US v. Cruz, 88 Cr. 427 (CSH).
| Decision Date | 19 December 1988 |
| Docket Number | No. 88 Cr. 427 (CSH).,88 Cr. 427 (CSH). |
| Citation | 701 F. Supp. 440 |
| Parties | UNITED STATES of America v. Maria I. CRUZ, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for U.S.; Thomas McC. Souther, of counsel.
The Legal Aid Society, Federal Defender Services Unit, New York City, for defendant; Jack Lipson, of counsel.
Defendant Maria I. Cruz is charged in a three-count indictment with conspiring to violate 18 U.S.C. §§ 1001 and 1546, and with substantive violations of those sections. § 1001 prohibits the making of false statements and writings in any matter within the jurisdiction of any department or agency of the United States. § 1546 prohibits the making of false statements in respect of documents required by the immigration laws. In essence, Cruz and her unnamed co-conspirators are charged with operating a scheme whereby false documents were presented to the United States Consulate in Santo Domingo, Dominican Republic, in respect of applications for immigrant visas to this country.
On January 22, 1988, a team of three special agents of the Immigration and Naturalization Services ("INS"), headed by Joseph Occhipinti, interviewed Cruz at her residence, 853 Riverside Drive, Apartment 6F, in Manhattan. During that interview the agents seized documents and recorded statements made by Cruz. Cruz now moves in advance of trial to suppress the documents seized and the statements made. An evidentiary hearing was held to resolve the factual disputes which arose from the parties' affidavits.
The witnesses at the hearing were Occhipinti, who was the case agent directing the relevant investigation; defendant Cruz; Carmen Ascencio, who shared the apartment with Cruz; and INS special agent Cristina Bankovic, a member of Occhipinti's team who participated in the events of January 22.1
Agent Occhipinti has been employed by the INS since 1976. He is currently, and has been since 1984, a supervisory special agent in charge of the New York City anti-smuggling unit, the investigative arm of the INS which conducts investigations into alien smuggling activity. Tr. 2-3. Occhipinti described his day-to-day responsibilities:
Basically I supervise criminal investigations, coordinate interregional investigations, and conduct the appropriate managerial duties required as a supervisor.
Toward the end of December 1987 or the beginning of January 1988, Occhipinti's unit initiated an investigation based upon intelligence that Cruz was involved in visa fraud and alien smuggling activity. The record does not reveal the details of the intelligence triggering the investigation of Cruz. One fact, however, is clear: when the INS agents went to Cruz' residence on January 22, 1988, they lacked probable cause to obtain a search warrant. Occhipinti testified that prior to his call at the apartment, he had not discussed with an Assistant United States Attorney "the question of whether there was sufficient probable cause to get such a search warrant." Tr. 44. The reason for that omission, Occhipinti made clear, was his own perception that probable cause did not exist. He gave this testimony:
The agents arrived at the apartment at about 7:10 A.M. on January 22. Occhipinti knocked on the door. Ms. Ascencio opened it. Occhipinti told Ascencio that he was an INS agent and wished to speak with Maria Cruz. Ascencio told Occhipinti that Cruz lived in the apartment. Occhipinti asked if he and the accompanying agents, Bankovic and John Remsen, could enter the apartment for the purpose of speaking to Cruz. Ascencio granted the agents permission to enter the apartment, and they did so.
The record shows that the apartment was shared by Ascencio, Cruz and their respective children. Cruz suggests in her post-hearing brief that Ascencio either did not permit the agents to enter the apartment, or in the alternative limited her consent to simply crossing the threshold, without penetrating into the interior rooms. But Ascencio's testimony on that point is equivocal; and I find on all the evidence that after Occhipinti identified himself and the other agents to Ascencio, Ascencio permitted the agents to enter into the apartment, including the interior. Given the occupancy of the apartment by Ascencio and her children, she had the authority to grant that permission. Accordingly the agents' presence in the apartment was lawful.
It is common ground that when the agents entered the apartment, Cruz was in one of the bedrooms, clad in a robe. As noted, Occhipinti had expressed a desire to interview Cruz. It is disputed whether Ascencio went into the bedroom and brought Cruz out, as the agents testified; or whether one or more agents went to the bedroom and asked Cruz to come out, as Ascencio and Cruz testified. In the view I take of the case, I need not resolve that dispute. It is common ground that when Cruz emerged from the bedroom, Occhipinti was in a room containing Occhipinti, Tr. 6. The three agents were in that room when Cruz entered it. Ibid.
Occhipinti testified that when Cruz entered the room, he told her he was a supervisor with INS; he introduced the other two agents to Cruz; and advised Cruz that the agents were there because they had received allegations that she was involved in the sale and preparation of various fraudulent documents. Cruz responded that she was employed by the Department of Motor Vehicles, and did in fact prepare immigration related forms. However, "she denied any involvement in the sale and preparation of fraudulent documents." Tr. 8. According to Occhipinti's account, he then asked if the agents could check the apartment to make sure that she had no fraudulent documents. Occhipinti testified he explained to Cruz that the agents could not perform a search of the apartment without her first giving written permission, and that he had a form which would convey that authority. Occhipinti testified that he showed her with form, read it to her, and that, without saying anything in response, Cruz signed the consent to search form. GX 1. The form recites consent to the search being given at 7:20 A.M. on January 22. Occhipinti "then began a search of the office area and the apartment." As further developed on cross-examination of Occhipinti, the case for the government is this:
Occhipinti's account of the manner in which he obtained Cruz' consent to a search differs in a significant respect from the account given by Cruz. Testifying in her own behalf at the hearing, Cruz gave this account on direct examination:
Cruz also testified on direct:
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