United States Court of Appeals
For the First Circuit
No. 07-1188
UNITED STATES,
Appellee,
v.
MARKO BOSKIC,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Chief Judge,
Tashima* and Lipez, Circuit Judges.
Max Stern, with whom Patricia Garin, Jeffrey P. Wiesner,
Alexandra H. Deal, and Stern, Shapiro, Weissberg & Garin were on
brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
October 22, 2008
*
Of the Ninth Circuit, sitting by designation.
LIPEZ, Circuit Judge. This case requires us to address
a number of important issues: the relationship between deceptive
interrogation tactics used by law enforcement and the voluntariness
of statements under the Fifth Amendment; the attachment of the
right to counsel under the Sixth Amendment; and the applicability
of the fundamental ambiguity and literal truth defenses in a false
statement prosecution. Appellant Marko Boskic, a citizen of
Bosnia, was found guilty on two counts of making false statements
in his applications for refugee status and permanent residency in
the United States. See 18 U.S.C. § 1546. The government claimed
that Boskic deceived immigration officials by concealing his
service in the Army of the Republic Srpska, which has been held
responsible for the massacre of 8,000 Muslim men and boys during
the Bosnian War.
On appeal, Boskic cites two errors: (1) the district
court should have granted his motion to suppress statements made
during an interview with government agents because those statements
were secured in violation of his Fifth and Sixth Amendment rights;
(2) the court should have granted his motion for judgment of
acquittal because the evidence was insufficient to support a
finding of falsity in his two statements. We find no error and
affirm.
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I.
We draw our account of the events at issue primarily from
the evidence provided at Boskic's suppression hearing and trial.
The facts underlying this appeal are largely undisputed. To the
extent that the facts pertinent to the motion to suppress are
contested, we rely on the district court's factual findings unless
they are clearly erroneous. United States v. Perez-Montanez, 202
F.3d 434, 438 (1st Cir. 2000). In the context of the motions for
judgment of acquittal, we take the relevant facts in the light most
favorable to the jury's verdict. United States v. Bucci, 525 F.3d
116, 121 (1st Cir. 2008).
A. Background
On February 17, 2000, Boskic, while in Germany, filed an
Application for Registration for Classification as a Refugee, known
as a Form I-590, which included questions regarding his past
military service, his criminal history, and his reasons for seeking
refugee status. Based on the information he provided on the Form
I-590, Boskic was approved for refugee status. He immigrated to
the United States later that year, settling in Peabody,
Massachusetts. In April 2001, he filed an Application to Register
as a Permanent Resident or Adjust Status, known as a Form I-485,
which also included questions about his past military service and
his criminal history. Boskic was granted permanent residency on
June 29, 2002.
-3-
Alistar Graham, an investigator for the International
Criminal Tribunal for the former Yugoslavia ("ICTY") between 2001
and 2005, collected information identifying Boskic as a member of
the 10th Sabotage Detachment of the Army of the Republika Srpska in
the course of his investigation of alleged war crimes in and around
Srebrenica, Bosnia and Herzegovina. Acting on Graham's
information, the Joint Terrorism Task Force ("JTTF") in Boston,
which included representatives of Immigration and Customs
Enforcement ("ICE"), the Federal Bureau of Investigation ("FBI"),
and the United States Attorney's Office, initiated an investigation
in the fall of 2002 to determine whether Boskic had committed
immigration fraud by failing to disclose on his I-590 and I-485
forms that he had been a member of the 10th Sabotage Detachment of
the Army of the Republika Srpska. The JTTF also had information
indicating that Boskic had a criminal record prior to entering the
United States, which Boskic had not listed on his immigration
forms.
The primary agents on this investigation were FBI Agent
Greg Hughes, ICE Agent Thomas Carroll, and Assistant U.S. Attorney
Kimberly West. Graham assisted these JTTF agents but was not a
primary agent. He provided evidence identifying Boskic as a member
of the 10th Sabotage Detachment, including video footage of
Boskic's participation in that unit. Graham was motivated to help
the JTTF agents in their investigation of Boskic because, in part,
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he hoped that he could obtain Boskic's assistance in the ICTY's
investigation of senior military officials involved in the
Srebrenica massacres.2
In the spring of 2004, the JTTF agents learned that
Boskic had submitted an application for travel documents. Acting
upon this information, they devised an immigration interview
concerning the travel documents as a ruse for an interview
regarding Boskic's past military service. The JTTF planned to
obtain an arrest warrant before the interview, but not to disclose
to Boskic at the outset of the interview that he was under criminal
investigation. ICE Agent Carroll would start the interview. Once
Boskic's criminal history had been raised, FBI Agent Hughes would
join the conversation. Then, Graham would enter the interview room
with an interpreter to solicit information from Boskic about the
10th Sabotage Detachment.
In response to a notice to appear, Boskic arrived for
his interview at the JFK Federal Building in Boston, Massachusetts
on August 25, 2004 at 3:30 p.m. Consistent with the plan, JTTF had
secured an arrest warrant charging Boskic with two counts of
immigration fraud.
2
During the Bosnian War, the United Nations designated
Srebrenica as a safe haven. However, in July 1995, Bosnian Serbs
violently took control of Srebrenica and killed 8,000 Bosnian
Muslim men and boys, an act which has since been characterized as
genocide. See Marlise Simons, Court Declares Bosnia Killings Were
Genocide, N.Y. Times, Feb. 27, 2007, at A1.
-5-
B. Interviews
Carroll met Boskic in the reception area, introducing
himself as "Tom Carroll" and escorting Boskic to the interview
room. Once they entered the room, Carroll asked Boskic to remain
standing so that he could administer an oath.2 After Boskic
completed the oath and sat down, he was provided with a form
advising him that he had the right to remain silent and to receive
the assistance of counsel. See Miranda v. Arizona, 384 U.S. 436
(1966). These Miranda warnings were written in English on one side
of the form and in Serbo-Croatian on the other side.3 Carroll read
Boskic his Miranda warnings in English with Boskic reading along.
Boskic signed the English side, on which Carroll had already
2
Carroll asked Boskic, "Do you swear all the statements
you're about to give will be the whole truth, so help you God."
Boskic responded in the affirmative. Carroll testified that this
oath was administered in all immigration interviews.
3
The form, entitled "United States Department of Justice,
Immigration and Naturalization Service, Warning as to Rights,"
said:
Before we ask you any questions, you must understand
your rights.
You have the right to remain silent.
Anything you say can be used against you in court,
or in any immigration or administrative proceeding.
You have the right to talk to a lawyer for advice
before we ask you any questions and to have him with you
during questioning.
If you cannot afford a lawyer, one will be appointed
for you before any questioning if you wish.
If you decide to answer questions now without a
lawyer present, you will still have the right to stop
answering at any time. You also have the right to stop
answering at any time until you talk to a lawyer.
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written the date and time, and then read the Serbo-Croatian side of
the form before signing it and noting the date and time.4 Carroll
asked Boskic whether he understood what he had read and Boskic said
that he did.
At the outset of the interview, Carroll examined Boskic's
passport and determined that Boskic did not need the travel
documents for which he had applied because Boskic had the proper
stamp in his Bosnian passport indicating that he was a permanent
resident of the United States. Although Carroll informed Boskic
that he did not need additional travel documents, Boskic insisted,
based on information from a friend, that he could not travel on his
Bosnian passport because Bosnia and Herzegovina had recently issued
a new series of passports. According to the district court, Boskic
continued with the interview because he believed that the purpose
of the interview was to go over his application for a re-entry
permit.
