396. A statement constitutes an “impermissible comment[ ] on a defendant's right not to testify if the prosecutor's manifest intent was to comment on the defendant's silence or if the character of the remark was such that the jury would naturally and necessarily construe it as a comment on the defendant's silence.” Id. The right not to testify at trial is analogous to the right to remain silent after arrest, so the tests for comment are the same. United States v. Mora, 845 F.2d 233, 235 (10th Cir.1988).

B. Exclusion Based on the Fifth Amendment

The “core” of the guarantee against self-incrimination is the exclusion of compelled, self-incriminating testimony. Chavez, 538 U.S. at 777, 123 S.Ct. 1994;see also id. at 767, 123 S.Ct. 1994 (plurality opinion) (distinguishing between impairing the constitutional right by gathering evidence improperly and violating the right by introducing that evidence at a criminal trial). Because comment on or inference drawn from an invocation of the right to remain silent would itself be a form of compulsion to testify, Griffin, 380 U.S. at 614, 85 S.Ct. 1229, “[p]rosecutors are prohibited from commenting directly or indirectly on a defendant's failure to testify in a criminal case.” Johnston, 127 F.3d at 396. The government concedes as much at the outset when it notes that “it would be improper to make a general comment about a defendant's decision not to testify against himself.” Gov't's Submission 3–4. This concession is enough to dispose of this issue, as the general rule prohibiting comment on a defendant's exercise of the privilege applies in this case.

In applying this general rule there is no reason to distinguish between invocations of the privilege in prior proceedings and those made during a criminal trial, because the form of compulsion would be the same. To make such a distinction would leave little substance in the Supreme Court's holding that the protections of the self-incrimination clause can be invoked in “any other proceeding, civil or criminal, formal or informal, investigatory or adjudicatory, where the answers might incriminate [a defendant] in future criminal proceedings,” as an exercise of the privilege in an earlier civil proceeding would provide considerably less protection against incrimination in a future criminal trial than an exercise in that later criminal trial. See Lefkowitz, 414 U.S. at 77, 94 S.Ct. 316. Furthermore, it would be incongruous to claim that the prosecution can comment on invocations of the privilege in a criminal trial so long as that trial is separate from the civil proceeding in which the privilege had been invoked, in light of the finding in Chavez that it is the use of compelled testimony in a criminal trial that violates the very core of the Fifth Amendment. See Chavez, 538 U.S. at 777, 123 S.Ct. 1994. Moreover, such a reading of the Johnston rule would be a drastic limitation of a right the courts scrupulously protect. See Johnston, 127 F.3d at 398. In the ringing words of the Fifth Circuit, “Our system of justice rigorously guards the right of an accused to remain silent and not to testify. Prosecutors are obligated never to attempt to sway a jury in any way because of the exercise of an accused of that right.” Id. This court declines to find a limitation to the rule against comment where the government has not cited and this Court has not discovered any case law to indicate...