United States v. Carriles

REVISED SEPTEMBER 9, 2008
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
August 14, 2008
No. 07-50737
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellant
v.
LUIS POSADA CARRILES
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
Before KING, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
KING, Circuit Judge:
The United States appeals the dismissal of an indictment charging false
statements in naturalization proceedings. The basis for this dismissal was the
district court’s findings that the government engaged in deceptive conduct and
outrageous tactics during these naturalization proceedings. The United States
also appeals the suppression of statements made by the defendant on the basis
of incompetent translation in the naturalization interview at which the
statements were made. For the reasons that follow, we reverse the dismissal of
the indictment, reverse the suppression of the statements made at the
naturalization interview, and remand the case for further proceedings.
No. 07-50737
I. Facts and Proceedings
A. Factual Background
The defendant, Luis Posada Carriles, is a well known anti-Castro Cuban
exile who has been associated with several major events in modern Latin
American history. The events directly at issue in this case, Posada’s entry into
the United States and his subsequent attempt to become a naturalized American
citizen, begin in 2005. In order to fully understand the issues swirling around
Posada’s naturalization application, though, it is necessary to go back much
further, to the early 1960’s and the aftermath of the Cuban Revolution.
Posada, a Cuban native, moved to the United States in 1960, the year after
the fall of the Batista regime and Fidel Castro’s rise to power. To say the least,
Posada has never approved of the Castro regime; in his own pleadings in the
district court, Posada is described as “unabashedly opposed to the domination
of his native country of Cuba by the tyrannical dictator Fidel Castro and his
brother Raul.” In 1961, Posada became involved with the planning for the Bay
of Pigs invasion and was brought into contact with the CIA. He later enlisted
in the United States Army, was commissioned a second lieutenant, and received
special training at Fort Benning with other former members of the 2506th
Cuban Brigade who had been commissioned in the United States Armed Forces.
Posada was honorably discharged from the Army in March 1964. Unclassified
documents contained in the record indicate that from 1965 until 1974 he
operated as a paid CIA asset, although Posada asserts that he maintained a
relationship with the CIA well into the 1980’s.
Posada went to work for the Venezuelan secret police in 1967 and
eventually became the head of a security division in charge of surveillance, VIP
protection, weapons, and explosives. In this capacity, he directed counter-
insurgency operations against leftist guerillas supported by Castro. Posada was
later arrested by Venezuelan authorities in connection with the 1976 bombing
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No. 07-50737
of a Cubana Aerolineas aircraft in which all 73 people aboard were killed. After
several years, he escaped from prison while still awaiting trial. Venezuela still
seeks extradition; Posada, for his part, denies any involvement and claims that
the charges were orchestrated by Castro.
After his escape from Venezuelan prison, Posada made his way to El
Salvador. There he became involved in supplying arms and materiel to aid the
U.S.-backed Contras fighting against the Sandinistas in Nicaragua, an operation
that came to light as part of the Iran-Contra affair.
Posada moved to Guatemala in 1989 and was employed in security by the
state telephone company. In 1990, he was shot several times in the face and
torso during an assassination attempt allegedly carried out by Cuban agents.
Throughout the 1990’s he lived under assumed names in various Central
American countries. When a series of hotel and tourist-site bombings occurred
in Havana in 1997, Posada was suspected of involvement. The following year,
he was the subject of two front-page articles in the New York Times in which he
claimed a coordinating role in planning and executing the bombings. Posada
later asserted, however, that his statements had been misunderstood and
distorted by the reporter who interviewed him.
In 2000, Posada was arrested in Panama in connection with an attempt
to assassinate Fidel Castro at a summit meeting in that country. He was
detained for several years and ultimately convicted of crimes against national
security (a Panamanian offense related to the manufacture or acquisition of
bomb-making materials1) and counterfeiting public records. The outgoing
president of Panama pardoned Posada in August 2004.
Posada entered the United States illegally some time in March 2005. He
filed an asylum application and was scheduled to attend an interview with
1
This charge is referred to in the record by several other names, including “public
endangerment.”
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No. 07-50737
immigration officials on May 17, 2005, but, on that day, he cancelled the
interview, withdrew his asylum application, and held a press conference
announcing his presence in Miami. Immigration officials took Posada into
custody later that afternoon, and a few days later, on May 21, 2005, he
submitted to an interview. Posada was ultimately placed in removal proceedings
and, on September 27, 2005, ordered removed “to any country, other than Cuba
and Venezuela, willing to accept him.” The immigration judge found that due
to his history of anti-Castro activities, Posada would face a clear probability of
torture if deported to Cuba or Venezuela. But since no other country was willing
to accept him, Posada remained detained in an immigration-law equivalent of
limbo. On October 12, 2005, Posada filed an application for naturalization with
United States Citizenship and Immigration Services (“USCIS”). This application
and the related naturalization proceedings—which ultimately formed the basis
for Posada’s indictment on false statement charges—are discussed in greater
detail below.
Meanwhile, at some point the government opened an investigation into the
nature and manner of Posada’s entry into the United States in March 2005.
Posada maintained that he had entered the United States by land through
Mexico with the assistance of a coyote (this was apparently the story that he told
immigration officials at the May 21, 2005, interview), but media reports as well
as public statements by Castro indicated that he had actually entered by sea into
Miami aboard the vessel Santrina. There were reasons to suspect that this in
fact represented the truth. The Santrina was owned by the Caribe Foundation,
and on November 15, 2005, federal agents conducting an unrelated search of
that organization’s Miami offices discovered a Guatemalan passport bearing
Posada’s picture issued in the name of “Manuel Enrique Castillo Lopez.” This
passport indicated that “Castillo Lopez” had traveled from Guatemala to the
Mexican province of Quitana Roo, in which the city of Cancun is located, in
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No. 07-50737
March 2005. Documents provided by the government of Mexico revealed that
the Santrina had run aground at Isla Mujeres, an island off the coast of Cancun,
on March 15, 2005. There were also reports that Posada had been on Isla
Mujeres around this time.
B. Naturalization Proceedings
Posada initiated the naturalization proceedings at issue in this case by
filing a Form N-400 application for naturalization. The basis for application was
his service in the U.S. armed forces during a period of military hostilities and his
honorable discharge. See 8 U.S.C. § 1440.
The Form N-400, although obviously adapted to its stated purpose as a
naturalization application, is a form of the type familiar to anybody who has ever
applied for a government job or sought a government benefit. The form first
requires the applicant to provide basic biographical information, e.g., full legal
name as well any other names used, address, social security number, date and
place of birth, nationality, marriage and family status, employment history,
military service, and selective service registration. It also contains a variety of
questions relevant to the issue of citizenship and the applicant’s moral character.
Among other things, the applicant is asked if he has ever: been a member of the
Communist Party, any other totalitarian organization, or a terrorist
organization; advocated the overthrow of any government by force or violence;
been associated with the Nazi government of Germany; been arrested, cited, or
detained by any law enforcement officer; been convicted of a crime; committed
a crime for which he was not arrested; been a habitual drunkard or prostitute;
sold or smuggled illegal drugs; helped anyone enter or try to enter the United
States illegally; given false or misleading information while applying for an
immigration benefit or to prevent deportation; or lied to any U.S. government
official to gain entry or admission into the United States. The applicant is also
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No. 07-50737
asked whether he supports the Constitution and form of government of the
United States and is willing to take the Oath of Allegiance.
