The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
All pretrial motions in this case were referred to United States
Magistrate Judge Marian W. Payson pursuant to 28 U.S.C. § 636.
Defendant, Abdelkrim Kadem ("Kadem"), filed motions, including a motion
to suppress statements made by him after his arrest to Investigator
Nelson Yera, with the Immigration and Customs Enforcement Agency. Kadem
made statements on January 15 and March 15, 2002, which he contends
should be suppressed because he was not given Miranda warnings.
Kadem also contends that certain statements he made at his removal
hearing before Immigration Judge John Reid should also be suppressed and
not used at his pending criminal trial. Magistrate Judge Payson conducted
a suppression hearing and Investigator Yera was the only witness.
In a Report and Recommendation filed March 1, 2004, Magistrate Judge
Payson recommended that both of Kadem's statements to Investigator Yera
that were made before Miranda warnings were given should be suppressed, but that Kadem's
statements at the removal hearing should not be suppressed.
Both the Government and Kadem have filed objections to Magistrate Judge
Payson's Report and Recommendation. The Government objects to Magistrate
Judge Payson's recommendation that Kadem's statements on January 15 and
March 15, 2002, be suppressed and Kadem objects to the Magistrate Judge's
recommendation that his statements at the removal hearing were proper and
need not be suppressed.
Statements to Investigator Yera on January 15 and March 15,
Magistrate Judge Payson recommended that all statements made by Kadem
to Investigator Yera at the Elmira Correctional Facility that were made
before Miranda warnings were given should be suppressed. I agree
that some statements should be suppressed for failure to Mirandize Kadem,
but I believe Kadem's initial statements concerning his identity, place
and date of birth are not precluded for failure to give the
When Yera responded to the Elmira Correctional Facility, he did so
because he had received a report, generated by the New York State
Department of Corrections ("DOCS") entitled "Report of Alien Person
Institutionalized." This document was received as Ex. 3 at the
suppression hearing before Judge Payson. On the report, it lists the name
of the inmate "Giovanni, Marciano", with a date of birth, December 14,
1960 and a birthplace of Rome, Italy. His last address in Brooklyn, New
York and his nearest relative were also listed, as well as the crime that
brought Kadem into the DOCS system, criminal possession of stolen
property in the fourth degree. Yera had arranged with DOCS officials to present the person described
on the form as "Giovanni, Marciano" for an interview. This person was
placed in an interview room for Yera. For the purposes of this
proceeding, I concur with Magistrate Judge Payson and find that Kadem was
"in custody" for purposes of Miranda, It is true that Yera was
there initially, not as part of a criminal investigation but to determine
Kadem's alienage. Nevertheless, I think the setting was such that the
determination of "in custody" is appropriate: Kadem was serving a
sentence, did not voluntarily walk to the interview room, but was
transported there, and a reasonable person in his position might well
feel he was not free to leave the interview room. See United States
v. Chamberlain 163 F.3d 499, 502 (8th Cir. 1998) (although fact of
incarceration is not dispositive with respect to inquiry into whether
person being interviewed was "in custody," "[t]hat inquiry must include
consideration of the fact of incarceration") (citing Illinois v.
Perkins 496 U.S. 292, 297 (1990)).
Kadem's contention, in argument before this court on the objections, is
that Yera should have immediately given Kadem Miranda warnings
before he asked any question whatsoever. I disagree. I think the proof
shows that Yera identified himself and made the simple inquiry of the
person presented to him as to his name, date and place of birth. There is
no evidence that Yera knew the person that had been brought to the
interview room and, therefore, it was entirely reasonable and proper for
Yera to attempt to ascertain the name of the man before him and to make
sure he was the same person that had been identified in the Report of
Person Institutionalized. "As a cautionary measure, police usually
prudently inquire as to the suspect's name to ensure that the wrong
person is not apprehended." United States v. Carmona,
873 F.2d 569, 573 (2d Cir. 1989). I find that Yera's purpose there was not to seek incriminating evidence
for criminal prosecution but to simply ascertain the name and identity of
the person who might well have issues concerning citizenship. The simple
question concerning the person's name, place of birth and date of birth
is not the type of question designed to elicit incriminating information.