Boskic spent forty-five minutes providing basic
biographical information, such as his date of birth, when he came
to the United States, and his reasons for applying to travel. Then
Carroll asked Boskic about his prior military experience. Boskic
4
The following language labeled "waiver" was located directly
above the signature block: "I have read this statement of my rights
and I understand what my rights are. I am willing to make a
statement and answer questions. I do not want a lawyer at this
time. I understand and know what I am doing. No promises or
threats have been made to me and no pressure or coercion of any
kind has been used against me."
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responded that he had fulfilled the two-year mandatory military
service for the Yugoslav Army in 1983 and 1984. When explicitly
asked whether he had any additional military experience, Boskic
said "no." Similarly, Boskic denied having a criminal record in
Bosnia. Carroll then told Boskic that he had information about
Boskic's criminal record and needed to bring in the FBI to assist
with the questioning.
At that point, Carroll left briefly and returned with
Hughes. Carroll gave to Boskic what he described as a condensed
version of the Miranda warnings, reminding Boskic that his Miranda
rights were still in effect and that he was still under oath. In
response to Hughes' questioning, Boskic said that he was from
Bosnia but denied having been a soldier in the Bosnian War. When
Hughes confronted Boskic with his Bosnian criminal record, Boskic
claimed that the charges had been fabricated by Muslim officials
who were punishing him for declining to join their army. Hughes
questioned Boskic for about fifteen minutes before telling him that
there was another person who wanted to speak with him. Hughes then
left the room, returning with Graham and a Serbo-Croatian
interpreter.
When Graham and the interpreter entered, Carroll once
again reminded Boskic that his Miranda rights were still in effect.
Graham introduced himself as an investigator from the ICTY and
asked whether Boskic wanted to continue the interview using the
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interpreter, which Boskic elected to do. Graham instructed Boskic
to listen to what he had to say and then proceeded to talk for
approximately ten minutes about his investigation of the events
associated with the massacre at Srebrenica. Graham told Boskic
that he knew Boskic had been part of the 10th Sabotage Detachment
and that he had video footage of Boskic participating in that
unit's award ceremony. Then Graham told Boskic that Boskic was not
the subject of his investigation.
At that point, Graham asked Boskic if he wanted to talk
to him or to watch the video. Boskic elected to do the latter. He
confirmed his identity in the video and commented that he knew this
day would come. After repeating that Boskic was not the subject of
his investigation, Graham asked Boskic for his cooperation. Boskic
agreed to help and, according to Graham, said that "if he was to go
down for what happened, others would go down as well." Then Boskic
described his involvement in the Branjevo Military Farm massacre
and talked about his role in the genocide at Srebrenica. When they
took a break around 6:00 p.m., snacks were provided.
After the break, the three agents -- Carroll, Hughes, and
Graham -- all questioned Boskic for another hour. Boskic agreed to
let them search his home as well as his car so they could find
information about other people who were involved in Srebrenica.5
5
We need not discuss the evidence found at Boskic's home and
in his car because Boskic does not challenge the admission of this
evidence on appeal and it does not figure prominently in Boskic's
-9-
At the end of the questioning, Carroll and Hughes spent ten to
fifteen minutes convincing the reluctant Boskic to put his story
into a written statement. The agents claimed that it would be
advantageous for him to have the statement in his own words rather
than relying on their version of his story.
At approximately 7:00 p.m., still working with the
assistance of a Serbo-Croatian interpreter, Hughes dictated two
sentences to Boskic, which Boskic wrote down in Serbo-Croatian to
begin his statement: "I, Marko Boskic, understand and give up my
rights. I am giving this statement voluntarily, without promises
and guarantees." Hughes asked Boskic whether he understood that
writing the statement was voluntary, to which Boskic responded in
English: "If I'm writing this down, I know what I'm doing." Boskic
then admitted in the statement that he served in the 10th Sabotage
Detachment of the Army of the Republika Srpska and participated in
the Srebrenica massacre, though he claimed his involvement was
involuntary. Around 8:20 p.m., while he was still composing his
statement, Boskic asked "What's going to happen tonight?" Carroll
responded that they were going to hold him overnight and then bring
him before a judge in the morning. Boskic asked whether he was
going to be arrested. Carroll said that he would be arrested for
immigration fraud.
convictions.
-10-
When Boskic had completed his statement, at approximately
10:15 p.m., Hughes suggested that Boskic also write that he had
lied on his immigration forms. Boskic refused to do so, saying to
Hughes, "Greg, if you had a woman that you loved and wanted to be
with her, wouldn't you lie to keep her?" Boskic also said that he
"knew what this was about when the FBI came in." Boskic was then
arrested and transported to the Suffolk County House of
Corrections.
C. Procedural History
On September 24, 2004, a grand jury indicted Boskic on
four counts of making false declarations on immigration documents
in violation of 18 U.S.C. § 1546(a),6 and one count of violating 18
U.S.C. § 1001 by making false material statements to government
6
The four counts were as follows: (1) making a false
statement under oath with respect to material facts on a
Registration for Classification as a Refugee, Form I-590, by
stating that he served only in the Yugoslav National Army and no
other, (2) making a false statement under oath with respect to
material facts on an Application to Register as a Permanent
Resident or Adjust Status, Form I-485, by stating that he served
only in the Yugoslav National Army and no other, (3) making a false
statement under oath with respect to material facts on a
Registration for Classification as a Refugee, Form I-590, by
stating that he had never ordered, assisted or otherwise
participated in the persecution of other persons because of race,
religion and political opinion, and (4) making a false statement
under oath with respect to material facts on an Application to
Register as a Permanent Resident or Adjust Status, Form I-485, by
stating that he had never ordered, incited, assisted or otherwise
participated in the killing of any person because of race,
religion, nationality, ethnic origin or political opinion.
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agents in his original immigration interview.7 Prior to his trial,
Boskic filed a motion to suppress, inter alia, the statements he
made in the staged immigration interview. Boskic argued that his
rights under the Fifth and Sixth Amendments had been violated in
the interview. The district court denied the suppression motion.
Boskic's eight-day jury trial began on June 26, 2006. In
addition to the background information described above, the
evidence included Agent Hughes' testimony that Boskic had told him
that he had been advised while in Germany not to disclose his past
military service if he wanted to move to the United States.8 The
government also called as a witness Dr. Arti Gehani, a volunteer
with the International Rescue Committee ("IRC"), who helped Boskic
complete his Form I-485 in April 2001. Although she did not
specifically recall assisting Boskic, she testified that she
typically read the questions on the form to the individuals with
whom she worked, paraphrasing the English as she went along. She
customarily translated the form's question about military service
by asking if the applicant "had ever been in the military." The
government also provided evidence that Boskic had characterized his
English language skills as "good" on a form that was filed
7
On this count, the pertinent false statement was that he had
only served in the Yugoslav National Army, when in fact he had also
served in the Army of the Republika Srpska.
8
On cross-examination, Hughes acknowledged that his written
report following the interview did not state that Boskic had told
him about this advice.
