12-333-cr(L)
United States v. Yilmaz
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE
PROCEDURE 32.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 25th day of January, two thousand thirteen.
Present: SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges,
PAUL G. GARDEPHE,
District Judge.*
______________________________________________________
|
UNITED STATES OF AMERICA, |
|
Appellee, |
|
v. | Nos. 12-333-cr(L),
| 12-344-cr(CON)
EFRAHIM YILMAZ, |
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Defendant-Appellant. |
______________________________________________________|
Appearing for Appellant: PAUL S. VOLK, Blodgett, Watts, Volk & Sussman,
P.C., Burlington, VT.
Appearing for Appellee: PAUL SILVER (Elizabeth S. Riker, Edward P.
Grogan, on the brief) Assistant United States
Attorneys, for Richard S. Hartunian, United States
Attorney for the Northern District of New York.
*
The Honorable Paul G. Gardephe, United States District Judge for the Southern District of
New York, sitting by designation.
Appeal from the United States District Court for the Northern District of
New York (Lawrence E. Kahn, Judge). ON CONSIDERATION WHEREOF, it is
hereby ORDERED, ADJUDGED, and DECREED that the judgment of the District
Court be and it hereby is AFFIRMED.
Defendant-Appellant Efrahim Yilmaz appeals from a conviction of one count
of attempting to transport an alien within the United States in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii). This proceeding follows Yilmaz’s conditional guilty plea, in
which he reserved his right to appeal the denial of his suppression motion. We
assume the parties’ familiarity with the underlying facts, the procedural history,
and the issues on appeal, to which we refer only as necessary to explain our
decision.
Yilmaz’s conviction arises from his attempt to enter the United States from
Canada by vehicle, driving through the Port of Entry in Champlain, New York.
During that attempt, Yilmaz, a Turkish citizen and legal permanent resident of the
United States, was subject to both a “primary inspection” and a “secondary
inspection” conducted by Customs and Border Protection (“CBP”) officers. During
the latter inspection, those officers found evidence in Yilmaz’s vehicle leading them
to suspect him of involvement in alien smuggling. When that suspicion arose, they
terminated the inspection, contacted the Immigration and Customs Enforcement
(“ICE”) agent on duty, and moved Yilmaz to a detention cell. Several hours later,
the ICE agent read Yilmaz his Miranda rights, and Yilmaz signed a written waiver
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of those rights. The ICE agent then interviewed Yilmaz, who made certain
incriminating statements.
In proceedings before the District Court, Yilmaz moved to suppress evidence
and statements gleaned as a result of his encounters with CBP and ICE at the
Champlain Port of Entry. After the District Court denied the motion, Yilmaz
conditionally pled guilty to one count of attempting to transport an alien within the
United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).
On appeal, Yilmaz makes two arguments related to his motion to suppress.
First, he contends that during the primary and secondary inspections, he was “in
custody” of CBP officers for purposes of Miranda v. Arizona, 384 U.S. 436 (1966),
and because the officers failed to advise him of his Miranda rights, any statements
he made during the inspections, as well as any evidence obtained as a result of
those statements, must be suppressed. Second, he contends that he has a limited
understanding of English, making his post-inspection Miranda waiver neither
knowing nor voluntary, and for this reason any statements he made following the
waiver, as well as any evidence obtained as a result of those statements, must be
suppressed.
On appeal from the denial of a motion to suppress, we review the district
court’s conclusions of law de novo and its factual findings for clear error, viewing
the evidence in the light most favorable to the government. United States v.
Rodriguez, 356 F.3d 254, 257-58 (2d Cir. 2004). A factual finding is clearly
erroneous “only when the reviewing court on the entire evidence is left with the
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definite and firm conviction that a mistake has been committed.” United States v.
Oehne, 698 F.3d 119, 121 (2d Cir. 2012) (per curiam) (internal quotation marks
omitted).
A. Yilmaz’s Primary and Secondary Inspections
“An interaction between law enforcement officials and an individual
generally triggers Miranda’s prophylactic warnings when the interaction becomes a
‘custodial interrogation.’” United States v. FNU LNU, 653 F.3d 144, 148 (2d Cir.
2011). The “overarching ‘custody’ question is whether a reasonable person in the
suspect’s position would have understood herself to be subjected to restraints
comparable to those associated with a formal arrest.” Id. at 153 (internal quotation
marks and alteration omitted). In determining whether a suspect is “in custody” for
Miranda purposes, we consider, among other factors, the duration and location of
the interrogation, the nature of the questions asked, whether the defendant
volunteered for the interrogation, whether the officers used restraints, whether
weapons were present or drawn, and whether the officers told the suspect he was
free to leave or under suspicion. Id. “Practically speaking, the most important
factor in determining whether Miranda applies at our borders will often be the
objective function of an inspector’s questions . . . .” Id. at 156 (Jacobs, C.J.,
concurring).
