Opinion
Criminal No. 00-255.
April 11, 2001.
ORDER
Before the Court is a motion to suppress filed by defendant on March 7, 2001. The government filed a cursory resistance to defendant's motion on March 12. The Court held a hearing on March 20, and continued the hearing until April 5 due to the unavailability of a witness for defendant.
The matter is now fully submitted.
I. BACKGROUND
The Court finds the following facts to be true based on testimony provided during the hearing. Defendant, Araseli Salazar, and Juan Jose Diaz-Limez reported to the Immigration and Naturalization Service's ("INS") office in Des Moines, Iowa on November 27, 2000 This was the time and place they had been directed to report in a "call in letter" from INS. Upon arrival, they were informed that the INS special agent they were to meet with was unavailable. They were given a second call-in letter indicating they should return on December 5 at 9:30 a.m.
The call-in letters Salazar and Diaz-Limes received directed them to bring tax forms, proof of marriage, and "photos and such" to the appointment. Testimony at the hearing indicated that INS wanted to interview Salazar and Diaz-Limes regarding petitions they had filed that alleged they were husband and wife, as INS suspected they were committing marriage fraud. Salazar is a citizen of the United States, and Diaz-Limes is a citizen of Mexico. Salazar and Diaz-Limes checked in at the front desk of the office at 9:30 a.m. on December 5, and then waited in the reception area. A few minutes before 10:00 a.m., Salazar and Diaz-Limes were directed by an INS representative to an office for their appointment. The office was not an interview room, and it contained a desk and book shelves. In the office, they met Special Agent Carolyn Swyers ("CS"). The three of them sat down in the office, and CS asked Salazar and Diaz-Limes for photo identifications, but neither had brought any with them. CS then asked for the tax forms and other documents which the call-in letters had requested they bring in, and Salazar and Diaz-Limes provided her with these items. During this time that CS was receiving the documents, Special Agent John Swyers ("JS") entered the office.
After JS entered the office, CS explained to Salazar and Diaz-Limes that she and JS were going to take separate statements from each of them regarding their marriage. At this time, it is clear that CS read to Salazar the "Warning as to Rights" form which listed her Miranda rights in the English language. Salazar, who did not require the assistance of an interpreter at the hearing, also read the form at that time. She then signed the form indicating she understood her rights, and she also signed the section entitled "Waiver" indicating that she was willing to make a statement and answer questions. This form was also signed and certified by CS, and witnessed by JS. The testimony of JS and CS at the hearing was conflicting regarding whether Diaz-Limes was also in the room and executed his waiver of rights at the same time Salazar waived her rights. It is clear that JS took Diaz-Limes to a separate office to interview him and to take his sworn statement, but it is unclear where Diaz-Limes was read his rights and signed his waiver of rights form. This form was signed by Diaz-Limes and JS, witnessed by CS and certified by both of them. The form that Diaz-Limes signed was also only in English.
After CS and Salazar were alone in the office together and Salazar had waived her Miranda rights, CS began interviewing her. Salazar made a number of statements indicating that she was married to Diaz-Limes, and she discussed different aspects of their life together. CS was sitting at a computer while she was asking the questions, and she would type in Salazar's answers to the questions. At the end of the interview, Salazar was given a chance to review her statement and she signed the statement indicating the answers she had given were true. This form was also signed by CS, and JS was the witness to this form.
While CS was interviewing Salazar, JS was conducting a similar interview with Diaz-Limes. Following the initial sworn statements given by Salazar and Diaz-Limes, CS and JS left the respective offices more than once. They would compare the answers they had received. CS and JS found inconsistencies in the statements given by Diaz-Limes and Salazar. CS then went back into the office where Salazar was waiting. It was approximately 10:45 a.m. CS told Salazar that they had reason to believe that the information she had just given in her sworn statement was false, and that they believed that Diaz-Limes was actually married to Salazar's sister, Lourdes. CS also told her that they believed her marriage to Diaz-Limes was fraudulent and an attempt to gain an immigration benefit for Diaz-Limes, and that she was being paid to commit the fraud. At this point, Salazar admitted the fraud but stated that she had not done it for the money.
CS then went through Salazar's Miranda rights with her again, and Salazar signed a second waiver of rights form. This form was also signed by CS and witnessed by JS. Salazar then gave a second sworn statement. In the statement, Salazar confessed that she had agreed to marry her brother-in-law, Diaz-Limes, to help him "get his papers." She stated that she had not done it for the money, but rather to help out her sister and her husband. She stated that she did not have a valid marriage with Diaz-Limes.
