US v. Fernandez Ventura

• Citation: 892 F. Supp. 362
• Decision Date: 30 June 1995
• Docket Number: Crim. No. 94-364 (JAF).
• Parties: UNITED STATES of America, Plaintiff, v. Amado FERNANDEZ VENTURA and Milagros Cedeño, Defendants.
• Court: U.S. District Court — District of Puerto Rico

892 F. Supp. 362

UNITED STATES of America, Plaintiff, v. Amado FERNANDEZ VENTURA and Milagros Cedeño, Defendants.

Crim. No. 94-364 (JAF).

United States District Court, D. Puerto Rico.

June 30, 1995.

COPYRIGHT MATERIAL OMITTED

Asst. U.S. Atty. Antonio R. Bazan, Guillermo Gil, U.S. Atty., D. Puerto Rico, San Juan, PR, for plaintiff.

Linda Backiel, Gregorio Lima, San Juan, PR, for defendants.

OPINION AND ORDER

FUSTÉ, District Judge.

I. Introduction

Defendants, Amado Fernández Ventura and Milagros Cedeño, request that we suppress inculpatory statements made in the absence of Miranda warnings while defendants were subject to secondary Customs inspection and interrogation. We conclude that the defendants' statements were made after their rights to silence and counsel had attached and while subject to custodial interrogation; accordingly, we suppress the inculpatory testimonial evidence procured thereby. We also conclude that defendants would violate the 31 U.S.C. § 5324(b)(3) (1988) prohibition against structuring an illegal importation of monetary instruments if, while aware of the declaration requirement and/or antistructuring laws, they failed to declare money carried across the border, the sum of which money they knew to exceed the declaration requirement, and which money they also knew belonged to a single person or entity.¹

II. Facts

Defendant Fernández' frequent travel between Saint Maarten, N.A., and Puerto Rico triggered a computerized advisement that placed Customs officers on lookout for him as he deplaned at San Juan International Airport. Customs officers had noticed his name in an American Airlines passenger list for a flight arriving from the Netherlands Antilles that day. When the flight arrived, a roving Customs inspector was sent to bring Fernández to secondary inspection as soon as he deplaned and had cleared Immigration. As he cleared Immigration, Fernández was accosted and immediately taken to the secondary inspection tables. At secondary inspection, Fernández was asked whether he was carrying any money; he replied that he was carrying $8,000. During the accompanying legal, routine border search, Customs officers found women's lingerie in his suitcase. Customs officers asked Fernández to whom the lingerie belonged. When he stated that it belonged to "mi mujer", Customs officers asked him to direct them to codefendant Cedeño, the woman to whom the defendant had referred.²

Cedeño had already cleared Customs, but was still within the Customs enclosure when she was brought back for interrogation at secondary inspection. While walking to the inspection area, Customs Inspector Fisher asked Cedeño if she was carrying any money. She answered that she was carrying approximately $9,000.³ Upon searching the defendants, officers found them to be jointly in the possession of $16,166, amounting to $6,166 above the limit beyond which declaration is required under 31 U.S.C. § 5316 (1988) and 31 C.F.R. § 103.23 (1994). Officer Alvino then asked Fernández whether the money belonged to him. He stated that the money belonged to his money exchange company. The officer then asked whether defendant was president of the company. When Fernández replied that he was, in fact, president of the company to which the money belonged, the officers placed him under arrest for false representations and failure to declare.

In count one, the government charges both defendants with failure to declare as required by 31 U.S.C. § 5316 (1988). In counts two and three, the government charges the defendants each with making a false, fictitious or fraudulent representation to the U.S. Customs Service, in violation of 18 U.S.C. § 1001 (1988).⁴

Defendants now request that we suppress, as having been taken without the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), all statements made by them after officers began to investigate the ownership of the lingerie found in Fernández' possession. Defendants also assert that, because Cedeño is only the employee and girlfriend of Fernández, not his legal wife, they properly filed independent Customs declarations which correctly indicated that they were not carrying money in excess of the declarable minimum. We consider these claims, each in turn.

