United States v. Gorayska

• Decision Date: 17 December 1979
• Docket Number: No. S 79 Cr. 733.,S 79 Cr. 733.
• Citation: 482 F. Supp. 576
• Parties: UNITED STATES of America v. Hanna GORAYSKA, Danuta Bebnowska, Zygmunt Sarkowicz, Grazyna Sobota, and Maria Goszler, Defendants.
• Court: U.S. District Court — Southern District of New York

482 F. Supp. 576

UNITED STATES of America v. Hanna GORAYSKA, Danuta Bebnowska, Zygmunt Sarkowicz, Grazyna Sobota, and Maria Goszler, Defendants.

No. S 79 Cr. 733.

United States District Court, S. D. New York.

December 17, 1979.

Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, New York City (Charles M. Carberry, Asst. U. S. Atty., New York City, of counsel), for the United States.

Fine & Stieglitz, New York City (Charles J. Fine, New York City, of counsel), for defendant Sobota.

Daniel Riesel, New York City, for defendant Gorayska.

MEMORANDUM AND ORDER

CANNELLA, District Judge:

Motion by defendant Grazyna Sobota to suppress a social security card in the name of Stanislawa Sobota, seized from her apartment on May 30, 1979, is granted.

Defendant's motion, to suppress statements made by her on May 30, 1979, is denied.

FACTS

This Court conducted a hearing on defendant's motions on November 28, 1979.¹ The Government stipulated that certain documents were seized from defendant Sobota on May 30, 1979, and further stipulated that on the same day a signed statement was taken from her while she was under administrative arrest at the offices of the United States Immigration and Naturalization Services "INS", located at 26 Federal Plaza, New York City. The burden of proof, therefore, shifted to the Government to justify the seizures and the taking of the statement at the INS offices.

Three INS criminal investigators, a special agent with the Department of Health, Education and Welfare "HEW", and an INS interpreter testified for the Government. What follows is their collective version of the seizure of evidence and the defendant's arrest on May 30, 1979.

On May 23, 1979, during an interview with three undocumented aliens,² INS Agent Kiernan and HEW Agent Lane learned that the defendant furnished social security cards to undocumented aliens from Poland, to facilitate their illegally obtaining employment in this country. Between May 23 and May 30, the agents made no attempt to secure either a search or an arrest warrant.

On May 30, 1979, at approximately 7:30 a. m., Agents Kiernan and Lane went to the defendant's apartment at 78 North 7th Street, Brooklyn, New York, in an attempt to locate and apprehend the defendant as an undocumented alien. The agents observed the defendant leaving the apartment, and stopped her on the street. The defendant acknowledged that she was Stella Sobota, and that she had entered this country with a tourist visa and was employed at the Richard Schmidt Company in Manhattan. When the agents asked to see her passport, she indicated that it was back in her apartment, to which they then proceeded. The agents testified that defendant let them into her apartment where they found the defendant's brother, Wieslaw Sobota, in the kitchen. Since Wieslaw did not speak English, the agents questioned him with the aid of the defendant, who acted as an interpreter.

After briefly questioning Wieslaw about his immigration status, Agent Kiernan again asked to see defendant's passport. Defendant led him to a small room off the kitchen and began looking into a dresser drawer. When Agent Kiernan moved closer to look into the drawer, the defendant slammed it shut. The agent then reopened the drawer to see what she was trying to conceal, and removed stacks of letters. The agent continued to open other drawers, which the defendant indicated she wished to open, and removed more documents, but he did not find the passport. Furthermore, Agent Kiernan looked under beds and in closets for other undocumented aliens. The search lasted approximately one-half hour. Defendant then advised him that her passport was at the Polish Consulate. Agent Kiernan then asked the defendant for any identification, and the defendant produced a social security card in the name of Grazyna Sobota.

Both Agents Kiernan and Lane testified that a second social security card in the name of Stanislawa Sobota, the defendant's mother, was seized on May 30, but neither could recall where or when it was found. Agent Kiernan speculated that the card was probably found among the letters that were seized, or in a later search of the defendant's pocketbook. After the search was concluded, both the defendant and her brother were placed under arrest and taken to the INS office at 26 Federal Plaza, where they were then separated.