United States v. Salgado, 292 F.3d 1169, 1172 (9th Cir. 2002)
("Although the interview occurred at the jail, it was solely for the
administrative purpose of determining whether Salgado was deportable when
he got out of jail. [The agent] had no reason to believe that Salgado's
statements would be incriminating").
Although this is not a classic "booking" situation where an officer
seeks pedigree information, it is quite similar and the result concerning
Miranda issues should be the same. Under such circumstances, an
officer is generally under no obligation to give Miranda
warnings prior to obtaining preliminary basic pedigree information.
United States v. Rodriguez, 356 F.3d 254, 259-60 (2d Cir. 2004)
(no Miranda warning required where agent interviewed defendant
at jail, since interview was conducted solely for purpose of determining
whether defendant would be subject to administrative deportation after
his release from prison on unrelated state charges, and where agent was
unaware of potentially incriminatory nature of disclosures he sought from
defendant regarding his birthplace and citizenship).
The fact that Kadem allegedly lied and gave a false name and is now
charged criminally with that is of no consequence in determining whether
Miranda warnings should have been given. One who makes false
statements or commits perjury does so at his peril and the
Miranda warnings were not designed to advise those in custody
not to lie. See Carmona, 873 F.2d at 573. ("If the suspect
chooses to give an alias, it may work to his prejudice"). As the court
stated in United States v. Tavares, No. 01 CR. 1115, 2002 WL
31571662, at *6 (S.D.N.Y. Nov. 18, 2002), To permit a defendant to suppress the truth by his
own prevarications would turn Miranda
into a dangerous sword to be wielded unfairly
by the guilty. It would make the law a foolish
mockery of common sense. . . . Simply because a
defendant gives false information in response to
pedigree questions, and therefore renders the
information incriminating, does not mean that
Miranda warnings were required.
I do have concern though with other questions that Yera raised that do
seem to attempt to elicit incriminating information. Questions relating
to the manner in which Kadem arrived in this country, whether he had
proper documentation in this particular case tend to call for responses
that could reasonably be anticipated would be incriminating. Yera knew
that the person before him was serving a jail sentence, and he had a
report of conviction that indicated he had previously been convicted of
an aggravated felony which could have resulted in deportation. Under
these circumstances, I believe questions relating to his status suggest
that Miranda warnings should have been given. Therefore, I agree
with Magistrate Judge Payson that any statements relating to these topics
which were made prior to the Miranda warnings should be
suppressed and may not be used in the Government's case in chief.
Obviously, under well-established authority, if the defendant elects to
testify, these statements may be used for impeachment purposes.
Pollard v. Galaza 290 F.3d 1030, 1033 (9th Cir.), cert.
denied, 537 U.S. 981 (2002) ("Although a statement, taken in
violation of Miranda, may not be used substantively in the
prosecution's case-in-chief, such a statement, if voluntary, may be used
for impeachment should the Defendant testify inconsistently") (citing
Harris v. New York, 401 U.S. 222, 224-26 (1971)); accord
United States ex rel. Wright v. LaVallee, 471 F.2d 123, 126-27 (2d
Cir. 1972), cert. denied, 414 U.S. 867 (1973).
I make the same ruling concerning the March 15, 2002, statements. The
basic pedigree information may properly be elicited in the Government's
case in chief, but other matters elicited prior to the Miranda
warnings may not. Statements Made by the Defendant at the Deportation Proceeding
Before Immigration Law Judge John Reid.
Magistrate Judge Payson recommended that statements made by Kadem at
the removal hearing before Immigration Judge Reid not be suppressed.
Defendant's position before Magistrate Judge Payson was that
Miranda warnings should have been given but, apparently after
considering Magistrate Judge Payson's decision, the defendant's position
now is not that Miranda warnings should have been given but that
the statements were coerced because of the nature of the proceedings.
Magistrate Judge Payson covered Kadem's motion to suppress these
statements in some detail in the Report and Recommendation. I agree with
the findings made and her ...