Agbosasa v. United States

USCA1 Opinion




November 18, 1993 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1446

SAMSON O. AGBOSASA,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND


[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before

Cyr, Boudin and Stahl,
Circuit Judges.
Circuit Judges.
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Samson O. Agbosasa on brief pro se.
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Edwin J. Gale, United States Attorney, Stephanie S. Browne and
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Charles A. Tamuleviz, Assistant United States Attorneys, on brief for
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appellee.


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Per Curiam. Petitioner Samson O. Agbosasa appeals
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pro se from the dismissal of his motion under 28 U.S.C.
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2255. Finding no error, we affirm.

I.
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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
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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
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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
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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.
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Arizona, 384 U.S. 436, 478 (1966). Second, petitioner's
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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,
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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
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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
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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
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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.
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We have little difficulty concluding that the

dismissal was correct. In Illinois v. Perkins, a prisoner's
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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
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the Fifth Amendment applies to statements voluntarily given

to an undercover agent posing as a fellow inmate, Perkins,
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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
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is speaking with a government official, the element of

coercion is missing. Id. Thus, the Court held, Miranda
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"warnings are not required to safeguard the constitutional

rights of inmates who make voluntary statements to undercover

agents." Id. at 300.
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Even if we were to assume, arguendo, that the
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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,
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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
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a government agent, his claim to Miranda protections must
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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
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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
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(1st Cir.), cert. denied, 112 S. Ct. 99 (1991).
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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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