The last page of the Form N-400 instructs the applicant to certify under
penalty of perjury that the application is true and correct. There is also a
declaration required of the individual (if any) who prepared the application for
the applicant (Posada’s application was prepared by an attorney). Finally, there
is an additional part of the application that the applicant is instructed not to
complete until told to do so by an INS (now USCIS) officer. Under the heading
“Signature at Interview,” the applicant is required to swear before an
immigration officer that the contents of the application, including any
corrections made at the interview, are true and correct. Below are spaces for the
signatures of both the applicant and the officer.
Immigration regulations govern the scope of the naturalization
proceedings after a Form N-400 is filed. These regulations require that USCIS
conduct an investigation of the applicant that consists, at a minimum, of a
review of “all pertinent records [and] police department checks.” 8 C.F.R.
§ 335.1. The regulations also provide for an interview at which the applicant is
to be questioned under oath: “[s]ubsequent to the filing of an application for
naturalization, each applicant shall appear in person before a Service officer
designated to conduct examinations . . . .” Id. § 335.2(a). At the interview, the
examining officer is to correct the applicant’s written application so far as
necessary to conform with the answers given in person by the applicant; at the
end of the interview the applicant then must swear to the truth of the
application, including any corrections made at the interview, and sign the last
page of the Form N-400 in the presence of the examiner. Id. § 335.2(c), (e).
Posada’s naturalization application was assigned for investigation to
Susana Bolanos, an adjudications officer with USCIS who specializes in cases
that may involve national security or immigration fraud. Bolanos traveled from
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No. 07-50737
her station in Washington, D.C., to El Paso, where Posada was detained, to
conduct Posada’s naturalization interview on April 26 and 27, 2006. Also
present at this interview were an attorney from the Department of Homeland
Security, an attorney from the Department of Justice’s Office of Immigration
Litigation, Posada’s two attorneys, and a Spanish-language interpreter provided
by the government.
At the beginning of the naturalization interview, Posada was informed in
English and Spanish that: the proceeding would be conducted under oath; any
statement could be used in any legal or administrative proceeding; lying or
giving false information could subject him to criminal or civil penalties; he could
exercise his right against self-incrimination if he thought that an answer would
incriminate him; and he could terminate the interview at any time. The
interview was conducted in a mixture of English and Spanish. At times
questions would be put to Posada in English and translated into Spanish by the
interpreter; Posada would then give answers in Spanish which would be
translated into English by the interpreter. At other times, however, Posada
simply listened to the questions in English and responded in English without the
use of the interpreter.
Posada’s naturalization interview lasted approximately eight hours over
the course of two days. Among other things, Posada was asked about his history
of anti-Castro activities, the 1997 Havana bombings, two alleged plots to
assassinate Castro, his activities with the Venezuelan secret police, his use of
names other than his legal name, the Guatemalan passport bearing his picture
issued in the name of “Manuel Enrique Castillo Lopez,” his means of entry into
the United States, the circumstances of his imprisonment in Venezuela and
Panama, and any criminal acts for which he had not been arrested. Posada
answered many of the questions but at times invoked the Fifth Amendment and
refused to answer. In accordance with the regulations described above,
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No. 07-50737
corrections were made to Posada’s Form N-400 to conform to Posada’s responses
during the course of the interview, and at the conclusion of the interview Posada
initialed the portions of the application that were corrected and signed his name
in the presence of Bolanos.
By letter of August 24, 2006, USCIS denied Posada’s naturalization
application.
C. Proceedings in the District Court
On January 11, 2007, a federal grand jury returned a seven-count
indictment charging Posada with making false statements in connection with
efforts to obtain naturalization. Posada was charged with one count of
naturalization fraud (relating to false statements both on his written Form N-
400 naturalization application and during the April 2006 naturalization
interview) and six counts of making false statements in a naturalization
proceeding (five counts involving the naturalization interview and one count
involving the Form N-400). The allegedly false statements identified in the
naturalization interview were statements relating to Posada’s entry into the
United States in March 2005, specifically, that he had traveled into the United
States over land through Mexico, that he had never been aboard the Santrina
or seen four individuals who had been aboard it at the time, that he had never
been in Cancun or Isla Mujeres, and that he never had a Guatemalan passport.
The allegedly false statement identified in the Form N-400 was Posada’s
representation that the only two names he had used other than his own were
“Ramon Medina” and “Franco Rodriguez”; it was the government’s contention
that Posada had also used the name on the Guatemalan passport, “Manuel
Enrique Castillo Lopez.”
The case was scheduled for jury selection and trial on May 11, 2007. Less
than two weeks before that date, on April 30, 2007, Posada filed a motion to
suppress any statements made during the naturalization interview, as well as
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No. 07-50737
any notes, tapes, or documents containing the statements, based on the
government’s failure to warn Posada of the existence of a criminal investigation.
The thrust of Posada’s argument in this motion was that the government had
improperly used the naturalization interview for the purpose of gathering
information or statements from him to serve as the basis for an indictment.
Posada maintained that the government had been assembling a criminal case
against him since April 2005, and yet did not warn him or his attorneys that he
was the subject of any investigation at the time of the naturalization interview.
Posada asserted that though it was clear (according to him) that he did not
qualify for naturalization due to his prior foreign convictions in Panama, the
government conducted the interview anyway, “not to gather information
regarding his eligibility for naturalization . . . , but to obtain allegedly false
statements to indict a 79 year old man who could no longer be indefinitely
obtained in immigration custody . . . .”
In a second motion filed on April 30, 2007, Posada urged the district court
to exclude as evidence the tapes and transcript of the naturalization interview
due to: (1) the poor quality of the tapes; (2) inaccurate translation during the
interview by the government-provided interpreter; and (3) inaccurate
transcription and translation of the tapes. In this motion, Posada argued that
the tapes contained an excessive amount of inaudible portions, that the
interpreter rendered inaccurate and incomplete translations of the questions
posed to Posada, and that the translators who produced the transcript of the
interview were not court certified or otherwise qualified. The district court,
finding it necessary to conduct an in camera inspection of the interview tapes,
entered an order on May 1, 2007, requiring the government to produce the tapes
by noon on the following day. The government produced the tapes and also filed
responses to Posada’s motions on May 2, 2007. Two days later, on May 4, 2007,
the district court held a pre-trial hearing on all pending motions.
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No. 07-50737
Susanna Bolanos, the adjudications officer who had interviewed Posada,
testified at this hearing. She explained that upon being assigned Posada’s
application, she had reviewed his Form N-400 and quite-extensive “Alien File,”
and also performed her own research on the Internet. She testified that when
she first reviewed Posada’s application and other available materials, “it seemed
. . . that he might not be eligible” for naturalization, but that she scheduled an
interview anyway. She explained that it was standard practice to schedule an
interview, and that an interview would be scheduled even though an applicant
may appear to be ineligible in order to allow the applicant to clarify any issues
in the application and because applicants are entitled to an interview.