We agree with the District Court that Yilmaz was not “in custody” for
Miranda purposes during the primary inspection. That inspection was brief and
took place while Yilmaz remained in his vehicle at a highway border crossing – a
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location where a reasonable person “will expect some constraints as well as
questions.” Id. at 153 (majority opinion). In addition, the questions then asked of
Yilmaz were routine and relevant to his admissibility and the admissibility of his
effects. For example, Yilmaz was asked where he lived, where he was coming from,
how long he had spent in Canada, the purpose of his trip, his occupation, whether
he had any goods to declare, and for the name of the owner of his vehicle. A
reasonable person in Yilmaz’s position would not have understood himself subject to
the equivalent of a formal arrest during this inspection.
We also agree with the District Court that Yilmaz was not “in custody”
during the secondary inspection. Although the secondary inspection lasted for
approximately ninety minutes and Yilmaz was not free to leave, during that time
Yilmaz remained unrestrained in an area of the Port of Entry described as a
“waiting room.” As before, the questions asked of Yilmaz during the secondary
inspection were routine and relevant to his admissibility and the admissibility of
his effects. Yilmaz was asked to (and did) fill out a standard customs declaration
form. He was also asked about the purpose of his trip, how he had entered Canada,
his plans for the vehicle once he entered the United States, and the reason for his
possession of several thousand dollars in United States currency. Thereafter, a
CBP officer inspected Yilmaz’s vehicle while Yilmaz remained in the waiting room.
While the secondary inspection was undoubtedly more thorough than the primary
inspection, the objective function of the officers’ inquiries concerned admissibility,
and a reasonable person in Yilmaz’s position “would not have considered what
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occurred to be the equivalent of a formal arrest.” FNU LNU, 653 F.3d at 155.
Rather, a reasonable person would consider the secondary inspection “par for the
course of entering the country from abroad.” Id.
Because Yilmaz was not “in custody” during either his primary or his
secondary inspections, Miranda warnings were not required before or during either
of those inspections, and their absence does not provide a basis for suppression. Id.
B. The Validity of Yilmaz’s Miranda Waiver
To prove a valid waiver of Miranda rights, the government must show “(1)
that the relinquishment of the defendant’s rights was voluntary, and (2) that the
defendant had a full awareness of the right[s] being waived and of the consequences
of waiving th[ose] right[s].” United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995)
(per curiam). In determining whether a defendant’s waiver was valid, we ask
whether “the totality of the circumstances reveals both an uncoerced choice and the
requisite level of comprehension.” United States v. Male Juvenile (95-CR-1074),
121 F.3d 34, 40 (2d Cir. 1997) (internal quotation marks omitted).
Yilmaz argues that the District Court clearly erred in concluding that he
knowingly waived his Miranda rights because, according to Yilmaz, his allegedly
“limited ability to understand English” rendered him unable to understand those
rights. Appellant’s Br. at 22. We are not persuaded. The CBP officer who
conducted Yilmaz’s primary inspection testified that Yilmaz spoke only English
during the inspection, that Yilmaz had no difficulty answering questions, and that
Yilmaz never stated that he could not understand the officer. Similarly, the CBP
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officer who conducted Yilmaz’s secondary inspection testified that Yilmaz spoke
only English during the inspection, that Yilmaz’s English “appeared fine,” that it
was not difficult for the officer to understand Yilmaz, and that Yilmaz never stated
during that ninety-minute period that he could not understand the officer. In
addition, the record showed that Yilmaz had lived in the United States continuously
since 1994, and that cellular telephones seized from his vehicle contained text
messages in English. Further, and perhaps most importantly, the ICE agent who
read the Miranda warnings testified that he paused after each line to ask Yilmaz
whether he understood the warning and that after each such inquiry Yilmaz either
nodded his head up and down or responded “yes.” When Yilmaz once asked the
agent to speak more slowly, the agent complied. The only possible ambiguity arises
from one agent’s testimony that Yilmaz asked the agents the meaning of the word
“attorney.” We note, however, that Yilmaz sought no further clarification after the
agents explained that “attorney” is another term for “lawyer.”
The District Court thus reasonably concluded that Yilmaz understood
English sufficiently well to comprehend the Miranda warnings as given to him and
waived those rights voluntarily and intelligently. After reviewing the record, we
discern no basis to disturb those conclusions.
We have considered Yilmaz’s remaining arguments and find them to be
unavailing. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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