United States v. Skiljevic

• Decision Date: 07 June 2012
• Docket Number: Case No. 11-CR-72
• Parties: UNITED STATES OF AMERICA Plaintiff, v. CVIJAN SKILJEVIC and NEDELJKA SKILJEVIC Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

UNITED STATES OF AMERICA Plaintiff,

v.CVIJAN SKILJEVIC and NEDELJKA SKILJEVIC Defendants.

Case No. 11-CR-72

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Dated: June 7, 2012

DECISION AND ORDER

The government charged husband and wife defendants Cvijan Skiljevic (hereafter "Cvijan") and Nedeljka Skiljevic (hereafter "Nedeljka") with unlawfully procuring their naturalization as United States citizens.¹ Specifically, the indictment alleges that:

2. In procuring [his/her] naturalization, the defendant falsely swore in [his/her] Form N-400 (Application for Naturalization) that [s/he] had never lied to any United States government official to gain entry into the United States, and never gave false or misleading information while applying for any immigration benefit, or to prevent deportation, exclusion, or removal.

3. As the defendant well knew, [s/he] made material false statements under oath in her Refugee Application (Form I-590), and in [his/her] Lawful Permanent Resident Application (Form I-485). Specifically, the defendant lied about [his/her] service in the Army of the Republika Srepska (VRS) and [s/he] lied about where [s/he] was living during the years when [s/he] was serving in the VRS.

All in violation of Title 18, United States Code, Section 1425(a).

(Indictment [R. 5] at 1-2.)

Defendants filed motions to suppress statements based on an unlawful traffic stop and Miranda violations, to dismiss the indictment based on an ambiguous question, to dismiss based on selective prosecution, and to suppress statements based on a violation of the rulesgoverning the International Criminal Tribunal for the Former Yugoslavia ("ICTY") and the Vienna Convention on Consular Relations ("VCCR"); Nedeljka moved to suppress physical evidence based on a defective search warrant. The magistrate judge handling pre-trial proceedings in this case held an evidentiary hearing on the first motion to suppress, then issued a recommendation that all of the motions be denied. Defendants object. My review is de novo. See Fed. R. Crim. P. 59(b).²

I. MOTION TO SUPPRESS - TRAFFIC STOP / MIRANDA

A. Facts

Defendants do not specifically object to the magistrate judge's recitation of the facts. I will therefore adopt the magistrate judge's factual summary (Recommendation [R. 84] at 6-11) and present an abbreviated version of events here.

Immigration and Customs Enforcement ("ICE") agents obtained a search warrant for defendants' apartment seeking documents and other evidence relating to their alleged military service and residence in Bosnia. The agents also wanted to question defendants and perhaps obtain their assistance in a matter overseas. As the agents arrived to execute the warrant at about 6:00 a.m. on March 15, 2011, they saw defendants' car leave the parking lot. Agents stopped the vehicle, driven by Cvijan, about a mile away from the apartment building and askedhim to accompany the agents back to the apartment. Cvijan agreed, accepting a ride back to the apartment with the agents. Due to space constraints, the agents then asked Cvijan to accompany them to their office to answer some questions. Cvijan again agreed, and the agents drove him to an ICE office in Milwaukee. Upon arriving, agents directed Cvijan to a conference room, which contained a large table and approximately ten chairs. The interrogating agent (Stillings) testified that he could not remember whether the door remained open or closed, but Cvijan was not handcuffed or considered to be in custody during the questioning.

Stillings asked Cvijan, in English, to provide a statement, and Cvijan agreed. Stillings then read defendant his Miranda rights using a standard form. Stillings testified that Cvijan had a thick accent, but he appeared to understand what Stillings said to him. Stillings then questioned Cvijan about his immigration into the United States and his work and residence history in Bosnia. This questioning lasted from about 7:30 to 8:15 a.m.³

Meanwhile, back at defendants' apartment, the other agents (Engelhardt, Cerkic, and analyst McQueen) rang the bell, and Nedeljka answered the door and invited the agents inside. Agent Engelhardt testified that her "command of English was immediately apparent." (Evid. Hr'g Tr. at 85.) Engelhardt told Nedeljka he wanted to discuss her immigration documents, but he stated that the interview was completely voluntary, that she did not have to answer any of the questions, and that she could tell the agents to leave if she wanted. She agreed to talk to the agents. Engelhardt presented various immigration documents to Nedeljka, and she verified that she filled them out correctly. Engelhardt specifically pointed to the questions about militaryservice, and Nedeljka verified that she did not participate in military service. Engelhardt testified that he had no trouble communicating with Nedeljka in English. (Id. at 99.)