Bolanos further testified that while preparing for Posada’s interview, she
met with the two government attorneys who would be present at the interview,
as well as an additional attorney from the Department of Justice. According to
Bolanos, the purpose of this meeting, which occurred no more than a month
before her trip to El Paso, was to review the questions, prepare for the interview,
and make sure that the questions would “flow.” She testified that nobody ever
told her to ask any particular questions at the interview, and that all of the
questions that she prepared were relevant to the eligibility requirements for
naturalization.
Carlos Spector, an immigration lawyer, testified on Posada’s behalf as an
expert. Spector testified that: he had participated in around 700 naturalization
interviews; having an aggravated felony conviction is the “capital death penalty”
for an applicant seeking immigration relief such as naturalization because such
a conviction acts as a statutory bar to naturalization; in his experience
naturalization interviews typically last, at most, half an hour; and government
lawyers had never been present at an interview that he had been to.
On May 8, 2007, the district court issued an order excluding the tapes and
transcripts, suppressing the statements made at the interview, and further
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No. 07-50737
dismissing the indictment. After noting that it had thoroughly reviewed the
enhanced digital copy of the tapes multiple times with the aid of a court-certified
interpreter, the district court first found that the digital copy was inaudible at
times, but that the inaudible portions were not so substantial as to render the
digital copy untrustworthy. It next found inaccuracies in the transcript of the
interview that made the transcript unreliable, although it noted that if the
indictment were not dismissed, there would still be time for the government to
submit a new version of the transcript before trial.
Taking up Posada’s challenge to the translation services provided by the
interpreter at the interview, the district court analogized to cases involving
interpreters at deportation hearings and identified a two-part test from the
Ninth Circuit asking whether the interpretation was a competent one and, if not,
whether the incompetent interpretation prejudiced the outcome of the
proceeding. See Perez–Lastor v. INS, 208 F.3d 773 (9th Cir. 2000). Based upon
a finding of “numerous instances where words were incorrectly interpreted or
not interpreted at all, where [Posada] appeared to provide unresponsive answers
as a result of his confusion over the questions, and where [Posada] expressed
difficulty understanding what was said to him,” the district court determined
that the interpretation was incompetent. The district court also found prejudice,
explaining that:
No effective communication existed between [Posada] and the
interviewers; they were, so-to-speak, “not on the same page.” [The
interviewers] believed they were asking one question, while
[Posada] thought they were asking another. Even in cases where
only one or two words were interpreted incorrectly, it completely
changed the meaning and tenor of certain questions. . . . [T]he
interpretation is so inaccurate as to render it unreliable as evidence
of [Posada’s] actual statements.
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No. 07-50737
Accordingly, the district court held that Posada’s testimony at the naturalization
interview could not be considered as evidence in any future hearing. It also
suppressed the tapes and transcripts as evidence.
Turning to Posada’s motion to suppress the interview statements on the
basis of the government’s failure to warn of the existence of a criminal
investigation, the district court categorized the concern as one of due process.
After reviewing a number of cases in which the government was alleged to have
acted deceptively in using civil proceedings to obtain documents or statements
for the purpose of a criminal investigation, the district court concluded that in
Posada’s case “the evidence [was] overwhelming that the Government
improperly manipulated the administration of criminal justice in order to secure
a criminal indictment(s) against [Posada].” The district court determined that
“there was no genuine [naturalization] interview and the entire interview was,
instead, a pretext for a criminal investigation,” and further found that the
government engaged in “fraud, deceit, and trickery” by misrepresenting to
Posada the purpose of the questions at the interview. In addition, it found the
government’s tactics “grossly shocking and so outrageous as to violate the
universal sense of justice.” Stating that it was “left with no choice,” the district
court dismissed the indictment.
The government filed timely notice of appeal on June 5, 2007.
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No. 07-50737
II. Standard of Review
The district court’s evidentiary rulings are reviewed for abuse of
discretion. United States v. Guidry, 456 F.3d 493, 501 (5th Cir. 2006). However,
we review de novo the district court’s interpretation of the law. Id.
The decision to dismiss an indictment on due process grounds is reviewed
de novo, United States v. Asibor, 109 F.3d 1023, 1039 (5th Cir. 1997), although
underlying findings of fact are reviewed for clear error, United States v.
Barrera–Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991).
III. Discussion
The government argues that the district court erred in: (1) suppressing
Posada’s statements at the naturalization interview based on a finding that
incompetent translation services were provided by the interpreter; and (2)
dismissing the indictment based on findings of deception and outrageous conduct
on the part of the government. As the latter issue is potentially dispositive of
this appeal, we address it first.
A. Dismissal of the Indictment
“[G]overnment misconduct does not mandate dismissal of an indictment
unless it is so outrageous that it violates the principle of fundamental fairness
under the due process clause of the Fifth Amendment.” Asibor, 109 F.3d at 1039
(citation and internal quotation marks omitted). “Such a violation will only be
found in the rarest circumstances.” Id. (citation and internal quotation marks
omitted). In dismissing the indictment in this case, the district court found that
Posada’s naturalization interview was not a genuine interview but instead was
a pretext for a criminal investigation, and, relatedly, that the government
engaged in fraud, trickery, and deceit by misrepresenting the purpose of the
questions at the interview to Posada. The district court further found the
government’s tactics “so grossly shocking and so outrageous as to violate the
universal sense of justice.”
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No. 07-50737
As a preliminary matter, we agree with the government that the district
court erred in dismissing the portions of the indictment charging Posada with
making false statements on his Form N-400 naturalization application. The
government conduct identified by the district court as the grounds for dismissing
the indictment simply has no relevance to these alleged offenses, which were
completed before USCIS began adjudicating Posada’s application, and long
before the interview itself. Moreover, after carefully reviewing the record in
light of the relevant law, we further agree that the district court erred in
dismissing the remaining portions of the indictment charging Posada with
making false statements at the naturalization interview. As we explain, neither
of the grounds put forward by the district court—grounds which we have loosely
characterized as government deception and outrageous conduct—supports the
drastic remedy of dismissal of the indictment. Before turning to the record,
though, we first examine the relevant law.
1. General Principles
We begin with the well-settled rule that the government may conduct
simultaneous civil and criminal proceedings without violating the due process
clause or otherwise departing from proper standards in administering justice.
See United States v. Kordel, 397 U.S. 1, 11–12 (1970). In Kordel, the FDA, in the
course of an investigation into possible violations of the Food, Drug, and
Cosmetic Act by a corporation and its officers, prompted the initiation of a civil
suit seeking the seizure of some of the corporation’s products. Id. at 3. The
government later used information obtained in this civil proceeding to obtain
criminal misbranding convictions against two of the corporation’s officers.2 Id.
at 6. On appeal of these convictions, the Supreme Court rejected the officers’
2
This point was apparently disputed by the government in Kordel, but for purposes of
its opinion the Supreme Court assumed that the information aided the government in the
criminal prosecution. See Kordel, 397 U.S. at 6 & n.6.
