United States v. Fernandez-Ventura

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 97-1254



                                    UNITED STATES,



                                      Appellant,



                                          v.



                   AMADO FERNANDEZ-VENTURA AND MILAGROS A. CEDE O,



                               Defendants - Appellees.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Jos  Antonio Fust , U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                Lynch, Circuit Judge,
                                       _____________



                  Hill* and John R. Gibson,** Senior Circuit Judges.
                                              _____________________



                                _____________________



               Demetra Lambros, Attorney, Department of Justice,  with whom
               _______________

          Guillermo  Gil,   United  States  Attorney,  Antonio   R.  Baz n,
          ______________                               ___________________

          Assistant  United States  Attorney,  and Nina  Goodman, Attorney,
                                                   _____________

          Department of Justice, were on brief for appellant.

               Linda Backiel, with  whom Gregorio Lima and  Carlos Ram rez-
               _____________             _____________      _______________

          Fiol were on brief for appellees.
          ____


____________________



                                   January 6, 1998

                                 ____________________

                              
          ____________________



          *  Of the Eleventh Circuit, sitting by designation.



          **  Of the Eighth Circuit, sitting by designation.



JOHN R. GIBSON,  Senior Circuit Judge.   Once again the
                    JOHN R. GIBSON,  Senior Circuit Judge
                                     ____________________



          appeal  of the  United States  in  the case  of Amado  Fern ndez-



          Ventura and Milagros  Cede o is before us.  Fern ndez-Ventura and



          Cede o were indicted for failing to declare currency in excess of



          $10,000 brought into  the United States, 31  U.S.C.     5316  and



          5322 (1994), and  for making false statements in  a matter within



          the  jurisdiction of the United States Customs Service, 18 U.S.C.



              1001 (1994).   Their motions to  suppress statements they had



          made to the Customs officers at San Juan's international  airport



          were  granted on  the  ground  that they  had  been subjected  to



          custodial interrogation without the benefit of Miranda1 warnings.
                                                         _______



          We reversed the district court, United States v. Ventura, 85 F.3d
                                          _____________    _______



          708 (1st Cir. 1996) (Ventura I), and remanded for reconsideration
                               _________



          under the proper legal  standard.  The district court  reexamined



          the  record in  light of  our  opinion and  again suppressed  the



          evidence for failure  to comply with Miranda.   The United States
                                               _______



          appeals, and we again reverse.



                    Fern ndez-Ventura  flew from  St. Maarten,  Netherlands



          Antilles,  to San Juan,  Puerto Rico on  November 12,  1994.  The



          Customs Service  had Fern ndez-Ventura's name  on a  computerized



          "lookout" list,  due  to  his frequent  travel  between  the  two



          cities.  After  Fern ndez-Ventura  cleared  immigration,  Customs



          inspector  Rose  Espada   sent  him  to  the   secondary  Customs



          inspection  area,  where  Customs  officers  Eugene  Fischer  and



          Richard  Rausch interviewed him  and searched his  bags.  Officer

                              
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          1  Miranda v. Arizona, 384 U.S. 436 (1966).
             _______    _______



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Fischer asked Fern ndez-Ventura whether he was bringing more than



          $10,000  cash into the United States, and Fern ndez-Ventura said,



          "No."  He said he had about $8,000.



                    Meanwhile,  Officer Rausch  found  women's clothing  in



          Fern ndez-Ventura's bag and asked him  why he had it.  Fern ndez-



          Ventura replied that the clothing belonged to his "mujer" ("wife"



          or "woman"),  who was traveling  with him.  The  inspectors asked



          Fern ndez-Ventura where she was, and he took Fischer to find her.



          Milagros  Cede o,  Fern ndez-Ventura's  girlfriend,  had  already



          cleared  the  check point  and  was  waiting inside  the  Customs



          enclosure.    Fern ndez-Ventura  beckoned  to   Cede o,  and  she



          returned with  Fischer  and Fern ndez-Ventura  to the  inspection



          area.  As they walked, Fischer asked Cede o if she had  more than



          $10,000  in cash,  and she  replied  that she  had about  $9,000.



          Rausch searched Cede o's purse and found $9,500.