Defendant's interrogation began at approximately 9:00 a. m. and ended by 1:00 p. m., at which time the defendant was free to leave. Initially, Agent Lane, an INS interpreter and INS Agents Simon and Henderson were present in the interview room. The interpreter read the defendant her rights in Polish, and the defendant read and signed a waiver of rights form which had been translated into Polish. When the questioning began, the defendant began answering in English. The defendant did not ask for an attorney or seek to stop the questioning at any time. After a few minutes, the interpreter went to the next room where the defendant's brother was being interrogated. Defendant never requested the aid of the interpreter although one was available in the adjoining room. Agent Lane left the room approximately an hour later.

Defendant's interrogation was conducted in English, primarily by Agents Simon and Henderson. After the defendant was advised of her rights, she was informed that she was subject to deportation proceedings since she had violated the conditions of her visa by obtaining employment. The agents also informed her that they were conducting a criminal investigation of a scheme to provide social security cards to undocumented aliens. The agents advised the defendant that they wanted her to cooperate, and that in the event she supplied certain information, she would be able to remain in the United States with authorization to work for the period of time required to complete the investigation. Transcript of Suppression Hearing at 124, United States v. Sobota, 79 Cr. 733 (Nov. 28, 1979) hereinafter cited as "Tr.".

The agents told the defendant that they had three options. They said that if she refused to cooperate by supplying useful information, they could recommend that she be detained, in which case her deportation hearing would be held immediately. Alternatively, they could recommend that she be released on a bond, in which case her deportation hearing would be held in approximately two weeks, depending on the condition of the INS docket. The agents then posed a third option. They told the defendant that if she cooperated she would be released on her own recognizance, given an authorization to work, and that the INS would issue an order to show cause why she should not be deported returnable in 60 days, at which time that return date could be extended by the INS until the completion of the criminal investigation. The agents told the defendant that they would have no part in the determination of whether she would eventually be deported or given a voluntary departure, and that an immigration judge would have to make that decision.

Upon hearing these options, the defendant indicated that she wished to remain in the United States and would cooperate. She was then questioned concerning her immigration status and her knowledge of those involved in the alleged social security fraud. Agent Simon prepared an affidavit during the questioning which consisted of a summary of the defendant's answers. The questioning lasted approximately two hours. The period does not include two breaks,³ the time it took to read the written statement to her, or the period when she was fingerprinted and photographed. The defendant indicated she understood the affidavit; she initialed corrections and signed the last page. Tr. at 91. The defendant also prepared a list of names of aliens with tourist visas who were working in this country.

At the conclusion of the interview, the agents gave the defendant an order to show cause returnable in 60 days, a new social security card with her name and old social security number, a written authorization to work, and an INS telephone number which she was to call each week to report any change in her employment or address, or any additional information she might have. The agents told her not to discuss the investigation, but said that she could use the order to show cause to explain why she had been at the INS office.

The defendant and her brother⁴ described the encounter quite differently. The defendant testified that she was stopped outside her apartment by Agents Kiernan and Lane. Agent Kiernan identified himself as an INS agent. He asked her about her status in this country and whether she lived alone. She said she lived alone, and at that point Agent Kiernan began screaming "Don't lie to us," and forced the defendant to take them to her apartment. When the defendant's brother opened the door slightly, Kiernan pushed the door and her brother against the wall, and proceeded into the apartment. According to the defendant, it was not until they reached the apartment and the agents had questioned her brother that Agent Kiernan asked to see her passport and social security card. At that time, the defendant told him that her passport was at the Polish Consulate, but began to look through a dresser drawer to find her social security card. The defendant testified that Agent Kiernan was searching everywhere in her apartment for the social security card. Finally, the defendant found the social security card in the name of Stanislawa Sobota and gave it to Kiernan, who demanded to see her second social security card. About fifteen minutes later, the defendant found and gave the social security card in the name of Grazyna Sobota to Kiernan. Kiernan continued searching for some time after that and then placed the defendant and her brother under arrest. Defendant testified that she was very "afraid" of Agent Kiernan's threatening manner. Tr. at 163.

As to her interview at the INS office, the...