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contemporaneously with the Form I-485, and that this self-
assessment was accurate.9
The jury convicted Boskic on the first two counts
alleging violations of 18 U.S.C. § 1546(a) and acquitted him on the
remaining counts. Boskic then filed a motion for judgment of
acquittal on the two counts of conviction, which the court denied
at sentencing in November 2006. The court sentenced Boskic to 63
months of imprisonment to be followed by three years of supervised
release.
Boskic now appeals the convictions on the grounds that
the district court erred in denying his motion to suppress and that
the evidence failed to support the verdict. We analyze Boskic's
claims relating to the motion to suppress first because our
decision on this motion affects the record that we must consider in
evaluating Boskic's motion for a judgment of acquittal. We precede
that analysis with a summary of the district court's suppression
decision.
II.
Claiming that the agents used deceptive interview tactics
that were tantamount to coercion in violation of his Fifth
Amendment due process rights, Boskic moved to suppress all of the
9
Boskic's self-assessment was corroborated by evidence that
as of April 2001 he had been working at K-Mart for ten months and
was in regular contact with the IRC in English regarding the status
of his immigration documents.
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statements that he made during the August 25, 2004 interview.
Boskic also sought suppression for a violation of his Sixth
Amendment right to counsel, claiming that the officers improperly
conducted their interview in the absence of his attorney. The
district court conducted a suppression hearing, at which Boskic and
the three agents involved in the interview testified.
In its Memorandum and Order on the motion to suppress,
the district court divided its analysis of Boskic's interview into
three distinct periods: (1) Carroll's and Hughes' interview of
Boskic, (2) Graham's interview of Boskic and the joint interview
conducted by Carroll, Hughes, and Graham prior to 8:20 p.m., and
(3) the joint interview by all three agents subsequent to 8:20 p.m.
when Boskic became aware of the impending arrest. During the first
period, Boskic provided basic biographical information and
misrepresented his past military service as well as his criminal
history to Carroll and Hughes. During the second period, Boskic
described his involvement in the Branjevo Military Farm massacre
and the events at Srebrenica, gave permission for the agents to
search his home and car, and started memorializing his disclosures
in writing. At 8:20 p.m., the beginning of the third period,
Boskic asked whether he was going to be arrested. The agents
responded in the affirmative. Nonetheless, Boskic completed his
written statement and said to Hughes, "Greg, if you had a woman
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that you loved and wanted to be with her, wouldn't you lie to keep
her?"
Before the district court, Boskic sought to suppress
statements made during all three of these periods.10 He argued that
the agents misled him as to the true nature of their investigation
because they initiated the interview under the pretense that it was
an immigration interview and because Graham said that Boskic was
not the subject of his investigation. According to Boskic, this
deception constituted a coercive official tactic that rendered his
statements involuntary in violation of the Fifth Amendment. The
district court agreed with Boskic's assessment that when Graham
told Boskic he was not the subject of his investigation, the
agents' "actions and silence were intended to create a false
assurance that Boskic was not the subject of any domestic
investigation."
Nonetheless, the district court explained that mere
trickery by the police during an interrogation does not necessarily
rise to the level of coercion. It then looked to the totality of
the circumstances to assess whether the government had met its
burden of proving the voluntariness of Boskic's statements. To
that end, it considered the following statutory factors:
10
On appeal, Boskic does not contest the district court's
denial of his motion to suppress statements made before Graham
started interviewing him.
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(1) the time elapsing between arrest and arraignment of
the defendant making the confession, if it was made after
arrest and before arraignment, (2) whether such defendant
knew the nature of the offense with which he was charged
or of which he was suspected at the time of making the
confession, (3) whether or not such defendant was advised
or knew that he was not required to make any statement
and that any such statement could be used against him,
(4) whether or not such defendant had been advised prior
to questioning of his right to the assistance of counsel;
and (5) whether or not such defendant was without the
assistance of counsel when questioned and when giving
such confession.
18 U.S.C. § 3501(b).11 The court also noted that "[t]he Supreme
Court has listed other potential circumstances that are relevant to
the voluntariness of the confession." See Withrow v. Williams, 507
U.S. 680, 693-94 (1993)(explaining that the court should consider
the defendant's maturity, education, physical condition and mental
health, in addition to the length of the interrogation and its
location when considering the totality of the circumstances). The
court found that on balance these factors weighed in favor of
voluntariness. Therefore, the court rejected the Fifth Amendment
due process claim.
On the Sixth Amendment claim, the court held that even
though the agents had filed a criminal complaint against Boskic and
obtained an arrest warrant before the interview, Boskic's right to
counsel had not yet attached at the time of the staged immigration
11
This provision is a subsection of 18 U.S.C. § 3501, which
addresses the admissibility of confessions.
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interview. The court also noted that Boskic never invoked his right
to counsel even though he was provided with the Miranda warnings.
III.
When considering challenges to a district court's denial
of a motion to suppress, we review conclusions of law de novo and
findings of fact for clear error. United States v. Jones, 523 F.3d
31, 36 (1st Cir. 2008). As such, we review de novo whether a
statement is voluntary and review for clear error the subsidiary
findings of fact. United States v. Rojas-Tapia, 446 F.3d 1, 3 (1st
Cir. 2006). If any reasonable view of the evidence supports the
denial of a motion to suppress, we will affirm the denial. United
States v. Holloway, 499 F.3d 114, 117 (1st Cir. 2007).
A. Coercion
1. The Standard for Determining Coercion
On appeal, Boskic focuses on two factors in making his
involuntariness argument: the agents' deceptive interrogation
tactics and the coercive nature of the immigration interview. We
have noted that Boskic received the Miranda warnings at least three
times during the course of his interview with Hughes, Carroll, and
Graham. However, this case does not involve any claims by Boskic
that the government failed to comply with the Miranda procedure,
which applies only to custodial settings. Boskic acknowledges that
he was not in custody prior to 8:20 p.m., when he was told that he
would be arrested.
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Instead, Boskic argues that his statements during this
non-custodial period, between Graham's assurance that Boskic was not
the subject of Graham's investigation and 8:20 p.m., were
involuntary because he was tricked into believing that he was not
under investigation. Boskic also contends that his statements
during the post-8:20 p.m. period, once he was informed that he was
going to be arrested and the interview became custodial, were also
involuntary because the taint from the involuntariness of the
earlier coercion had not dissipated. Boskic further argues that
even if the government's misrepresentation did not itself render his
statements involuntary, the "quasi-coercive" nature of the
immigration interview, in conjunction with Graham's
misrepresentations, made his statements involuntary.
In evaluating whether a defendant's statements were
voluntary, we must use the standard set forth in Colorado v.
Connelly, 479 U.S. 157 (1986). There the Supreme Court stated that
"coercive police activity is a necessary predicate to the finding
that a confession is not 'voluntary' within the meaning of the Due
Process Clause of the Fifth Amendment." Id. at 167. This standard
reflected a shift in the Supreme Court's jurisprudence.
Historically, the requirement that admissible
confessions be 'voluntary' reflected a variety
of values; these included deterring coercion,
assuring reliability of confessions, and
protecting the suspect's free choice whether
to confess. Thus, at common law, confessions
produced by promises not to prosecute or
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offers of leniency were often excluded as
involuntary.
United States v. Byram, 145 F.3d 405, 407 (1st Cir. 1998). However,
after Connelly, "only confessions procured by coercive official
tactics should be excluded as involuntary." Id.
