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United States v. Richmond

November 15, 2006

UNITED STATES OF AMERICA,
v.
KEON RICHMOND, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Defendant is charged in a two-count Indictment dated October 7, 2005. Count 1 alleges that "[o]n or about May 27, 2005, in Ulster County, . . . KEON RICHMOND, the defendant herein and an alien, did knowingly, willfully and falsely represent himself to be a citizen of the United States, to a United States Immigration Inspector . . . [i]n violation of Title 18, United States Code, Section 911." See Indictment at Count 1. Count 2 alleges that "[o]n or about June 1, 2005, in Ulster County, . . . KEON RICHMOND, the defendant herein and an alien, did knowingly, willfully and falsely represent himself to be a citizen of the United States, to a United States Immigration Inspector . . . [i]n violation of Title 18, United States Code, Section 911." See Indictment at Count 2.

Currently before the Court is Defendant's motion to suppress the statements that he made to immigration officers on May 27, 2005, and June 1, 2005.*fn1 Although the Government opposed this motion, it consented to a suppression hearing. See Dkt. No. 12. On March 21, 2006, the Court held a suppression hearing and reserved decision at that time. The following constitutes the Court's written decision regarding the pending motion.

II. BACKGROUND

At the time that the immigration officers interviewed him on May 27, 2005, and June 1, 2005, Defendant was incarcerated in the Ulster County Correctional Facility on an unrelated state sentence. Department of Homeland Security Deportation Officer Peter Mortensen interviewed Defendant on May 27, 2005, at the Ulster County Correctional Facility; and Immigration and Customs Enforcement ("ICE") Senior Special Agent Michael Polouski, together with Immigration Agent Spiros Karabinas, interviewed Defendant on June 1, 2005, at the same facility. Based upon the information that they obtained during those interviews concerning Defendant's place of birth, the Government charged him with false claims of United States citizenship.

Defendant moves to suppress the statements that he gave to the immigration officers for several reasons. Specifically, he moves to suppress the May 27, 2005 statements on the grounds

(1) that he was not provided with his Miranda warnings; (2) that, even if he were given his Miranda warnings, he did not voluntary waive his Fifth Amendment rights; and (3) that his statements were not voluntary.

Furthermore, with regard to his June 1, 2005 statements, Defendant moves for suppression on the grounds (1) that he was not given proper Miranda warnings, (2) that he never made a voluntary waiver of his Fifth Amendment rights as Miranda requires, (3) that he exercised his rights, (4) that his statements were not voluntary, and (5) that his statements were tainted by his unmirandized, coerced May 27, 2005 statements.

In response to Defendant's motion, the Government asserts (1) that the Fifth Amendment does not provide an individual with the right to lie; (2) that, because Defendant's May 27, 2005 and June 1, 2005 interviews were immigration interviews, Miranda warnings were not necessary; and (3) that Defendant's statements were false. Moreover, the Government asserts that Defendant was not represented by counsel during the May 27, 2005 and June 1, 2005 interviews and the Sixth Amendment does not attach to deportation hearings that are civil in nature.

The Court will review each of Defendant's statements in turn.

III. DISCUSSION

The Second Circuit addressed similar issues in United States v. Rodriguez, 356 F.3d 254 (2d Cir. 2004). In that case, the defendant was charged with, and later convicted of, illegal re-entry after deportation in violation of 8 U.S.C. § 1326 and of passport and visa fraud in violation of 18 U.S.C. §§ 1543, 1546, respectively. He appealed his conviction on the ground that the district court had erred in permitting an INS Special Agent to testify about statements that he had made to the agent four years earlier during an interview that took place while he was incarcerated at Rikers Island on unrelated stated charges. The defendant argued that he did not receive a Miranda warning before giving his statement to the INS Special Agent. The Second Circuit rejected this argument and affirmed the defendant's conviction.

In Rodriguez, an INS Special Agent interviewed the defendant pursuant to an INS policy of interviewing inmates whose national origin is listed as unknown or somewhere other than the United States. The Special Agent testified that the purpose of his interview with the defendant was to determine if he were subject to administrative deportation proceedings. During the interview, the Special Agent asked the defendant the questions listed on INS Form I-215c, entitled "Affidavit in an Administrative Proceeding."*fn2 Before he asked these questions, however, the Special Agent recited an introductory portion of the form, which included the following statements: "You have the right to be represented by counsel of your choice at no expense to the Government" and "Any statement you make may be used against you in a subsequent administrative proceeding." The defendant refused to sign the form, but the Special Agent signed it with a third ...


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