                    Rausch then  contacted a supervisor, H ctor  Alvino, to



          ask for  permission to  search Fern ndez-Ventura.   Rausch  found



          $6,666 in cash on Fern ndez-Ventura.  Alvino then became involved



          in the questioning.  Alvino asked Fern ndez-Ventura who owned the



          $6,666,  and Fern ndez-Ventura replied that the money belonged to



          his  money exchange  company.   Alvino then  asked who  owned the



          $9,500 in  Cede o's possession,  and Fern ndez-Ventura said  that



          money also  belonged to the company.  Fern ndez-Ventura said that



          he was president of the company.2  Alvino then sent for a special

                              
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          2  Though Fern dez-Ventura and Cede o each had less than $10,000,

          the government contends that all  the money belonged to one owner

          and is therefore aggregated.  United States v. Fern ndez-Ventura,
                                        _____________    _________________



                                         -3-



agent to  arrest Fern ndez-Ventura.   The  agent told  Fischer to



          read  Fern ndez-Ventura and  Cede o their  rights.   They  signed



          Miranda waiver cards.
          _______



                    The district court  initially suppressed the statements



          made after  Fischer asked Cede o  if she was carrying  any money.



          United States v.  Ventura, 892 F. Supp. 362,  369 (D. Puerto Rico
          _____________     _______



          1995).  The district court held that, since Fern ndez-Ventura and



          Cede o were not free to  leave the interview, they were therefore



          in  custody and  entitled to Miranda  warnings. The  court wrote,
                                       _______



          "Customs is  an inherently  coercive environment."   Id.  at 367.
                                                               ___



          The district court also relied on the officers' state of mind and



          their belief that they had a "promising theory of guilt."  Id. at
                                                                     ___



          369.



                    We reversed, holding  that the district court  erred in



          concluding  that  Fern ndez-Ventura  and Cede o  were  in custody



          because they could not leave.  We held:



                      Individuals  subject  to  routine traffic

                      stops     or     customs     inspections,

                      circumstances  which  are  not custodial,

                      are rarely  free  to  leave  while  being

                      questioned by  an officer.   The relevant

                      inquiry, however, . .  . is whether there

                      was an arrest or restraint on freedom  of

                      movement of the  degree associated with a

                      formal arrest.



          Ventura I, 85 F.3d at 712.   We further stated that the  district
          _________



          court  erred  in considering  the  officers' focus  on Fern ndez-



          Ventura and Cede o, which was not relevant to a Miranda inquiry.
                                                          _______


____________________



          892 F. Supp. 362, 370 (D. Puerto Rico 1995).



                                         -4-



On remand,  the district  court reexamined the  custody



          issue,   looking  at  three  factors:  (1)   the  nature  of  the



          surroundings   and  the  extent   of  police  control   over  the



          surroundings; (2) the degree of physical restraint  placed on the



          suspect; and (3) the  duration and character of the  questioning.



          United  States v. Ventura,  947 F. Supp.  25, 29 (D.  Puerto Rico
          ______________    _______



          1996).    The district  court  held  that  the surroundings  were



          indicative of custody because the officers sent Fern ndez-Ventura



          straight  to secondary  inspection  without  first going  through



          primary  inspection,  and  because  there  were  "four  uniformed



          officers  with the  defendants at  all  times, two  of whom  were



          armed."  Id. at 30.   The court conceded that  neither Fern ndez-
                   ___



          Ventura nor Cede o was physically  restrained, but held that  the



          second  factor nevertheless weighed  in favor of  custody because



          "they were  unaware of  any ability  to leave  and  were in  fact



          unable to leave."   Id.  Moreover,  the court considered it  very
                              ___



          important  that Cede o  had  already  cleared  Customs  when  the



          officers asked her to  return.  Id.  Finally, the  court held the
                                          ___



          duration  of the questioning,  approximately one hour  and twenty



          minutes,  was  indicative of  custody.    Id.   The  court  again
                                                    ___



          suppressed  the statements made after  Cede o was returned to the



          inspection area.  Id. at 31.
                            ___



                    The district  court's conclusion  that a  person is  in



          custody is a mixed  question of fact and law, subject  to de novo



          review.  Thompson  v. Keohane, 116 S.  Ct. 457, 460 (1995).   The
                   ________     _______



          district  court's  findings  of  historical  fact concerning  the


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circumstances  of the interrogation are reviewed for clear error.