2. The Agents' Deception
Boskic argues that the agents' misrepresentations --
through assurances and silence -- constituted coercion sufficient
to make his statements subsequent to Graham's arrival involuntary.
He points to Graham's specific assertion that he was not under
investigation, and the purposeful silence of Carroll and Hughes in
the face of Graham's assurances. Indeed, Boskic emphasizes the
district court's finding that he probably would not have spoken with
the agents about his involvement in the Army of the Republika Srpksa
if he had known that he was the subject of Carroll's and Hughes'
investigation.
We have previously held that "trickery is not
automatically coercion" and, "[g]iven the narrowed definition of
coercion in Connelly, it would be very hard to treat as coercion a
false assurance to a suspect that he was not in danger of
prosecution." Byram, 145 F.3d at 408. The district court
emphasized this language from Byram in rejecting Boskic's coercion
argument. An understanding of Byram is critical for an evaluation
of the arguments of the parties.
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The defendant in Byram, who was not advised of his
Miranda rights at the outset of a courthouse interrogation, agreed
to cooperate in a murder investigation and to testify at the
subsequent trial of his friend because he was assured that he was
not "implicated in any of this," referring to the murder under
investigation. Id. at 406. When he was later charged and tried for
being a felon in possession of a weapon, a crime that he had
admitted to during the police interrogation and while testifying
at the friend's murder trial, he filed a motion to suppress these
incriminating statements. Id. at 406-07.
Expressing concerns about the voluntariness of Byram's
statements and the violation of his due process rights, the district
court suppressed Byram's statements from both the courthouse
interrogation and the trial. Id. at 407. The government appealed
the suppression of the statements made at trial, but not those made
during the courthouse interrogation, which the district court deemed
custodial. Id. Although we affirmed in part the district court's
suppression ruling on appeal, finding that the defendant's trial
testimony was inadmissible against him because it was the "fruit"
of a Miranda violation at the custodial interrogation, we rejected
the defendant's alternative argument that his statements during the
courthouse interview and on the witness stand were involuntary. Id.
at 408-10. Recognizing that certain types of police trickery can
constitute coercion, we held that a police statement that was
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"literally true so far as the murder charge was concerned but a
suggestio falsi as [it] pertains to a possible possession charge"
was not such an instance. Id. at 409.
Boskic argues that the district court wrongly relied on
Byram because Byram did not involve "consciously misleading conduct
on the part of the government." Here, by contrast, there was a
"carefully contrived and executed plan" to deceive Boskic into
believing that he was not a target of any investigation. Byram does
not support this distinction between contrived and unplanned
trickery, given our statement there that "under Connelly[,] Byram's
interview statement, like his trial testimony, would not be
'involuntary' even if he were deceived." Id. at 408. Nonetheless,
Boskic argues that, on the question of coercion, we later drew the
distinction in United States v. Flemmi, 225 F.3d 78, 91-92 (1st Cir.
2000), between statements by police officials that were
inadvertently misleading and statements that were consciously
misleading. Hence Flemmi, like Byram, is critical to an evaluation
of the arguments of the parties.
The defendant in Flemmi was "one of Boston's most
notorious gangsters" as well as an FBI informant. Id. at 80. Prior
to his trial, the defendant filed a successful motion to suppress,
arguing that incriminating evidence collected in connection with the
FBI's electronic surveillance should not be admissible against him
because he was promised use immunity by the FBI agents with whom he
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was working. Id. at 80-81. On interlocutory appeal, we vacated the
suppression order, holding that the promises of use immunity by the
FBI agents were unenforceable. We also rejected the defendant's
argument that his statements were involuntary because the FBI
agents' unauthorized promises of immunity induced his statements.
Id. at 91.
In arguing that Flemmi modified Byram's holding on the
relationship between police deception and coercion, Boskic points
to our comment in a Flemmi footnote that there was "no evidence that
[the FBI agents] intended to mislead Flemmi or tried to dupe him."
Id. at 91 n.5. Boskic insists that the absence of deceit was the
primary basis for our decision that the official conduct was non-
coercive. This insistence is a misreading of Flemmi. The lack of
evidence of consciously misleading conduct on the part of the agents
was cited as one factor in the totality of the circumstances test
applied to the voluntariness question. Moreover, we explained
explicitly in Flemmi that the challenged statement would be viewed
as voluntary "even if the government could be charged with deceit
on this record." Id. Therefore, Flemmi does not modify the
proposition set forth in Byram that "confessions procured by deceits
have been held voluntary in a number of situations." Byram, 145
F.3d at 408; Flemmi, 225 F.3d at 91 n.5.
Nevertheless, we acknowledged in Byram that "some types
of police trickery can entail coercion," 145 F.3d at 408, citing the
-22-
example of Lynumn v. Illinois, 372 U.S. 528 (1963). There, a
suspect was told that she was in jeopardy of losing her children and
her welfare benefits if she did not cooperate. Id. at 534. The
unfounded threat by the police in Lynumn
"did more than affect the suspect's beliefs regarding her
actual guilt or innocence, and judgments regarding the
evidence connecting her to the crime. It also distorted
the suspect's rational choice . . . by introducing a
completely extrinsic consideration: an empty but
plausible threat to take away something to which she and
her children would otherwise be entitled. This extrinsic
consideration not only impaired free choice, but also
cast doubt upon the reliability of the resulting
confession . . . ."
United States v. Boskic, 2006 WL 1540488, at *16 (D. Mass. June 2,
2006) (emphasis omitted) (quoting Holland v. McGinnis, 963 F.2d
1044, 1051-52 (7th Cir. 1992) (internal citations omitted)). Here,
there were no such extrinsic factors that distorted Boskic's
judgment about the evidence implicating him in making false
statements to immigration authorities or that cast doubt on the
reliability of his statements. Although the fact that the agents
allowed him to believe that he was not under investigation may have
made him less guarded and self-protective, that deception alone did
not make his statements involuntary.
3. Immigration Interview
Boskic asserts that "[e]ven assuming the deliberate
misrepresentations made by the government are not enough, standing
alone, to render [his] statements involuntary, when they are taken
in conjunction with what the district court found to be the 'quasi-
-23-
coercive nature of the official immigration interview,' there can
be no doubt that, under the totality of the circumstances, [his]
will was overborne." In support of this position, Boskic argues
that he only spoke to the authorities because he believed his
status as an immigrant required him to cooperate with Carroll, whom
he believed to be an immigration official. At the suppression
hearing, Boskic testified that Carroll "works in the immigration
status and he's in charge of me and I thought I had to answer his
questions."
We agree with the district court that "the quasi-coercive
nature of an official immigration interview in a federal building,
whether the door is open or not, [is] a factor to be considered in
deciding whether a confession was given voluntarily" because it
would be "naive to ignore the perception -- indeed fear-- of all
non-citizens in the United States that immigration authorities
control their fate." We also agree with the district court that
the following factors weigh against voluntariness: (1) the agents'
decision not to inform Boskic of the nature of the offenses that
they suspected he had committed, (2) the absence of counsel during
the interview, and (3) Boskic's nervousness and hesitancy at the
outset of the interview.