During the time frame that Salazar was giving her second sworn statement, JS was in the separate office taking a similar sworn statement from Diaz-Limes, in which he also made a confession. After both Salazar and Diaz-Limes had finished giving their second sworn statements, CS and JS met and conferred about what to do next. They decided to place Diaz-Limes in a detention cell, but had Salazar remain in an office. CS told Salazar to stay in the office and not to move. This was at approximately noon.
Salazar remained in the office until sometime between 3:30 and 4:00 p.m. that afternoon. During this time, CS and JS were completing administrative paperwork in connection with the marriage fraud investigation. They also were in contact with the Assistant United States Attorney and detention facilities concerning whether to detain Salazar, where to detain her, and how to proceed with arresting Salazar's sister, Lourdes. The situation was complicated because both Salazar and Lourdes' children were at home with Lourdes.
Defendant Salazar and her children lived with Salazar's sister, Lourdes, and Lourdes' husband, Diaz-Limes.
While they were making these decisions, Salazar remained in the office with the door open. she did not feel free to leave the office. JS brought her a hamburger for her lunch, but did not ask her if she wanted to go get lunch herself. CS was in and out of the office, and made phone calls in the office. Some of the phone calls CS made concerned where Salazar might be detained. At approximately 3:00 p.m., Salazar asked to make a phone call as she was scheduled to be at work at 3:30 p.m. and she wanted to inform her employer of her absence. CS did not allow her to make a phone call, and told her she could make it later. During the afternoon, Salazar asked CS what charges she would face. CS informed her she was facing five possible charges with a possibility of being sentenced to twenty-five years in prison. Salazar also reports that CS went on to state that Salazar could be fifty years old by the time she got out of prison.
Eventually it was determined that Salazar would accompany CS to arrest her sister, Lourdes. Salazar would then remain free to take care of the children. CS and Salazar traveled in CS's car. They were going to stop first at Salazar's parent's house to look for Lourdes. On the way there, Salazar was very upset and crying. CS told Salazar she could help herself and her family if she would provide information about on-going operations where false documents were made available. Salazar then mentioned a few places she thought engaged in the illegal business of falsifying documents. Upon arriving at her parent's home, Salazar entered the door first while CS waited outside. When CS did enter the house, Salazar's mother, Martha Salazar, denied knowing the whereabouts of Lourdes as she had just gotten home from work. Salazar's mother also testified at the hearing that CS told her that unless she told her where Lourdes was at, she would take her to jail or deport her to Mexico for her involvement as an accomplice to the marriage fraud. After a short stay, CS and Salazar left Martha Salazar's home and went to Lourdes' home, where she was at home with the children. CS took Lourdes into custody, and left Salazar there to take care of the children. This was at approximately 4:30 p.m.
About an hour later on December 5, Salazar received a phone call at home from CS. She was informed that INS had decided not to keep Lourdes in custody, and requested Salazar to come pick her up from the INS office. Salazar then drove down to the office, and was let into the building by security as it was after working hours. Salazar was escorted to an open area with desks in the INS office, as this is where Lourdes was being interviewed by CS. This area was behind a locked door. While there, Salazar gave a third sworn statement. In this brief statement, Salazar summarized much of what she had previously said in her second sworn statement but she went on to state the specific amount of money, $2500, that she was going to be paid for her acts. This third statement was also signed by CS, and JS signed it as a witness. JS was in the open office area at another desk while Salazar gave this third statement; however, JS admitted at the hearing that while he was in the room when Salazar gave this third statement, he did not hear Salazar give the statement nor did he witness Salazar's signing of the form. At some time after 6:00 p.m. on December 5, 2000, Salazar and her sister were allowed to leave the INS office to go home. Diaz-Limes was detained.
II APPLICABLE LAW DISCUSSION
Salazar argues that the three sworn statements she gave to the INS were involuntary and taken by INS in violation of her rights under the Fifth Amendment to the United States Constitution. The burden is on the government to establish that defendant's confession was voluntary by a preponderance of the evidence. See Colorado v. Connelly, 479 U.S. 157, 168-9 (1986). The voluntariness of a confession is viewed in light of the totality of the circumstances surrounding the confession including "`the conduct of the law enforcement officials and the capacity of the suspect to resist pressure to confess.'" United States v. Mendoza, 85 F.3d 1347, 1350 (8th Cir. 1996).
