United States v. Fernandez-Ventura

                  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
                    
                              

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

                               -2-


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
                    
                              

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

                               -5-


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

                               -6-


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

                               -7-


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

                               -8-


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

                               -9-


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,
                                                                          

                               -10-


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.

                               -11-