However, we also agree with the district court that there
are many other factors that weigh in favor of voluntariness. The
agents told Boskic on at least three occasions that he could remain
-24-
silent and that he could have the assistance of counsel if he so
requested, even though they were not required to provide Boskic
with Miranda warnings before 8:20 p.m., when the custodial portion
of the interrogation began. From the outset of Graham's
questioning, Boskic understood that he was being interviewed in
connection with his involvement in the 10th Sabotage Detachment,
and he told Graham that "if he [Boskic] was to go down for what
happened, others would go down as well." The interview was not
particularly lengthy. Boskic had regular breaks from questioning
during which food and drink were offered. The interview room had
adequate lighting, Boskic was never subjected to physical
discomfort, and a translator was used once Graham began his
questioning. In addition, Boskic was a well-educated, mature adult
of forty years, who had a general familiarity with the American
legal system and was in good mental and physical health. See
generally Withrow, 507 U.S. at 693.
Additionally, when Boskic began to write his statement
around 7:00 p.m., Carroll, through the interpreter, dictated the
following phrase to Boskic: "I am giving this statement
voluntarily, without promises and guarantees." Using the
interpreter, Carroll asked whether Boskic understood the meaning of
this phrase. Boskic responded in English, "If I'm writing this
down, I know what I'm doing." When Agent Hughes later suggested
that Boskic write in his statement that he lied on the immigration
-25-
forms, Boskic declined to do so. These choices and comments
reflect Boskic's calculation, an understanding of his right not to
cooperate or talk, and some measure of self-protection. Given all
of these factors, we agree with the district court that the
statements obtained from Boskic during the immigration interview
were voluntary.12
IV.
Boskic argues that the district court erred in concluding
that his Sixth Amendment right to counsel did not attach when the
law enforcement agents filed a criminal complaint prior to their
interview with him. He further asserts that he did not waive his
Sixth Amendment rights and that the statements he made during the
interview should therefore be suppressed. In order to assess this
contention, we must review some Sixth Amendment principles.
A. Sixth Amendment Law
The Sixth Amendment provides that, "[i]n all
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence." U.S. Const. amend. VI.
The Supreme Court has often explained that a criminal prosecution
commences, and the right to counsel attaches, at or after "'"the
12
Boskic argues that even though he received Miranda warnings,
the statements obtained from him during the custodial interrogation
after 8:20 p.m. were involuntary because his statements prior to
that time had been involuntary. Having rejected the conclusion
that the earlier statements were involuntary, we need not consider
this argument any further.
-26-
initiation of adversary judicial criminal proceedings -- whether by
way of formal charge, preliminary hearing, indictment, information,
or arraignment."'" Rothgery v. Gillespie County, 128 S. Ct. 2578,
2583 (2008) (quoting United States v. Gouveia, 467 U.S. 180, 188
(1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)
(plurality opinion))). The Court has emphasized that this
rule is not "mere formalism," but a
recognition of the point at which "the
government has committed itself to prosecute,"
"the adverse positions of government and
defendant have solidified," and the accused
"finds himself faced with the prosecutorial
forces of organized society, and immersed in
the intricacies of substantive and procedural
criminal law."
Id. (quoting Kirby, 406 U.S. at 689).
Rothgery, the Court's most recent pronouncement on the
Sixth Amendment right to counsel, establishes that the right
attaches at least when the defendant first appears before a
judicial officer. Id. at 2586. The Court observed there that "by
the time a defendant is brought before a judicial officer, is
informed of a formally lodged accusation, and has restrictions
imposed on his liberty in aid of the prosecution, the State's
relationship with the defendant has become solidly adversarial."
Id.
It is equally well settled that the Sixth Amendment right
may attach before a defendant first faces a judicial officer. The
Court repeatedly has included the return of an indictment or the
-27-
filing of an information among the circumstances that constitute
the "initiation of adversary judicial criminal proceedings" –
events that do not involve the defendant's appearance before a
judicial officer but that do require by rule the involvement of
prosecutors.13 See, e.g., Rothgery, 128 S. Ct. at 2583; Moran v.
Burbine, 475 U.S. 412, 429 (1986); Gouveia, 467 U.S. at 188; Kirby,
406 U.S. at 689.
13
Both an indictment and an information must be signed by an
attorney for the government, Fed. R. Crim. P. 7(c)(1), but the
prosecutor's involvement in the grand jury's indictment process
extends far beyond that ministerial role:
[A] modern grand jury would be much less effective
without the assistance of the prosecutor's office and the
investigative resources it commands. The prosecutor
ordinarily brings matters to the attention of the grand
jury and gathers the evidence required for the jury's
consideration. Although the grand jury may itself decide
to investigate a matter or to seek certain evidence, it
depends largely on the prosecutor's office to secure the
evidence or witnesses it requires. The prosecutor also
advises the lay jury on the applicable law.
United States v. Sells Eng'g Inc., 463 U.S. 418, 430 (1983)
(footnote omitted); see also, e.g., In re Grand Jury Proceedings,
219 F.3d 175, 189 (2d Cir. 2000) (observing that the grand jury "is
an accusatory body under the (almost) complete control of the
prosecutor"); 1 Charles A. Wright & Andrew D. Leipold, Federal
Practice & Procedure § 101, at 289 (4th ed. 2008) ("It is . . .
easy to overstate the grand jury's independence from the
prosecutor. It is the prosecutor who decides what investigations
to pursue, what documents to subpoena, which witnesses to call, and
what charges to recommend for indictment.").
If charged with a non-capital offense "punishable by
imprisonment for more than one year," a defendant may be prosecuted
by information, rather than indictment, if he waives his right to
indictment. Fed. R. Crim. P. 7(b). An information is explicitly
a prosecutorial undertaking; it is defined as "[a] formal criminal
charge made by a prosecutor without a grand-jury indictment."
Black's Law Dictionary 795 (8th ed. 2004).
-28-
At the same time, however, the Court has clarified that
not every "'critical' pretrial event" comes with Sixth Amendment
protection: "the possibility that [such an event] may have
important consequences at trial, standing alone, is insufficient to
trigger the Sixth Amendment right to counsel." Moran, 475 U.S. at
432. Rather, "[a]ttachment occurs when the government has used the
judicial machinery to signal a commitment to prosecute . . . ."
Rothgery, 128 S. Ct. at 2591.
With these principles in mind, we turn to Boskic's
contention that the complaint filed by the agents in this case was
"an accusation sufficiently formal, and the government's commitment
to prosecute it sufficiently concrete" to trigger his Sixth
Amendment right to counsel. Id. at 2589.
B. Boskic's Right to Counsel
In arguing that the complaint charging him with criminal
activity triggered the Sixth Amendment, Boskic necessarily relies
on the Supreme Court's longstanding inclusion of "formal charge,"
along with indictment and information, in the list of events that
signal the start of a criminal prosecution. See, e.g., Rothgery,
128 S. Ct. at 2583 (noting that adversary proceedings may be
initiated by "formal charge, preliminary hearing, indictment,
information, or arraignment") (citations omitted); Kirby, 406 U.S.
at 689. A complaint prepared pursuant to Federal Rule of Criminal
Procedure 3 is "a written statement of the essential facts
-29-
constituting the offense charged," and it must be made under oath
before a magistrate judge or other judicial officer. If the
complaint and attached affidavits establish probable cause to
believe that the charged offense has been committed by the
defendant, "the judge must issue an arrest warrant to an officer
authorized to execute it." Fed. R. Crim. P. 4(a). Boskic reasons
that the complaint is the first official accusation of criminal
activity and that "the only logical conclusion" to be drawn from
the issuance of an arrest warrant based on the complaint's showing
of probable cause is that "the defendant has been formally charged
with an offense."