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No. 07-50737
argument that the government’s conduct “reflected such unfairness and want of
consideration for justice” as to require reversal. Id. at 11. Finding no violation
of due process, the Court explained that “[i]t would stultify enforcement of
federal law to require a governmental agency such as the FDA invariably to
choose either to forgo recommendation of a criminal prosecution once it seeks
civil relief, or to defer civil proceedings pending the ultimate outcome of a
criminal trial.” Id.
Notwithstanding this general approval of the practice of conducting
parallel civil and criminal proceedings, the government’s ability to do so is not
wholly unrestrained. This much can be seen in Kordel itself, where the Court
was careful to note what type of case was before it and, in so doing, make it clear
that under some circumstances the government’s use of parallel civil and
criminal proceedings may be improper. As the Court explained, it did “not deal
. . . with a case where the Government has brought a civil action solely to obtain
evidence for its criminal prosecution or has failed to advise the defendant in its
civil proceeding that it contemplates his criminal prosecution; nor with a case
where the defendant is without counsel . . . ; nor with any other special
circumstances that might suggest the unconstitutionality or even the
impropriety of this criminal prosecution.” Id. at 11–12.
Although the Supreme Court has not yet had occasion to re-visit these
issues, our own precedents are instructive. In United States v. Tweel, 550 F.2d
297 (5th Cir. 1977), a case in which improper government conduct of the type
alluded to in Kordel figured prominently, the IRS initiated a tax audit at the
request of the Organized Crime and Racketeering Section of the Department of
Justice as part of a criminal investigation that ultimately led to the taxpayer’s
conviction on various tax fraud charges. Id. at 298–99. When approached by the
IRS revenue agent, the taxpayer’s accountant asked whether a “special
agent”—the type normally involved in criminal investigations—was involved;
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No. 07-50737
the obvious implication of this question was that the accountant wanted to know
whether the audit was criminal in nature. Id. at 298. The revenue agent’s
negative response led the accountant to believe that the audit was merely a civil
one, and the taxpayer thereafter produced records for inspection. Id.
On appeal, the taxpayer argued that those records should have been
suppressed at trial on the basis of government deception. After recognizing the
general rule that “the mere failure . . . to warn the taxpayer that the
investigation may result in criminal charges, absent any acts by the agent which
materially misrepresent the nature of the inquiry, do[es] not constitute fraud,
deceit and trickery[,]” we found that the agent’s response to the accountant’s
question, though technically true, had been intentionally misleading, and that
“the [revenue] agent’s failure to apprise the [taxpayer] of the obvious criminal
nature of this investigation was a sneaky deliberate deception by the agent . . .
and a flagrant disregard for [the taxpayer’s] rights.” Id. at 299 (internal
quotation marks and citation omitted). Accordingly, we held that the records
obtained from the taxpayer should have been suppressed at trial. Id. at 300.
We have continued to rely upon the principles discussed in Tweel in
resolving challenges to the propriety of dual investigations by civil and criminal
branches of a government agency (or dual investigations by separate agencies).
See, e.g., United States v. Blocker, 104 F.3d 720, 729–30 (5th Cir. 1997)
(affirming the denial of a motion to suppress where a state insurance examiner
conducting an audit pursuant to a state administrative scheme had secretly
agreed in advance to furnish any evidence of criminal activity to the FBI because
the examiner did not exceed the scope of his authority under state law and there
was no deception or misrepresentation about the scope or purpose of the audit);
United States v. Powell, 835 F.2d 1095, 1099 (5th Cir. 1988) (same in a tax case
where the civil audit was not initiated with criminal overtones but instead
“grew” into a criminal investigation); United States v. Caldwell, 820 F.2d 1395,
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No. 07-50737
1400 (5th Cir. 1987) (same in a tax case where evidence indicated that the civil
audit was not requested as part of a clandestine criminal investigation); see also
SEC v. ESM Gov’t Sec., Inc., 645 F.2d 310, 311–12, 317 (5th Cir. Unit B 1981)
(holding that government deception is grounds for denying an administrative
subpoena where an SEC investigator failed to disclose the existence of an
investigation and instead obtained access to the company’s records under the
guise of obtaining “education” for himself).
These cases affirm that a government official may not make “material
misrepresentations” about the nature of the investigation or inquiry, Caldwell,
820 F.2d at 1399 (emphasis removed), but show that the burden is on the subject
of the investigation to prove that such misrepresentations were made, see
Blocker, 104 F.3d at 729 & n.11; Powell, 835 F.2d at 1099; Caldwell, 820 F.2d at
1399. And they also demonstrate that we have consistently adhered to the rule,
discussed in Tweel, that the “mere failure” of a government official to warn that
an investigation may result in criminal charges does not constitute fraud, deceit,
or trickery. See, e.g., Blocker, 104 F.3d at 729 & n.11 (stating that there is no
“affirmative duty to warn” and that the subject of investigation must show that
he was intentionally misled); Powell, 835 F.2d at 1099 (“[R]evenue agents have
no duty to inform taxpayers that the agents’ investigations might result in
criminal charges.”).
2. Government Deception
The district court found that “there was no genuine [naturalization]
interview and the entire interview was, instead, a pretext for a criminal
investigation,” and, relatedly, that the government engaged in fraud, trickery,
and deceit by misrepresenting the purpose of the questions at the interview. The
district court identified Tweel as the seminal case in this area, and we likewise
find it a useful place to begin our analysis. Indeed, the decision in Tweel was
grounded in considerations similar to those expressed by the district court in this
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No. 07-50737
case. As we have explained, the government’s conduct in Tweel was
objectionable because “there was no genuine civil audit of the kind represented;
the only audit was a criminal audit specially ordered for [the] particular
taxpayer, and falsely represented as a routine civil audit.” Blocker, 104 F.3d at
729.
With regard to the district court’s determination that the naturalization
interview was merely a pretext for a criminal investigation, Tweel is
distinguishable in at least two significant respects. First, in Tweel the revenue
agent did not advise the taxpayer of his Fifth Amendment rights or warn that
any information submitted by the taxpayer could be used in a criminal
proceeding. Tweel, 550 F.2d at 299–300. As we recognized, though, this was
consistent with the general rule that failing to warn that an investigation may
result in criminal charges, absent affirmative misrepresentation, is not usually
sufficient to constitute government deception. Id. at 299. Here, however, the
government need not seek refuge in this rule because it did warn Posada (in the
presence of Posada’s lawyer) at the beginning of the interview that, among other
things, he could exercise his right against self-incrimination if he thought that
an answer would incriminate him, lying could subject him to criminal penalties,
and any statement he gave could be used in any legal or administrative
proceeding. We think faulty the district court’s reasoning that these warnings
“had little significance” because Posada “did not receive an explanation of the
true import of the Government’s inquiry.”3 As Tweel and subsequent cases make
3
The district court additionally determined that the warnings “had little significance”
as a result of the government’s threats “that exercise of Fifth Amendment rights might result
in termination of the naturalization interview.” This reasoning is incorrect, however, because
immigration officials may draw a negative inference from a naturalization applicant’s silence.
