United States v. Fernandez-Ventura

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
____________________

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
____________________

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, _____________ _________________

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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).

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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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