The Supreme Court has never elaborated on what
instruments beyond indictment and information would constitute a
"formal charge" for purposes of the Sixth Amendment. However,
every circuit that has considered the issue has concluded that a
federal complaint does not qualify as such, primarily because of
its limited role as the precursor to an arrest warrant. See United
States v. Alvarado, 440 F.3d 191, 200 (4th Cir. 2006); United
States v. Moore, 122 F.3d 1154, 1156 (8th Cir. 1997); United States
v. Langley, 848 F.2d 152, 153 (11th Cir. 1988) (per curiam); United
States v. Pace, 833 F.2d 1307, 1312 (9th Cir. 1987); United States
v. Duvall, 537 F.2d 15, 22 (2d Cir. 1976); see also United States
v. Harris, 45 F.3d 431, (Table), 1995 WL 7958, at *2 (6th Cir.
-30-
1994) (per curiam) (unpublished); United States v. Santiago, 180 F.
App'x 337, 339 (3d Cir. 2006) (unpublished).
We agree with these courts. The process of securing a
federal criminal complaint does not involve the appearance of the
defendant before a judicial officer. It is therefore unlike a
preliminary hearing or arraignment. Nor does the process of
securing a federal criminal complaint require, by statute or rule,
the participation of a prosecutor. It is therefore unlike the
procedures for securing an indictment or information, which require
the participation of a prosecutor and, in that sense, manifest the
"commitment to prosecute" that is critical to the Supreme Court's
Sixth Amendment jurisprudence. Rothgery, 128 S. Ct. at 2591.
Hence it is not surprising that the Court has never
listed a "complaint" -- a commonly used method of initiating
charges against suspected criminals -- as one of the specifically
enumerated examples of events that trigger the Sixth Amendment
right. That omission reinforces our view that, at least under
federal law, the complaint is not a "formal charge" in the relevant
sense for triggering the Sixth Amendment right to counsel. The
federal complaint serves merely as the prelude to an arrest warrant
and does not move a case from the investigative phase to the point
at which the defendant "finds himself faced with the prosecutorial
forces of organized society." Kirby, 406 U.S. at 689; see also
Alvarado, 440 F.3d at 199 ("By its own terms, the Sixth Amendment
-31-
applies to 'criminal prosecutions' as opposed to criminal
investigations.").14
We recognize that access to counsel may be helpful before
the Sixth Amendment right attaches, particularly when suspects
confront the custodial interrogations that are the hallmark of the
investigative process. However, the Sixth Amendment is not
directed at the risks of self-incrimination inherent in such
confrontations; in those settings, suspects must instead rely on
the Fifth Amendment and the prophylactic, now constitutionalized
rule of Miranda.15 The Sixth Amendment takes hold when the
investigation gives way to a prosecution, broadly guaranteeing the
defendant the assistance of counsel as he negotiates the intricate
procedures of the adversary criminal system. "By its very terms,"
the Sixth Amendment "becomes applicable only when the government's
role shifts from investigation to accusation." Moran, 475 U.S. at
430. That shift had not yet happened when Boskic entered the
14
The transition from investigation to prosecution occurred
here a day after the interview, when Boskic made his first
appearance before a judicial officer. At that hearing, where he
was represented by counsel, Boskic was advised of the criminal
charges against him and did not oppose detention.
15
In this case, of course, although Boskic was given Miranda
warnings at the outset of the interview, he has never contended
that he was in custody and entitled to the warnings when the
interview began. His Fifth Amendment challenge to the admission of
his statements is based on a due process/voluntariness argument
rather than on the government's failure to comply with Miranda.
-32-
interview room.16 Accordingly, we reject his claim that the Sixth
Amendment provided him with a right to counsel at the outset of the
interview.17
16
Other arguments that Boskic offers in support of his Sixth
Amendment claim have no merit. He asserts that the prosecution
must have begun with filing of the complaint because the clock
started running for speedy trial purposes at that time. The
Supreme Court has explicitly rejected that link between the Sixth
Amendment's right to counsel and the right it provides to a speedy
trial. See Gouveia, 467 U.S. at 190 (noting the different
interests at stake: "While the right to counsel exists to protect
the accused during trial-type confrontations with the prosecutor,
the speedy trial right exists primarily to protect an individual's
liberty interest . . . ."); United States v. Spagnuolo, 469 F.3d
39, 43 (1st Cir. 2006). Nor is he correct in suggesting that we
previously have held that a criminal complaint triggers the right
to counsel. In United States v. LaBare, 191 F.3d 60 (1st Cir.
1999), we did not address the issue because the government had
assumed attachment of the right. Id. at 64; see also United States
v. Hilario-Hilario, 529 F.3d 65, 73-74 (1st Cir. 2008) (bypassing
the question whether "a criminal complaint begins adversarial
proceedings triggering a right to counsel" because defendant waived
any such right).
17
Given our conclusion, we do not reach the question of
Boskic's possible waiver of his Sixth Amendment right to counsel.
We note, however, that a valid waiver of Fifth Amendment rights
typically will suffice to accomplish a waiver of the Sixth
Amendment right to counsel in the context of police questioning of
a defendant. Patterson v. Illinois, 487 U.S. 285, 296 (1988).
However, the Fifth and Sixth Amendment rights to counsel are not
coterminous, and a waiver sufficient for Fifth Amendment purposes
will not necessarily waive the Sixth Amendment right. Id. at 296
n.9 ("[B]ecause the Sixth Amendment's protection of the attorney-
client relationship – 'the right to rely on counsel as a "medium"
between [the accused] and the State' -- extends beyond Miranda's
protection of the Fifth Amendment right to counsel, there will be
cases where a waiver which would be valid under Miranda will not
suffice for Sixth Amendment purposes." (citation omitted)). As an
example, the Court in Patterson noted that a Miranda waiver was
sufficient "where a suspect was not told that his lawyer was trying
to reach him during questioning," but stated that, "in the Sixth
Amendment context, this waiver would not be valid." Id.
-33-
V.
Boskic also appeals his convictions on the ground that
the district court improperly denied his motion for a judgment of
acquittal. He contends that his failure to disclose his service in
the Army of the Republika Srpska is insufficient evidence to
establish that he made false statements in violation of 18 U.S.C.
§ 1546. We review rulings on motions for judgments of acquittal de
novo, assessing whether a rational factfinder could have found each
element of the offense beyond a reasonable doubt. United States v.
Vazquez-Botet, 532 F.3d 37, 59 (1st Cir. 2008). We draw all
reasonable inferences in favor of the verdict. Id. "We need not
be convinced that a guilty verdict was the only one available on
the evidence, but merely that a plausible rendition of the record
supports the verdict." Id. at 60 (internal quotation marks and
citations omitted). Therefore, "evidence sufficient to support a
guilty verdict may be entirely circumstantial, and the factfinder
is free to choose among reasonable interpretations of the
evidence." Id. (internal quotation marks and citations omitted).
The elements of a § 1546(a) violation are: (1) the
defendant made a false statement, (2) the statement was made
knowingly and (3) under oath, (4) the statement concerns a
"material fact," (5) and the statement was made in an application
required by the United States immigration laws and regulations.