See INS v. Lopez-Mendoza, 468 U.S. 1032, 1043–44 (1984) (“‘[T]here is no rule of law which
prohibits officers charged with the administration of the immigration law from drawing an
inference from the silence of one who is called upon to speak.’” (alterations in original) (quoting
United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153–54 (1923))); United States v.
Alderete-Deras, 743 F.2d 645, 647 (9th Cir. 1984) (stating that in the context of a deportation
18
No. 07-50737
clear, while the government may not make affirmative material
misrepresentations about the nature of its inquiry, it is under no general
obligation of disclosure.
Second, whereas in Tweel the government approached the taxpayer and
made misrepresentations that caused the taxpayer to participate in civil
proceedings that were in fact undertaken entirely for the purpose of a criminal
investigation, in this case it was Posada who, seeking to obtain an immigration
benefit, approached the government and thereby initiated the civil proceedings
at issue. The district court found this a distinction without a difference, but we
disagree. Posada, not the government, triggered with his naturalization
application a civil adjudicatory process that, by regulation, calls for both an
investigation of the applicant and an interview. See 8 C.F.R. § 335.2. It strikes
us as highly incongruous, to say the least, for these proceedings to then be
characterized as a sham engineered by the government. Nonetheless, because
we think it at least possible that under some circumstances civil proceedings
initiated by the non-government party may be rendered pretextual or otherwise
tainted by government misrepresentations, we turn to an examination of the
district court’s specific findings.
In determining that the interview was a pretext for a criminal
investigation, the district court relied upon: (1) the fact that Bolanos “had
already determined that [Posada] was probably not eligible for citizenship but
nonetheless chose to interview him”; (2) the fact that Posada’s application was
hearing an alien’s “refusal to testify may form the basis of inferences against him in the
deportation proceeding”). Our conclusion on this score is influenced by the fact that the
burden of proof is on the applicant in a naturalization proceeding (which is a civil proceeding).
See 8 C.F.R. § 316.2(b). The government did not act improperly in informing Posada, in
accordance with this law, that his silence could be considered in adjudicating his application.
Further, the fact that Posada nonetheless invoked the Fifth Amendment several times during
the interview tends to undercut any argument that, for whatever reason, he felt unable to do
so.
19
No. 07-50737
in part denied based on a determination that the pardon he received did not
eliminate the immigration-law effects of his Panamanian conviction (which was
the basis for Bolanos’s initial determination that he might not be eligible); and
(3) the “anomalous” aspects of the interview, including its length, the fact that
it was taped, and the involvement of two interviewers, an interpreter, and four
attorneys. Although we have no quarrel with these observations strictly as
matters of fact (all are supported by the record), we think the district court
misperceived their significance and, in so doing, erroneously found that the
interview was merely a pretext for a criminal investigation.
First, although Bolanos did testify that when she initially reviewed
Posada’s application and the available materials “it seemed . . . that he might
not be eligible” for naturalization, nothing in the record suggests that this
preliminary determination in any way represented a final adjudication of
Posada’s application or otherwise obviated the need for an interview. As the
government points out, it would be a harsh practice indeed to deny an interview
to an applicant because a preliminary review of his application reveals that he
might be ineligible. The regulations as well as the Form N-400 both seem to
contemplate that, consistent with Bolanos’s testimony, the very purpose of the
interview, at least in part, is to give the applicant the opportunity to correct
mistakes in the application and to clarify or respond to any issues that the
examiner might have identified during the preliminary investigation.4
4
The parties dispute whether a naturalization application may ever be denied without
conducting an interview. We need not decide this issue, although we do note that the
regulations plainly state that “each applicant shall appear in person before a Service officer
designated to conduct examinations . . . .” 8 C.F.R. § 335.2(a). It is enough for our purposes
to observe that Posada’s Form N-400 raised issues that required clarification and explanation
before his application could be finally adjudicated, and that providing this clarification and
explanation is precisely the point of the interview. For example, Posada explained in an
addendum to his Form N-400 that he had been “arrested . . . in Panama under the charge of
Collective Safety and Collective endangerment,” and received a presidential pardon. However,
he offered no explanation for why this charge was filed or what the offense of “Collective Safety
and Collective endangerment” constitutes, information that would be necessary to determine
20
No. 07-50737
Second, the district court read too much into the fact that Posada’s
application was ultimately denied, in part, on the ground that the pardon
received from the president of Panama was not effective to remove the
immigration-law consequences of his conviction. As the denial letter from
USCIS indicates, the effect to be given a foreign pardon in the context of
naturalization proceedings was not entirely clear. The letter explains that
foreign pardons had long been held ineffective in the removal context, but also
notes that the regulatory language governing pardons in the naturalization
context differs from the statutory provision governing pardons in the removal
context.5 Although USCIS ultimately determined that foreign pardons should
be treated the same in the removal and naturalization contexts, the careful
consideration USCIS gave this issue belies any notion that the naturalization
proceedings were a sham.
Third, we agree with the government that the aspects of the naturalization
interview identified as “anomalous” by the district court—its duration, the
presence of multiple attorneys and an interpreter, and the fact that it was
taped—do not demonstrate that the interview was merely a pretext for a
criminal investigation. We first note that several of the supposedly “anomalous”
items are actually contemplated by immigration regulations, albeit as optional
features of the interview. See 8 C.F.R. § 335.2(a) (applicant may request the
presence of an attorney); § 335.2(c) (interview may be taped); § 335.2(f)
(providing for use of interpreter). More to the point is the undeniable fact that,
given his history and notoriety, Posada was a highly unusual applicant. There
whether the charge creates a statutory bar to naturalization.
5
Indeed, this difference in language seems to cut in favor of the argument that pardons
should be treated differently in naturalization proceedings. The removal statute specifically
refers to a pardon “by the President of the United States or by the Governor of any of the
several States,” 8 U.S.C. § 1227(a)(2)(A)(vi), while the regulation governing pardons in the
naturalization context makes no such distinction, see 8 C.F.R. § 316.10(c)(2).
21
No. 07-50737
is simply no reason to expect his naturalization interview to approximate that
of a “typical” applicant. Indeed, Bolanos, who specializes in cases that may
involve fraud or national security, was apparently assigned to Posada’s
application precisely because he was an extraordinary applicant. To give just
two examples, we would venture to guess that USCIS does not often receive
applications from individuals who, like Posada, admit to having “advocated . . .
the overthrow of [a] government by force or violence” and claim an affiliation
with the CIA. But these matters were just the tip of the iceberg when it came
to Posada’s application, and it is thus entirely unsurprising that his
naturalization interview was atypical in the ways identified by the district court.
More broadly, nothing in the record suggests that the naturalization
interview was anything other than a bona fide examination conducted in
accordance with the applicable regulations. The form of the interview certainly
conformed to those regulations. From the digital copy of the interview tapes it
is apparent that at the beginning of the interview Posada was shown his Form
N-400 and given the opportunity to consult with his attorneys and make any
necessary corrections before the substantive portion of the interview began.
