November 18, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1446
SAMSON O. AGBOSASA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Cyr, Boudin and Stahl,
Circuit Judges.
Samson O. Agbosasa on brief pro se.
Edwin J. Gale, United States Attorney, Stephanie S. Browne and
Charles A. Tamuleviz, Assistant United States Attorneys, on brief for
appellee.
Per Curiam. Petitioner Samson O. Agbosasa appeals
pro se from the dismissal of his motion under 28 U.S.C.
2255. Finding no error, we affirm.
I.
In 1990, upon a plea of guilty, petitioner was
convicted of falsely representing that he was a United States
citizen, 18 U.S.C. 911, and was sentenced to six months
imprisonment, that sentence to run concurrently with a
sentence previously imposed in an unrelated case. The
sentencing court also mandated one year of supervised
release, including surrender of defendant to the Immigration
and Naturalization Service for deportation proceedings
pursuant to 8 U.S.C. 1101, et seq. Petitioner is currently
awaiting deportation.
The underlying facts and chronology, as culled from
the files and records in the case, are not disputed. In
January 1990, petitioner was involved in a motor vehicle
accident. He retained a lawyer to assist in processing his
claim. In June 1990, petitioner was granted pretrial release
in a pending criminal proceeding. Petitioner's travel was
restricted and he was required to make periodic personal and
telephonic reports. On August 27, 1990, an investigator from
the petitioner's insurance company called petitioner about
his accident claim. The investigator obtained petitioner's
consent to (1) tape the conversation and (2) answer the
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questions posed in the absence of his attorney. At the
outset of the conversation, the investigator inquired into
petitioner's citizenship status. Petitioner stated that he
was born in Lagos, Nigeria, came to the United States in
1979, and became a United States citizen in 1986.
Approximately six weeks later a two-count
indictment was returned against petitioner charging him with
(1) falsely representing United States citizenship, 18 U.S.C.
911, and (2) using a false social security number, 42
U.S.C. 408(g)(2). On December 7, 1990, petitioner pleaded
guilty to count one and count two was dropped. At the plea
hearing, relying upon petitioner's August 27, 1990 statements
that he was a citizen of the United States, the government
made the proffer that at trial it would prove that petitioner
remained a citizen of Nigeria. Petitioner then responded
affirmatively to the presiding judge's express query: "Do
you now want to plead guilty to . . . the first count of the
indictment in this case, which charges you with falsely and
wilfully representing yourself to be a citizen of the United
States . . . on or about August 27, 1990?"
In July 1992, petitioner filed this 2255 petition
raising two grounds for relief: (1) that his Miranda rights
were violated during the telephone interview with the
insurance investigator, and (2) that he was denied effective
assistance of counsel because his attorney refused to move to
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suppress the statements made during the August 27,1990
conversation. In an accompanying memorandum and affidavit,
petitioner contended that he learned, several months after
conviction, that the investigator's failure to advise him of
his Miranda rights rendered petitioner's citizenship
statements, made while he was on bail awaiting trial in an
unrelated criminal case, inadmissible. Petitioner asserted
that the investigator was conspiring with the government to
entrap him and thus had reason to know that any admission of
alienage by the defendant would be highly incriminating.
The government's response to the 2255 hearing was
two-fold. First, it argued that because the petitioner was
not in custody or otherwise deprived of his freedom during
the telephone conversation with the insurance investigator,
his Fifth Amendment rights were not violated. Miranda v.
Arizona, 384 U.S. 436, 478 (1966). Second, petitioner's
charges that the investigator was acting as an agent of the
government were, respondent maintained, false, conclusory and
without any factual support. Relying on Illinois v. Perkins,
496 U.S. 292, 300 (1990), the government concluded that even
if the investigator had been functioning as a government
agent during the August 27, 1990 telephone conversation, a
fact which was denied, Miranda warnings are not required when
an incarcerated suspect gives a voluntary statement to an
undercover law enforcement official. Consequently,
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respondent claimed, as there were no allegations that the
plea proceeding was deficient under Fed. R. Civ. P. 11, the
petitioner's bald and unelaborated assertions provided no
basis for 2255 relief and were subject to summary
dismissal.
Petitioner's opposition to the government's
response maintained that the Miranda "in custody" requirement
had been satisfied because at the time of the interview, his
liberty was restricted by the authorities under the terms of
the June 1990 pretrial release order in a pending, unrelated
case. Petitioner also contended that the insurance
investigator must have known of that pending criminal
proceeding and petitioner's "technical custody" because (1)
within a few hours of the telephone interview, its transcript
was in the hands of an Assistant United States Attorney and
(2) the transcript showed that the interview ranged far
afield of routine accident claim inquiries in eliciting the
incriminating information. Illinois v. Perkins was literally
inapplicable, petitioner claimed, because both parties to the
telephone interview fully understood each other's identity.
Finally, petitioner attaches importance to the fact that the
investigator called petitioner personally despite the fact
that petitioner's attorney had filed the claim.
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The district court summarily denied the 2255
motion "for the reasons set forth in the government's
response," and this appeal ensued.
II.
We have little difficulty concluding that the
dismissal was correct. In Illinois v. Perkins, a prisoner's
cell-mate was an undercover government agent who elicited
incriminating statements about an offense unrelated to the
inmate's incarceration. In deciding that neither Miranda nor
the Fifth Amendment applies to statements voluntarily given
to an undercover agent posing as a fellow inmate, Perkins,
496 U.S. at 300, the Court observed that "detention, whether
or not for the crime in question, does not warrant a
presumption that the use of an undercover agent to speak with
an incarcerated suspect makes any confession thus obtained
involuntary." Id. at 299. When a suspect is unaware that he
is speaking with a government official, the element of
coercion is missing. Id. Thus, the Court held, Miranda
"warnings are not required to safeguard the constitutional
rights of inmates who make voluntary statements to undercover
agents." Id. at 300.
Even if we were to assume, arguendo, that the
pretrial release order in the unrelated criminal case placed
restrictions on petitioner's liberty so as to constitute
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custody for Miranda purposes at the time of the interview,
and also assume that the investigator was an undercover
agent, given the fact that petitioner does not claim that he
knew, at the time of the interview, that the investigator was
a government agent, his claim to Miranda protections must
fail. No such warnings needed to be given before the
investigator here asked the questions that elicited the
incriminating response. Petitioner's further claim that
Miranda was implicated because he was represented by
counsel -- either in the insurance matter or the pending
criminal case -- fares no better, since the element of
coercion was not satisfied.
Similarly, regarding the claim that counsel's
conduct was deficient because he failed to move to suppress
petitioner's voluntary statements made on August 27,1990, no
prejudice resulted. In short, it cannot be said that "but
for counsel's errors, the result below would have been
different." See Murchu v. United States, 926 F.2d 50, 58
(1st Cir.), cert. denied, 112 S. Ct. 99 (1991).
Accordingly, even under the conspiratorial scenario
petitioner posits, the petition was, as a matter of law,
properly subject to summary dismissal. We have considered
petitioner's remaining arguments and find them without merit.
Affirmed.
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