III. Miranda Violation

No one doubts that, as a practical matter, routine questioning conducted by Customs officers does not require Miranda warnings. United States v. Doe, 878 F.2d 1546 (1st Cir.1989). Unfortunately, the courts have not developed a uniform approach to determine when, in the course of more involved Customs interrogation, an individual must receive Miranda warnings. The Supreme Court has remained conspicuously silent on the subject, and the several courts of appeals have pieced together approaches, no two of which are identical.

A. On-the-Scene Questioning

Many courts have held that routine Customs questioning comes within the "on-the-scene questioning" exception found in Miranda. Chavez-Martinez v. United States, 407 F.2d 535 (9th Cir.1969); United States v. Silva, 715 F.2d 43 (2nd Cir.1983); United States v. Henry, 604 F.2d 908, 915 (5th Cir. 1979). Miranda created the "on-the-scene" exception with the following language:

When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.

Miranda, 384 U.S. at 477-78, 86 S.Ct. at 1629-30.

This language does effectively capture the notion that purely investigatory, non-custodial questioning need not be Mirandized where there exists none of the compelling atmosphere of in-custody interrogation. However, by its own language, the exception does not apply to questioning of an individual who is under "restraint".

Those courts that have applied the "on-the-scene" questioning exception to authorize un-Mirandized routine Customs interrogation necessarily imply that routine Customs interrogation is not "custodial" for purposes of Miranda. Anyone who has ever been in a Customs enclosure is keenly aware that they are not free to leave until they receive a Customs clearance, and that a Customs clearance will not be issued unless they cooperate in the fullest with Customs officials during both inspection and interrogation. It is, therefore, a masterwork of judicial disingenuity to suggest that an exception designed to cover on-the-scene questioning — where the subject is free to simply walk away — was ever intended to apply in an environment in which persons are deprived of their freedom until they have proven their entitlement to a Customs clearance.⁵ Customs is an inherently coercive environment because an individual is never free to simply walk away; accordingly, we prefer an approach, detailed below, which stays within the bounds of Miranda.

B. Issues

Given the jurisprudential disjunction regarding the application of Miranda to Customs interrogation, we focus here on the original purpose of the rule created in Miranda v. Arizona. Miranda aims to preemptively dispel the coercive atmosphere inherent in all custodial interrogation by informing or reminding the detainee of exercisable rights to silence and counsel. Notice that these rights are available is important because a detainee who exercises either of these rights effectively forecloses further questioning and precludes the coercive interrogation tactics with which the Miranda court was concerned.

In order to be effective, Miranda warnings must be provided to an individual subject to custodial interrogation at the instant that the underlying rights to silence and counsel attach. In essence, there are, then, four relevant inquiries in determining whether Miranda has been violated:

1. Was the person in "custody"? and

2. Was the person "interrogated"? and

3. Had the Fifth Amendment right against self-incrimination attached? or

4. Had the Sixth Amendment right to counsel attached?

We address these issues, each in turn.

C. Custody

Some courts focus their analysis on the issue of custody, either independent of or in conjunction with an analysis under the on-the-scene exception to Miranda. Courts that focus on the issue of custody have held that, in the context of Customs interrogation, "custody for purposes of Miranda" depends not only on whether a reasonable person would have felt free to leave, but also upon whether there existed probable cause to make an arrest. See United States v. Estrada-Lucas, 651 F.2d 1261, 1266 (9th Cir.1980); United States v. Moore, 638 F.2d 1171 (9th Cir.1980). This approach confuses the issue of custody with the issue of when the defendant's rights to silence and counsel attach. In so doing, these cases create an unmanageable and unnecessary distinction between custody and "custody for purposes of Miranda," for the degree of confinement does not necessarily depend at all upon the degree of actual or justified suspicion. The test for custody as enunciated by the Supreme Court depends exclusively upon whether a reasonable person in the defendant's position would have felt free to leave. See Stansbury v. California, ___ U.S. ___, ___-___, 114 S.Ct. 1526, 1528-29, 128 L.Ed.2d 293 (1994). See also Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); Lowe v. United States, 407 F.2d 1391, 1397 (9th Cir.1969).

As we have already noted, Customs is an inherently coercive environment. A traveler is not ordinarily free to leave Customs until granted a Customs clearance; the...