After briefly discussing these corrections, Bolanos then started the process of
going over the questions on the application with Posada and asking additional
questions to clarify or fill out the record. This pattern began with the questions
relating to basic biographical information (e.g., name, date of birth, social
security number, citizenship status, marriage and family status) and continued
over the course of the interview as Bolanos moved through the application—in
many instances repeating the questions verbatim as they appear on the Form
N-400—and solicited additional information as necessary.6 Finally, at the
6
To take just one example, at one point Bolanos asked if Posada had ever given false
or misleading information to any U.S. government official while applying for immigration
benefits or to prevent deportation, exclusion, or removal, a question that appears on the Form
N-400 and to which Posada had checked the “yes” box. In the interview, Posada averred that
22
No. 07-50737
conclusion of the interview, Posada initialed the additional corrections to the
Form N-400 that had been made during the course of the interview and, in
accordance with the regulations, signed his name in the presence of Bolanos.
Nor did the questions posed by the government during the interview
exceed the legitimate scope of inquiry delineated by the regulations. The district
court suggested the opposite when it found that the government made
misrepresentations to Posada about the purpose of the interview in response to
objections raised at the interview by Posada’s attorneys. In response to these
objections, which charged that several lines of inquiry opened by the government
were outside the scope of the naturalization proceedings because they related to
events that occurred outside the “statutory period” for which a naturalization
applicant is required to demonstrate good moral character,7 Bolanos repeatedly
stated that the questions were being asked for purposes of the record and that
Posada’s answers would be used to adjudicate his application. With these
statements clearly in mind, the district court found that:
[T]he Government engaged in fraud, deceit, and trickery when it
misrepresented to [Posada] that the purpose of asking him such
extensive questions about his means of entry into the United States,
his conduct in Panama and Venezuela, and his use of various aliases
and passports was merely to “clarify the record.” The Court ponders
exactly which record the Government sought to clarify. The
Government did not merely ask him questions directed towards a
moral character determination. They questioned him extensively
about bombings and other violent activities. The mere fact that
he had given false information by lying to an immigration officer shortly after arriving in the
United States. Bolanos followed up on this answer by asking when this had occurred, and in
the ensuing discussion the circumstances of the incident were fleshed out. When the subject
had been exhausted, Bolanos moved to another question from the Form N-400, and the
interview continued in this vein.
7
Naturalization applicants are required to establish good moral character for a
“statutory period” of five years preceding the date of filing the application as well as the period
from the date of filing to admission to citizenship. See 8 U.S.C. § 1427(a); 8 C.F.R. § 316.10.
23
No. 07-50737
they had to question him about bombings belies the argument that
this was a routine naturalization interview.
Here the district court seems to have taken the view that questions about
Posada’s means of entry into the United States, his “conduct in Panama and
Venezuela” (presumably his alleged involvement in the 1976 Cuban airliner
bombing and a plot to assassinate Fidel Castro), and his use of various aliases
and passports were irrelevant to adjudicating his naturalization application
(and, specifically, irrelevant to the moral character determination), and that
Bolanos’s assertions to the contrary during the interview were, therefore,
misrepresentations. This was error.
Preliminarily, it is important to note that though the naturalization
applicant’s burden is only to demonstrate good moral character during the
statutory period—roughly the preceding five years, see 8 C.F.R. § 316.10(a)(1)—it
does not follow that the applicant’s conduct outside the statutory period lies
beyond the scope of the moral character determination. The regulations
expressly provide that USCIS:
is not limited to reviewing the applicant’s conduct during the five
years immediately preceding the filing of the application, but may
take into consideration, as a basis for its determination, the
applicant’s conduct and acts at any time prior to that period . . . if
the earlier conduct and acts appear relevant to a determination of
the applicant’s present moral character.
Id. § 316.10(a)(2). Thus, the government was clearly within its rights to inquire
into matters relevant to the moral character determination even though they
may have occurred outside of the statutory period for which the applicant bears
the burden of proof.
More to the point, though, the inquiries found objectionable by the district
court were all manifestly relevant to the adjudication of Posada’s naturalization
application and the moral character determination. No explanation is required
24
No. 07-50737
for the proposition that the government’s questions about “bombings and other
violent activities” were relevant to Posada’s moral character. With regard to
Posada’s entry into the United States, the government was aware of reports
tending to indicate that he had entered by sea into Miami aboard the Santrina,
and thus it had reason to believe that he had lied to immigration officials at the
May 21, 2005, interview, where he claimed otherwise. It follows that the
government was justified in inquiring into this subject at the naturalization
interview, because whether Posada lied to immigration officials is relevant to
both the moral character determination and the specific questions on the Form
N-400 that ask if the applicant has ever “given false or misleading information
to any U.S. government official while applying for any immigration benefit or to
prevent deportation, exclusion, or removal” or “lied to any U.S. government
official to gain entry or admission into the United States.” The government’s
inquiry into Posada’s use of aliases and passports was similarly justified. The
Form N-400 specifically asks the applicant to list all other names used; among
other things, this information obviously facilitates the government’s
investigation into the applicant’s background. And since the government also
had reason to believe that Posada had not in fact listed all of the names he had
used (owing to the discovery of the Guatemalan passport at the Caribe
Foundation offices in Miami), whether he had lied or misled immigration
officials about this issue was also relevant.
Thus, there simply is no basis for the district court’s conclusion that the
government misrepresented to Posada the purpose of asking him certain
questions at the interview. Bolanos told Posada that the questions were being
asked for purposes of the record and in order to adjudicate Posada’s application,
and she further asserted that the government had the right to inquire into
conduct outside the statutory period in making the moral character
determination. Because the regulations make clear that the government did
25
No. 07-50737
have the right to inquire into these matters, which we agree were entirely
relevant to adjudicating Posada’s application, there is no basis in the record to
find that the government misrepresented the purpose of the questions at the
interview.
Finally, we note that apart from the actual interview proceedings
themselves, the district court also found the Department of Justice’s involvement
in this case “suspicious.” Specifically, the district court noted that Bolanos met
with an attorney from the Department of Justice (along with attorneys from the
Department of Homeland Security) prior to Posada’s naturalization interview,
and that everyone at this meeting “reviewed” the questions to be asked at the
interview. But there is nothing inherently improper about this type of contact,
especially given that the regulations governing naturalization proceedings
expressly require USCIS to coordinate with outside law enforcement
entities—including the FBI, an arm of the Department of Justice—in the course
of investigating an applicant. See 8 C.F.R. § 335.1 (investigation to include,
among other things, “police department checks”); § 335.2(b) (interview to occur
only after completion of criminal background check by the FBI). Nor is there
anything in the record that would allow us to conclude that the contact in this
case was improper. Posada suggests that the “Government” (apparently the
FBI) should not have provided USCIS with documents from criminal
investigations relating to Posada’s entry into the United States and the 1997
string of bombings in Havana (from the record it appears that the FBI provided
at least one document related to the Havana bombings), but again, this is
cooperation of the sort that is expressly contemplated by immigration
regulations. It does not amount to government deception or misconduct.