          See Ornelas v.  United States, 116 S. Ct. 1657, 1663 (1996).  The
          ___ _______     _____________



          ultimate question  is  whether  there was  "a  formal  arrest  or



          restraint on freedom of movement  of the degree associated with a



          formal arrest."  Thompson, 116  S. Ct. at 465 (internal quotation
                           ________



          omitted).  The  test is not applied mechanically,  but in view of



          the totality of the circumstances.  See id. at 466.   We conclude
                                              ___ ___



          that the district court once again applied this test erroneously.



                    The most significant circumstance is that this incident



          occurred in  the course of  a Customs inspection at  our nation's



          border.  In the context of Customs inspections, our assessment of



          whether an interrogation  is custodial must take into account the



          strong governmental  interest in  controlling our  borders.   See
                                                                        ___



          United  States v.  Moya, 74  F.3d  1117, 1119  (11th Cir.  1996).
          ______________     ____



          "[Q]uestions from [Customs]  officials are especially  understood



          to be a necessary and important routine for travelers arriving at



          American  entry  points.   This  understanding  cuts  against the



          potentially coercive aspect  of the Customs inquiry,  and lessens



          the need  for  Miranda warnings."    Ventura I,  85 F.3d  at  711
                         _______               _________



          (citations  omitted).  The Eleventh Circuit has stated, "[E]vents



          which might  be enough to  signal 'custody' away from  the border



          will not be enough to establish 'custody' in the context of entry



          into he country."  Moya, 74 F.3d at 1120.
                             ____



                    In its  conclusion that the surroundings  suggested the



          defendants  were  in  custody, the  district  court  placed great



          reliance on the fact that the officers skipped primary inspection


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and  took Fern ndez-Ventura directly to secondary inspection.  We



          said in Ventura I that "even secondary inspection does not per se
                  _________                                          ______



          constitute custodial  interrogation."   83 F.3d  at 711.   Accord
                                                                     ______



          United States v. Pratt, 645 F.2d 89, 90 (1st Cir.), cert. denied,
          _____________    _____                              ____________



          454 U.S. 881  (1981); Moya,  74 F.3d  at 1120.   Since  secondary
                                ____



          inspection is  not innately custodial,  we fail to see  how going



          directly to  secondary  inspection  makes  the  questioning  more



          coercive.  As  a practical matter, this likely  reduces the total



          time  the traveler  has  to  spend in  Customs,  which makes  the



          questioning less coercive, not more.



                    The  district court's opinion on remand stated that the



          surroundings were  coercive  because "there  were four  uniformed



          officers with the defendants at all times."  947 F. Supp.  at 30.



          The government pointed out that the officers were not all present



          simultaneously.   Espada delivered  Fern ndez-Ventura to  Fischer



          and Rausch, and  then left.  Fischer went  with Fern ndez-Ventura



          to  get Cede o, and  as the three  of them walked,  Fischer asked



          Cede o  what cash  she was  carrying.   After  Fischer found  the



          $9,500 on  Cede o, Alvino  appeared on the  scene.   The district



          court   changed  its  opinion  on  reconsideration  to  say  that



          Fern ndez-Ventura and  Cede o  were  "guarded  by  four  officers



          during the course of this incident," 947 F. Supp. at 32 (emphasis
          __________________________________



          added), but  the court did  not change its conclusion  that there



          were too many officers.  We  conclude that the early  involvement



          of Espada was inconsequential.   The presence of the three others



          is  not so  unusual as  to convert  a Customs inspection  into an


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arrest.   See United  States v. Tajeddini,  996 F.2d  1278, 1281,
                    ___ ______________    _________



          1288   (1st  Cir.  1993)  (three  Customs  officers  present;  no



          custody); United States v. Park, 947 F.2d 130, 132-33, 138 (1991)
                    _____________    ____



          (same), vacated in  part on other grounds, 951 F.2d 634 (5th Cir.
                  _________________________________



          1992).



                    The district court also emphasized the fact that Alvino



          and Espada were armed. The court conceded on reconsideration that



          "guns were not drawn" during the  incident.  947 F. Supp. at  32.



          The  testimony at  the hearing  was that  Espada and  Alvino were



          required to  be armed  as part of  their jobs.   The  presence of



          armed officers  in this case  was simply  a part  of the  Customs



          routine and not an extraordinary circumstance.