Engelhardt then showed Nedeljka documents indicating that she had been a member of the VRS, after which her demeanor became more serious. Engelhardt told Nedeljka that she had not been truthful to him and that lying to a federal agent is a crime. He also explained that there was larger case outside of her own that he believed she knew something about. Nedeljka denied the information and stated that she did not see anything; she claimed that she had told Engelhardt the truth. She then became upset and stated that Muslims had killed her father. McQueen interjected that "he didn't give a fuck about her father" (id. at 114), and Nedeljka began to cry. McQueen reminded Nedeljka that she could ask them to leave.

Engelhardt testified that the dialogue began to break down at that point, and Agent Cerkic, a fluent Serbo-Croatian speaker, began to translate for Nedeljka. Engelhardt informed Nedeljka that they had a search warrant and asked if there were any items in the house linked to the VRS . Nedeljka stated that there was nothing in her home related to the VRS and that they could search. Engelhardt then called the United States Attorney's office, after which he decided to take Nedeljka into custody. Agents arrested Nedeljka and transported her to the federal courthouse for an initial appearance.⁴

At approximately 8:40 a.m., Engelhardt returned to the ICE office and met with Stillings, who advised him of the information obtained from Cvijan. Engelhardt then took over the interview, along with McQueen and Cerkic. Engelhardt immediately questioned Cvijan about his involvement with the VRS and presented documents including Cvijan's name on a rosterof VRS members involved in the Srebrenica massacre. Cvijan denied that he was a member and stated that there were "ghost soldiers" on the roster. (Id. at 124.) Engelhardt decided to start the interview over, with Cerkic translating. Cvijan again agreed to give a statement.⁵ Through the course of this questioning, Cvijan admitted a history in the VRS and to making other false statements on his immigration documents. This questioning ended at about 10:00 a.m., after which an agent drove Cvijan back to his home. He was not arrested that day.

B. Analysis

Cvijan argued that the agents unlawfully stopped his car, and both defendants argued that the agents violated their rights under Miranda during their respective interviews.

1. Vehicle Stop (Cvijan)

The magistrate judge found that the agents had probable cause to stop Cvijan based on the evidence of immigration fraud set forth in the search warrant application. Probable cause exists when the police possess reasonably trustworthy knowledge of facts and circumstances that would warrant a reasonable person to believe that a suspect had committed or was committing a crime. Beck v. Ohio, 379 U.S. 89, 91 (1964). Probable cause does not require evidence sufficient to support a conviction, nor even evidence demonstrating that it is more likely than not that the suspect committed a crime; so long as the totality of the circumstances, viewed in a common sense manner, reveals a probability or substantial chance of criminal activity on the suspect's part, probable cause exists. United States v. Sawyer, 224 F.3d 675, 679 (7th Cir. 2000).

I agree with the magistrate judge's analysis. Engelhardt's search warrant application set forth in detail the evidence agents had against Cvijan at the time of the traffic stop. (Evid. Hr'g Ex. M.) The affidavit alleged that Cvijan was a member of the ad hoc Bosnian Serb military assault group which carried out an attack on Srebrenica, during which thousands of Bosnian Muslim men and boys were killed. (Id. ¶¶ 5-9.) During the aftermath of the Bosnian war, officials recovered Cvijan's VRS military service record, indicating that he entered the VRS on May 25, 1992, and demobilized on March 15, 1996. (Id. ¶ 24.) Officials also recovered a roster of the "Tactical Group Command," which listed Cvijan as a rifleman in the 3rd Rifle Squad of the 1st Rifle Platoon of the 2nd Infantry Company of the Zvornik Brigade. McQueen, an expert on the historical facts of the Bosnian War (id. ¶ 15), advised that this tactical group led the attack on Srebrenica (id. ¶ 26). The affidavit further detailed Cvijan's alleged immigration fraud, averring that he lied about at least four material facts, including his residence and military service in Bosnia from 1992 to 1996. (Id. ¶ 29.) Based on these false statements, the affidavit alleged, Cvijan was admitted to the United States as a refugee. (Id. ¶ 30.) The affidavit further alleged that Cvijan repeated his false statements in an application for permanent legal resident status (id. ¶ 31) and in his application for United States citizenship (id. ¶ 32). Based on this affidavit, a magistrate judge found probable cause and issued a search warrant for defendants' residence to search for items relating to their military service and residence in Bosnia. And based on this showing of probable cause, Engelhardt lawfully directed that Cvijan's vehicle be stopped. See United States v. Parra, 402...