3. Outrageous Conduct
After determining that the government’s conduct was deceptive, the
district court additionally found the government’s tactics “so grossly shocking
26
No. 07-50737
and so outrageous as to violate the universal sense of justice.” Insofar as this
finding refers to conduct of the government other than the conduct that we have
already discussed and determined not to have been improper, we note that to
demonstrate outrageous government conduct Posada needs to “show government
overinvolvement combined with a passive role by [himself].” Asibor, 109 F.3d at
1039. Outrageous conduct will not be found when “the defendant is an active,
willing participant in the criminal conduct that leads to his arrest . . . .” Id.
“Such a violation will only be found in the rarest circumstances.” Id. (citation
and internal quotation marks omitted).
Here there can be no doubt that Posada was an active, willing participant
in the conduct for which he was charged with a crime. Posada submitted the
allegedly false Form N-400 and was a willing participant in the naturalization
interview in which he is alleged to have made false statements. There is no
basis for a finding of outrageous conduct here.
B. Suppression of the Interview Statements
We next consider the district court’s decision to suppress Posada’s
statements at the naturalization interview. Applying due process principles, the
district court suppressed these statements on the basis that the translation
provided by the interpreter at the interview was incompetent, and that this
incompetent translation resulted in prejudice to Posada.
The government first challenges this ruling by arguing that due process
considerations do not apply in this case and that Posada had no right to a
competent interpreter at the interview. The district court concluded otherwise,
by analogizing to a case involving the use of an interpreter in deportation
proceedings, and determined that “the presence of a competent interpreter was
. . . critical to the fairness of the naturalization interview because the interpreter
was provided by the Government and the statements made later served as the
basis for [Posada’s] indictment.” The government, arguing that these concerns
27
No. 07-50737
are misplaced, cites a Second Circuit decision for the proposition that there is an
“important distinction” between removal proceedings and interviews to
adjudicate an immigration benefit; namely, that in the latter situation the
individual has affirmatively petitioned for a benefit. See Abdullah v. INS, 184
F.3d 158, 165 (2d Cir. 1999) (assuming that due process protections apply but
noting that applicants for special agricultural worker status, i.e., an
immigration benefit, face the government in a posture similar to immigrants
applying for admission at the border, who have no constitutional rights in
connection with their application).
In the end, we need not decide whether or to what extent due process
considerations apply in naturalization proceedings, because we agree with the
government that the crux of the district court’s decision, though couched in due
process terms, ultimately lies elsewhere. Specifically, the district court’s concern
seems to have been that incompetent translation at the naturalization interview
rendered ambiguous the communications between the government and Posada
and caused Posada to misunderstand the questions posed to him. Indeed, this
much can be seen in the district court’s explanation that Posada suffered
“prejudice” because the interviewers “believed they were asking one question,
while [Posada] thought they were asking another”; and because “[n]o effective
communication existed between [Posada] and the interviewers; they were, so-to-
speak, ‘not on the same page.’”8
8
Along the same lines, in a discussion of the deficiencies it identified in the translation
provided by the interpreter, the district court noted instances where it found that: “the use of
the wrong words and/or addition of words . . . . caused severe confusion during the interview”;
“the question that the interviewer asked [was] not the question that [Posada] answered”; there
was a “break-down in communication between Bolanos and [Posada]”; there was a “line of
questioning that was confusing”; the interpreter “interpreted his own version of [a] statement
[that] did not represent the spirit of the conversation”; and “[t]here [was] no guarantee that
[Posada] understood the question being asked.”
28
No. 07-50737
This is, at bottom, a false statements case. In such cases, it is not
uncommon for a defendant to argue that because of some ambiguity or
uncertainty in the question he is alleged to have answered falsely, his
understanding of the question differed from that of the government (thus
making the evidence insufficient to prove an essential element of the offense,
usually some variation of the requirement that the statement was false and that
the defendant knew it to be false). See United States v. Bell, 623 F.2d 1132, 1136
(5th Cir. 1980) (collecting cases). In these circumstances, the rule is that “the
defendant’s understanding of the question is a matter for the jury to decide,”
subject to an exception for cases where “‘a reasonably minded jury must have a
reasonable doubt as to the existence of the essential elements of the crime
charged.’” Id. (quoting United States v. Reynolds, 511 F.2d 603 (5th Cir. 1975)).
This exception is a narrow one. “It is only in exceptional cases that a question
is so ambiguous, fundamentally ambiguous, such that no answer can be false as
a matter of law. If there is no fundamental ambiguity, the jury resolves any
ambiguities.” United States v. Damrah, 412 F.3d 618, 627 (6th Cir. 2005).
We see no reason why our analysis here should not be guided by this
general approach. The district court’s finding that the interviewers asked one
question but Posada answered a different one, as well as its finding that Posada
and the interviewers were “not on the same page,” seem to us in substance
nothing less than a determination that, due to the vagaries of translation,
Posada did not understand the questions put to him. And by ordering Posada’s
statements suppressed entirely, instead of allowing the jury to consider them,
the district court essentially concluded that, as a matter of law, Posada’s
answers could not form the basis for a false statements conviction. To borrow
the phrase employed by the Sixth Circuit, the district court found fundamental
ambiguity.
29
No. 07-50737
Posada’s argument that Bell and other similar cases are distinguishable
because they did not involve pre-trial challenges to the reliability of an
interpreter’s translation is unavailing. This case is different in that the
misunderstanding is thought to have arisen out of errors in translation rather
than, say, the use of unclear language in phrasing the question, as might occur
in the usual case. But it does not follow that the basic standards for determining
whether fundamental ambiguity exists should not apply. In fact, in considering
and rejecting a claim that translation errors rendered the questions and answers
at issue in a false statements case “fatally ambiguous,” the Second Circuit
appears to have hewn quite closely to the standards we have discussed above.
See United States v. Moon, 718 F.2d 1210, 1240–41 (2d Cir. 1983). We see no
reason not to do so here as well.
In suppressing Posada’s statements at the interview, the district court
found numerous instances where words were incorrectly interpreted, where
Posada appeared to be confused over questions and provide unresponsive
answers, and where Posada expressed difficulty understanding what was said
to him. A few examples of the deficiencies identified by the district court will
suffice. At one point Posada was asked, in English, “But, from the time you were
released from jail in Panama until you entered Mexico in March 23rd or 24th,
you haven’t been to Mexico?” The district court determined that the question
put to Posada in Spanish by the interpreter, however, was a slightly different
one: “Then, from the time you had been freed in Panama until you entered
Mexico – 23rd or 24th of March, you had never been to Mexico prior to that
date?” This, the district court observed, “could potentially cause numerous
problems with respect to a time line and the Government’s theory as to how
[Posada] entered the country.”
Posada was later asked, in English, “[A]fter you’d been arrested in
Panama, did you ever tell any government officials that you had abandoned a
30
No. 07-50737
plan to detonate a car bomb in Panama?” The district court determined that the
interpreter changed the meaning of this question by inserting a reference to the
“North American” government. And at another point, the district court
determined, the interpreter similarly injected an issue into a question that asked
whether Posada had ever received passports from any other country by
translating the question to ask whether Posada had received any passports from
another country that were not legal.