See 18 U.S.C. § 1546(a); United States v. Chu, 5 F.3d 1244, 1247
-34-
(9th Cir. 1993). Boskic explicitly challenges only the sufficiency
of the evidence on the first element – whether he made false
statements on his immigration forms. However, resolving that issue
requires us to consider his knowledge as well because, as we shall
explain, whether his answers were false depends on his
understanding of the questions asked of him. See, e.g., United
States v. DeZarn, 157 F.3d 1042, 1044 (6th Cir. 1998) ("[T]he crime
of perjury depends not only upon the clarity of the questioning
itself, but also upon the knowledge and reasonable understanding of
the testifier as to what is meant by the questioning . . . .").
A. Count One: Registration for Classification as a Refugee, Form
I-590
On the Form I-590 provided to Boskic, there were nineteen
questions that were posed simply. For example, question thirteen
regarding the applicant's educational background was entitled
"Schooling or Education." Beneath this heading was a table
containing four rows and four columns. The columns were labeled
"Name and location of school," "Type," "Dates attended," and "Title
of Degree or Diploma." Using all four rows provided for the
response, Boskic furnished the requested information about his
educational background.
The next question, number fourteen, was entitled
"Military Service." Like the prior question on educational
background, there was a table under the heading "Military Service."
This table had two rows and five columns. The columns were
-35-
labeled: "Country," "Branch and Organization," "Dates," "Serial
No.," and "Rank Attained." Two rows were provided for a response
and Boskic used only one of the rows. In response to country, he
indicated "SFR Yugoslavia." He also indicated, as requested, that
he had been in the infantry from 1983-84 and had attained the rank
of private. He did not indicate his serial number, instead putting
a dash in this box. At the end of the form, the following oath was
signed by Boskic: "I, __________, do swear (affirm) that I know the
contents of this registration subscribed by me including the
attached documents, that the same are true to the best of my
knowledge . . . and that this registration was signed by me with my
full, true name."
Boskic acknowledges that he did not include references to
his service in the Army of the Republika Srpska in response to the
question about military service on his Form I-590. However, he
contends that the jury could not find him guilty of making a false
statement because that omission did not constitute the false
statement that is required here. He points out that the oath on
the form required him to swear only that the responses were "true
to the best of his knowledge" and not that they also were complete.
Boskic concedes that deliberately omitting required
information may properly be characterized as making a false
statement in other contexts. See United States v. Wells, 519 U.S.
482, 485 (1997) (recognizing that concealing the nature of a
-36-
company's contractual obligations from several banks can constitute
knowingly making a false statement to a federally insured bank).
He contends that where a form does not explicitly require full
disclosure, withholding information cannot be characterized as
making a false statement under § 1546(a).
Boskic cites two cases in support of his position. In
United States v. McCarthy, 422 F.2d 160 (2d Cir. 1970), the Second
Circuit upheld the conviction of a union officer for making false
statements by omission on a report filed with the Secretary of
Labor. The oath on the pertinent report stated that the contents
were "true, correct, and complete." Id. at 162. In the second
case cited by Boskic, United States v. Mattox, 689 F.2d 531 (5th
Cir. 1982), an employee who omitted information from an employment
application was convicted of making a false statement. The
instructions on the employment application required the defendant
to write down "all" his past employment, and the form contained a
certification that the information on the form was "True and
Correct." Id. at 532.
Boskic reads these cases for the proposition that a
defendant may be convicted for making a false statement by omission
only if the underlying forms specify that the information provided
is either true and complete or, alternatively, that all of the
requested information has been provided. However, we read neither
case as suggesting that the specific language used in the
-37-
respective forms was necessary to the court's decision to sustain
the conviction. The courts merely found that the cited language
was sufficient. Indeed, we see no material difference between the
language used in the Form I-590 here and the language used in the
forms in McCarthy and Mattox. The Form I-590 stated that "I ____,
do swear (affirm) that I know the contents of this registration
subscribed by me . . . are true to the best of my knowledge."
Our precedent confirms that the language proffered by
Boskic as necessary for a conviction is not required. We have, in
fact, upheld false statement convictions when the forms at issue
did not have the language cited by Boskic. In United States v.
Concemi, 957 F.2d 942 (1st Cir. 1992), defendants were charged with
making false statements to a federally insured bank in violation of
18 U.S.C. § 1014. Id. at 944. The government alleged that the
defendants had knowingly executed HUD-1 certificates that omitted
information about pertinent secondary mortgages. The oath on these
certificates stated: "The HUD-1 Settlement Statement which I
prepared is a true and accurate account of this transaction." Id.
at 947 n.7. This oath simply required the defendant to attest to
the truth and accuracy of the information provided. The oath did
not certify that the information was true and complete nor was
there any reference to "all." Nonetheless, we found that this oath
was sufficient to uphold the denial of a motion for a judgment of
-38-
acquittal on a charge of making false statements that took the form
of omissions. Id. at 950.
Similarly, in United States v. Leach, 427 F.2d 1107 (1st
Cir. 1970), we held that defendants who omitted information on
forms for a home improvement loan while swearing that the
information provided was true were guilty of making false
statements in connection with an application for a home improvement
loan. Id. at 1111. In neither case did we indicate that it was
problematic that the oath on the form did not explicitly require
the applicant to attest to the completeness of his response. As
such, our precedent establishes that a jury can properly find that
the defendant made a false statement by swearing that the
incomplete answers to questions on a form are truthful even if the
defendant does not also swear that the responses to the questions
on the form are complete.
There is nothing unfair or illogical about this approach.
While some forms might add "all" or "complete" to the description
of information sought, the absence of those words does not suggest
that only partial information is sought. A request on a form that
says "military service" plainly means that the details of all prior
military service should be furnished. Indeed, Boskic's response to
question thirteen, listing all of his educational background in
response to a similarly framed inquiry into his education and
schooling, indicates that Boskic understood a complete response was
-39-
requested. Also, he submitted the form in Serbo-Croatian, as well
as in English. Therefore, his understanding of what was asked of
him was not limited by any lack of familiarity with the language in
which the form was written.18 Accordingly, we affirm the district
court's denial of the motion to acquit on Count One because a
reasonable jury could have found that Boskic made a false statement
about his military service on his Form I-590. See United States v.
Hatch, 434 F.3d 1, 6 (1st Cir. 2006) ("The government proved, and
a rational jury found beyond a reasonable doubt, that the only
sensible reading of [the question] demanded that [the defendant]
report his entire . . . history.").
B. Count Two: Application to Register as a Permanent Resident or
Adjust Status, Form I-485
Boskic also challenges the sufficiency of the evidence
on Count Two, which alleged that he knowingly made a false
statement under oath concerning a material fact on his application
for permanent resident status. Again, the statement at issue was
Boskic's omission of his service in the Army of the Republika
Srpska. This time, the response was to question fourteen in Part
C of Form I-485. The instructions on the form stated:
List your present and past membership in or affiliation with
every political organization, association, fund, foundation,
18
Francis Monin, the Immigration Officer who interviewed
Boskic in Germany and processed his application, testified that
applicants submitted their forms in both their native language and
English. The applicants had the responsibility to obtain the
English translations.
-40-
party, club, society or similar group in the United States or
in other places since your 16th birthday. Include any foreign
military service in this part. If none, write 'none.'
Include the name(s) of the organization(s), location(s), dates
of membership from and to, and the nature of the
organization(s). If additional space is needed, use a
separate piece of paper.