"The standard to be applied by this Court in determining whether a confession is incompetent because not voluntary is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person `shall be compelled in any criminal case to be a witness against himself.'" Hunter v. Swenson, 442 F.2d 625, 630 (8th Cir. 1971) (quoting Cummings v. United States, 398 F.2d 377, 381-82 (8th Cir. 1968) (other citation omitted)). "[T]he constitutional inquiry is not whether the conduct of officers in obtaining the confession was shocking, but whether the confession was `free and voluntary: that is, (it) must not be . . . obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.'" Id. (quoting Malloy v. Hogan, 378 U.S. 1, 7 (1964)); see also Bram v. United States, 168 U.S. 532 (1897). A defendant's confession is not voluntary if threats or promises by investigating law enforcement personnel make it so that a defendant's "`will [is] overborne and his capacity for self-determination critically impaired.'" United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995) (quotation omitted). See also United States v. Valle, 1988 WL 24550 (D.Minn. 1988) (finding that defendant's Fifth Amendment right was not violated when he voluntarily met with INS officials at INS office and gave a statement); and United States v. Astello, 2001 WL 209861 (8th Cir. March 5, 2001) (finding defendant's custodial statements voluntary despite fact that 18 year-old defendant had requested to speak with his mother and interrogating officers had told defendant he'd better "get on that train and tell us what happened" and had made promises of leniency).
The Court finds that the first two statements were made free and voluntarily by Salazar on the morning of December 5. There is no evidence in the record that either INS special agent made any threats or promises, express or implied, to Salazar prior to these statements. There was nothing unusually coercive about the environment in which Salazar was interviewed and gave these statements. Salazar was read her Miranda rights, she read those rights herself, and she signed a valid waiver of those rights. There is no evidence in the record that either INS special agent engaged in any coercive activity prior to the first two sworn statements given by Salazar. "[A]n incriminating statement cannot be found `involuntary' in the constitutional sense unless it is established that the police extorted it from the accused by means of coercive activity." United States v. Rohrbach, 813 F.2d 142, 144 (8th Cir. 1987) (discussing Colorado v. Connelly, 479 U.S. 157 (1986)).
Salazar's third statement, however, was given under a different set of circumstances. Whether a statement is voluntarily made is judged by the totality of the circumstances. See generally Brewer v. Williams, 430 U.S. 387 (1977). Salazar gave this third statement at approximately 6 p.m. on December 5. Salazar had initially arrived at INS's offices at 9:30 that morning and remained until returning home for a brief period around 4:30 p.m. During the afternoon hours, Salazar had been left in an INS office and did not feel free to leave. She was not allowed to make a phone call. She was told of the potential charges against her, that she was facing twenty five years in prison and that she might not get out until she was fifty years old. She was told that if she gave information to INS concerning other illegal activities that she could help either herself of her family. Salazar was witness to her mother being informed of her impending arrest, along with the arrest of her sister and brother-in-law. Salazar also witnessed the traumatic effect the days' events were having upon the family's children, as CS used Salazar to ensure the detainment of her sister and left Salazar there to take care of the kids.
Salazar's third sworn statement appears from the record in the hearing as defendant's Exhibit B. The statement also appears in the government's stack of exhibits but it is not labeled separately from Salazar's second sworn statement which appears in government's Exhibit 1-T.
Upon returning to INS's offices on the evening of December 5, Salazar was escorted to a secured area. She was not given her Miranda rights again at this time, nor did she waive them again. While Salazar arguably may have returned to INS's offices of her own volition, based on the totality of the circumstances which developed over the course of Salazar's lengthy stay and involvement with INS agents on December 5, 2000, the Court finds the third statement she gave that evening was not freely and voluntarily given. The circumstances surrounding the third statement in this case are distinguishable from the circumstances in Valle, 1988 WL 24550, another case where the defendant voluntarily went to INS office for an appointment. There was no evidence in Valle that INS officers used any coercive tactics to extract a statement from the defendant. This Court finds that over the long afternoon of December 5, 2000, things were done and said by the INS agents, in particularly CS, to render Salazar's third statement that evening involuntary.
The Court also notes that at the hearing, JS stated he signed Salazar's third statement as a witness. JS testified he was in the large open room where Salazar gave her third statement; however, he admitted he did not witness her give the statement, nor did he watch Salazar swear to the statement as truthful or sign the statement. While this may not be dispositive of whether Salazar gave the statement voluntarily, such a misrepresentation by an INS special agent, or any law enforcement official, is disturbing.
III. CONCLUSION
Based on the aforementioned reasons, defendant's motion to suppress is granted with respect to the third sworn statement made by Salazar on the evening of December 5, 2000. Defendant's motion is denied as it concerns the other two sworn statements given by Salazar prior to noon on the same day as the Court finds these were voluntarily given.
IT IS SO ORDERED.