The problem with the district court’s analysis is that it failed to
concentrate on the particular questions or line of questioning that led to the
statements charged as false in the indictment. Our caselaw makes clear that
although it is of course proper to consider the allegedly false statement “in the
context in which it was given,” it is still necessary to focus on the “crucial
question and answer.” Bell, 623 F.2d at 1136, 1137. This is consistent with the
practice in other circuits. See, e.g., United States v. Reilly, 33 F.3d 1396, 1418
(3d Cir. 1994) (reviewing specific question-and-answer exchange underlaying
false statement charge); Moon, 718 F.2d at 1239–41 (reviewing several specific
exchanges in which false statements were alleged).
The Second Circuit’s decision in United States v. Moon is particularly
instructive in this regard. It demonstrates that translation errors apart from
the critical question and answer, even if occurring in close proximity thereto, do
not infect the crucial question and answer with ambiguity absent some special
relationship. In Moon, the defendant challenged the questions and answers that
led to his conviction on several counts of perjury as “erroneously translated and
fatally ambiguous.” 718 F.2d at 1239. With regard to one allegedly false answer
to a question, the defendant argued that his immediately preceding two answers
“were inaccurately translated and somehow cast the third answer in a
misleading context.” Id. at 1240. The court rejected this argument, reasoning
that “[e]ven assuming inaccuracies with respect to the interpretation of the first
31
No. 07-50737
two answers, we fail to see any relationship between them and the third answer,
the one alleged to be false.” Id. at 1240–41.
It was not permissible for the district court to suppress Posada’s
statements at the interview unless translation errors affected the crucial
questions and answers relevant to the false statements charged in the
indictment in such a way that these statements, as a matter of law, may not
form the basis for a false statements conviction. Otherwise the matter of
Posada’s understanding of the questions should have been left to the jury. See
Bell, 623 F.2d at 1136. As we have explained, this question is to be removed
from the jury only when “‘a reasonably minded jury must have a reasonable
doubt as to the existence of the essential elements of the crime charged.’” Id.
(quoting Reynolds, 511 F.2d 603 (5th Cir. 1975)) (emphasis added). This point
is reached “when it [is] entirely unreasonable to expect that the defendant
understood the question posed to him.” Reilly, 33 F.3d at 1416 (internal
quotation marks omitted, brackets in original). “A question is not fundamentally
ambiguous simply because the questioner and respondent might have different
interpretations.” United States v. Culliton, 328 F.3d 1074, 1079 (9th Cir. 2003).
Given this high threshold, the record simply does not support a finding of
fundamental ambiguity. Or, put another way, there is no basis to conclude that,
as a matter of law, Posada could not have understood the particular questions
or lines of questions that led to the statements charged as false. Below we
examine the relevant portions of the interview as they pertain to the various
false statements charged in the indictment. We clarify that we do not hold here
whether Posada did in fact understand the questions; indeed, he may wish to
argue to the jury that for some reason he did not and, therefore, that his answers
are not false statements within the meaning of the relevant statutes. We simply
think that this is a matter for the jury to decide.
32
No. 07-50737
The indictment charges that Posada falsely stated that he never had any
type of documentation, passport, or identification from Guatemala. The district
court identified no translation errors in the portion of the interview relating to
this topic, and we see nothing that would suggest that Posada did not
understand the relevant questions. The interviewer asked, “Guatemala, have
you ever had a passport from Guatemala?” This was translated as, “Guatemala,
¿usted tuvo un pasaporte de Guatemala?” Posada replied, “No.” The interviewer
later asked, “Nothing from Guatemala, ever?” This was translated as “Nunca,
ningun de Guatemala,” to which Posada replied, “Que yo recuerdo, no,” or, in
English, “That I remember, no.” There is nothing fundamentally ambiguous
about this exchange.
The indictment also charges that Posada falsely stated that he never saw
the Santrina while traveling to the United States in March 2005 and that he
never saw several individuals on board the ship at that time. From the
discussion immediately preceding the crucial questions and answers on this
point it is clear that Posada was aware of reports that he had arrived into Miami
aboard the Santrina, and was also aware that Castro had made statements to
that effect. Posada was then asked, “When you were in Mexico, did you ever see
the Santrina?” This was translated as, “¿Cuando usted estuvo en Mexico, usted
vio el Santrina?” Posada replied, “No.” The topic of discussion then turned to
the various other individuals that the government believed were aboard the
Santrina with Posada. After these individuals were named, Posada was asked,
“Did you see them at all while you were in Mexico?” This was translated as,
“¿Cuando usted estuvo en Mexico usted alguna vez a estata personas las vio?”
Posada replied, “No.” Again, there is no basis for concluding here that, because
of translation errors or otherwise, Posada could not have understood these
questions as a matter of law.
33
No. 07-50737
The same can be said about the questions and answers relevant to the
indictment’s charge that Posada falsely stated that he was never in Cancun or
Isla Mujeres when traveling to the United States in March 2005. Posada was
asked, “Were you ever, in the trip to the United States in March of 2005, were
you ever in Cancun?” This was translated as, “En el viaje que usted hizo a los
Estados Unidos en marzo de 2005, ¿usted estuvo en Cancun?” Posada answered,
“No.” He was then asked, “Were you ever in Isla Mujeres?” Again he answered,
“No.”
Finally, the indictment charges that Posada falsely claimed to have
entered the United States in March 2005 in Texas. This topic was thoroughly
discussed at the interview, and at points errors in translation seemed to have
caused some confusion over the “timeline” of this trip (as noted by the district
court). But the ambiguity, if any, concerning the statements relating to Posada’s
manner of entry into the United States falls far short of fundamental ambiguity,
as in other instances Posada seems to have clearly understood the significance
of the government’s questions. For example, Posada was asked when he had last
entered the United States (“La ultima vez que usted entro aqui a los Estadoes
Unidos, ¿cuando fue?”). He responded, “In marzo, creo, en marzo del ano 2005,”
meaning, “In March, I believe, in March of the year 2005.” Shortly thereafter,
after Posada indicated that this was around the 17th or 18th of March, he was
asked, “And when you came to the United States in March 17th or 18th, where
did you enter?” This was translated as, “Cuando usted se vino a Estados Unidos
en marzo 17 o 18, ¿por donde usted entro a los Estados Unidos?” In response,
Posada indicated that he entered through Matamoros (which is, of course, on the
Texas border).
In sum, the district court erred in suppressing Posada’s statements at the
interview because it did not focus on the specific questions and answers relevant
to the false statements charged in the indictment. And since there is nothing
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No. 07-50737
fundamentally ambiguous about these questions and answers (whether by
reason of faulty translation or otherwise), they should not have been suppressed.
IV. Conclusion
For the foregoing reasons, the dismissal of the indictment in this case is
REVERSED and the suppression of Posada’s statements at the naturalization
interview is REVERSED. This case is REMANDED for further proceedings
consistent with this opinion.
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