                    Though  the  district  court conceded  that  Fern ndez-



          Ventura and Cede o were  not subjected to physical restraint,  it



          resolved the physical restraint factor against the government for



          three reasons: (1) the two were "in fact unable to leave," id. at
                                                                     ___



          30; (2)   Fern ndez-Ventura was  subjected to a  pat-down search,



          id.; and  (3) Fischer  requested  that Cede o  return to  Customs
          ___



          after  she had already  passed through, id.   None of these facts
                                                  ___



          bears  the weight the district  court placed on  them.  First, in



          Ventura  I we specifically instructed  the district court that it
          __________



          could not infer that travelers  were in custody because they were



          not free simply to walk away from Customs inspectors.  85 F.3d at



          712.   Yet, the  district court exhibited  the same  reasoning on



          remand despite our explicit disapproval.  Next, a pat-down search



          in  a  Customs inspection  was  insufficient  to tip  the  scales


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against  the government  in Pratt, 645  F.2d at 91,  and there is
                                      _____



          nothing unusual about the search in  this case to give it greater



          importance  here.   Even  though  Cede o had  passed  through the



          inspection station,  she had  not left  the international  border



          area, with  its attendant obligations to cooperate in the Customs



          process.     Moreover,  her  traveling  companion  was  still  in



          inspection  and she was  apparently waiting for  him.  Therefore,



          her progress past the inspection area did not remove her from the



          Customs context.  Cf. United States v. Wardlaw, 576 F.2d 932, 935
                            ___ _____________    _______



          (1st  Cir.   1978)(applying  relaxed   standard  for   search  at



          international border where  defendant not  only cleared  Customs,



          but also  left the airport  building before being called  back to



          Customs).



                    Finally,   the   district   court   found   that    the



          interrogation lasted one hour  and twenty minutes.   The district



          court held, "This time span ... far exceeds the length of  time a



          reasonable  person would endure without feeling restrained."  947



          F. Supp. at 34.



                    Even  the   finding   of  historical   fact  that   the



          questioning took an hour and  twenty minutes is problematic.  The



          district  court found  that the  interrogation began  at  8:10 or



          8:15, based on Rausch's testimony  about the time of the pat-down



          of Fern ndez-Ventura.  The court found the interrogation ended at



          9:40 or  9:45, based on  the times  stated in the  Miranda waiver
                                                             _______



          forms.   Id.   However, these do  not appear  to be  the relevant
                   ___



          times, since  the pat-down  search occurred near  the end  of the


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questioning.  On  the Miranda forms Fern ndez-Ventura  and Cede o
                                _______



          indicated that  they were  not detained until  9:10.   The record



          certainly does not indicate that there was protracted questioning



          after the pat-down search.  Rather, the witnesses recounted a few



          straightforward questions, followed by a call for a special agent



          to  come and  arrest Fern ndez-Ventura  and  Cede o.   Therefore,



          although the record may support  the conclusion that one hour and



          twenty minutes (or more) elapsed during the defendants' encounter



          with Customs, it does not support the district court's  inference



          that  they were therefore  subjected to "focused  questioning for



          nearly an hour and a half."  947 F. Supp. at 30.



                    Additionally, the district court held that  the custody



          began when  Fischer began to  question Cede o.   Id. at  31. This
                                                           ___



          occurred before  the pat-down  search, which  the district  court



          used as the beginning  of the one-hour-twenty-minute period.   We



          reject the circular reasoning using the lapse of time as a factor



          in determining that the two were in custody at a point before the



          one-hour-twenty-minute time period even began.



                    Moreover, even if the questioning did take one hour and



          twenty   minutes,  we  have  already  concluded  that  the  other



          circumstances  of the questioning were  routine.  The duration of



          the  encounter is "never  a singly determinative  factor," Pratt,
                                                                     _____



          645  F.2d   at  91,  and  the  duration  in  this  case  was  not



          extraordinary.  We  are not prepared  to say Customs  inspections



          cannot take this long without becoming an arrest, or even  that a



          delay of this length is strongly indicative of arrest.  See Park,
                                                                  ___ ____


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947 F.2d at  133, 138 (no arrest where  Customs inspection lasted



          three to four hours).



                    We  conclude that  the factors  cited  by the  district



          court  do not    distinguish  this case  from  a routine  Customs



          inspection  so  as   to  support  the  court's   conclusion  that



          Fern ndez-Ventura  and  Cede o were  in custody.   We  remand for
                                                                 remand



          further proceedings in accordance with this opinion.


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