Boskic does not argue, because he cannot, that the
question as written did not require a complete answer or that it
was ambiguous with respect to the information requested. The
question explicitly asks that Boskic provide his membership and
affiliation with every organization listed. Although the use of
"any" to modify "foreign military service" could, in a different
context, suggest that listing some but not all past military
service would suffice, in this context such a reading is not
possible.19 This question demands that the applicant list every
past organizational affiliation or membership. The reference to
"any foreign military service" indicates that all memberships or
affiliations with a foreign military must be listed.
Instead, Boskic argues that the district court erred in
denying his motion for a judgment of acquittal on Count Two because
the government's own evidence suggests that he was responding to
the question as it was posed to him by the IRC volunteer, Dr.
Gehani, who testified that she did not read the questions on the
form verbatim. Boskic reasons that since he was responding to the
19
The Oxford English Dictionary provides multiple definitions
for the word "any." Depending on the usage, "any" can mean "all"
or it could connote "some."
-41-
question as paraphrased by Gehani, and the exact wording of that
paraphrase is unknown, he cannot be found guilty of making a false
statement. He invokes the doctrines of fundamental ambiguity and
literal truth in support of his contention. See United States v.
Richardson, 421 F.3d 17, 32-34 (1st Cir. 2005).
Because the falsity of an answer must be evaluated with
reference to the question asked, see Bronston v. United States, 409
U.S. 352, 355 n.3 (1973), we begin by considering the content of
the question that triggered Boskic's allegedly false response.
1. What was the question?
As an initial matter, we reject Boskic's assertion that
he may not be found guilty because there was no reliable evidence
of the question Gehani asked him. The government offered two
possible scenarios for determining the question posed. It
attempted to show that Boskic had read and understood the form
itself, which would have allowed the jury to attribute to him
knowledge of the question as asked on the form irrespective of
Gehani's translation. Alternatively, the government elicited
testimony from Gehani about her customary practice in translating
question fourteen, see infra, and the jury could have concluded
that she followed that practice with Boskic. Whether the question
asked by Gehani was "fundamentally ambiguous," precluding a finding
that Boskic's answer to it was false, is a separate issue that we
-42-
take up only after discussing whether the relevant inquiry should
focus on her question or the form's.
a. Did Boskic read and understand the I-485?
The government maintains that the jury could have found
that Boskic read Form I-485 himself and that his English skills
were sufficiently developed for him to understand that Form I-485
called for a response that included his service in the Army of the
Republika Srpska. There are multiple problems with this argument.
Most significantly, the record lacks evidence that Boskic
was capable of reading and understanding the I-485, which was
submitted only in English. Although he unquestionably had acquired
some ability to communicate verbally in English by the time he
completed the form about a year after arriving in the United
States, the government cites no evidence that he had written
language skills at that time. It points out that Boskic checked
off that his English ability was "Good" on another government form
he completed the same day as the I-485, and that he had been
employed as a cashier at a K-Mart, "confirm[ing] that he had the
ability to communicate in English on at least a functional level."
The government further cites telephone conversations with the IRC
about the status of his application. However, none of this
evidence speaks to Boskic's written language ability.
In addition, unlike his experience with immigration forms
he completed in Germany, there is no evidence that Boskic had
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access to a Serbo-Croatian or Bosnian version of the I-485. Boskic
had submitted the I-590 in Germany in both English and Serbo-
Croatian. Immigration Officer Monin, who interviewed Boskic in
Germany, testified about another document that Boskic submitted
there, the G-646, which asked applicants to confirm that they were
not within any of sixteen inadmissible classes of aliens. The
record contains Serbo-Croatian and English versions of the G-646
that were signed only by Boskic and a third version of the form,
written in Bosnian, that was signed by Monin as well. Monin
explained that, consistent with his usual practice, his signature
would appear on the version of the form that the applicant signed
in his presence after reading it. Thus, in Germany, Boskic read
and relied on forms written in Serbo-Croatian or Bosnian.
Nor did Gehani's testimony provide any basis for an
inference that Boskic had read the I-485 independently. Gehani
wrote the answers on the form, and her testimony did not indicate
that Boskic read along as she proceeded through the questions. The
record is also silent as to whether Boskic read either the
questions or the responses written by Gehani before he signed the
document. Gehani testified that, even when her clients spoke
English, she would complete the forms for them when they "were
illiterate or they just didn't have a good command of written
English."
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The record thus contains insufficient evidence to permit
the jury to conclude that Boskic had read and understood the I-485
form on his own.20
b. What Question Did Gehani Ask?
The question then becomes whether the jury could
reasonably conclude that Boskic responded to a specific paraphrase
of the form's question by Gehani. Gehani testified that she had no
recollection of her particular encounter with Boskic, including
whether he was accompanied by an interpreter. Although she stated
that she did not use precisely the same wording each time she
paraphrased, she testified that her customary practice with respect
to Part C's question fourteen was to ask "clients if they had ever
been in the military or in any political group either here or in
another country." This evidence, viewed in the light most
favorable to the verdict, permitted the jury to conclude that this
customary question was the question Gehani asked Boskic. Indeed,
it is the only version of the question that is supported by the
record. Moreover, Gehani's customary paraphrase of the question --
which does not explicitly ask Boskic to report all of his military
service -- is favorable to Boskic, who does not dispute that Gehani
asked him some question about his military background. We
therefore must determine whether Boskic could be found guilty on
20
One judge on the panel disagrees.
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Count Two because he responded to Gehani's question by reporting
only his service in the Yugoslav Army.
2. Was Boskic's response on the Form I-485 false?
a. Fundamental Ambiguity
Boskic argues that he could not be found guilty for
responding as he did to Gehani's question because he was asked only
whether he had "ever" been in the military. He suggests that it
was reasonable for him to conclude that disclosing any military
experience was an appropriate and truthful response to that
question,21 and he relies on case law holding that a defendant may
not be found guilty of making a false statement based on jury
speculation about how the defendant understood a fundamentally
ambiguous question. See, e.g., Richardson, 421 F.3d at 33 (holding
that, in the case of a "fundamentally ambiguous" question, "'we
cannot allow juries to criminally convict a defendant based on
their guess as to what the defendant was thinking at the time the
response was made'" (quoting United States v. Manapat, 928 F.2d
1097, 1101 (11th Cir. 1991))).
The flaw in Boskic's argument is that the question that
he was asked was not "fundamentally ambiguous." We have recognized
21
Boskic argued in his reply brief that the evidence showed
that his forced participation in the Army of the Republika Srpska
was outside the scope of the question about military service.
Arguments advanced for the first time in a reply brief are deemed
waived, United States v. Marti-Lon, 524 F.3d 295, 299 n.2 (1st Cir.
2008), and we therefore do not address that contention.
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a distinction between questions that are "truly ambiguous" and
those that are "arguably ambiguous," and have held that only the
former prevent a jury from deciding that the defendant's response
was false. See Richardson, 421 F.3d at 33. Although we
acknowledged the impossibility of "'defin[ing] the point at which
a question becomes fundamentally ambiguous, and thus not amenable
to jury interpretation,'" id. at 34 (quoting United States v.
Farmer, 137 F.3d 1265, 1269 (10th Cir. 1998)), we endorsed a
suggested formulation:
A question is fundamentally ambiguous when it
"is not a phrase with a meaning about which
men of ordinary intellect could agree, nor one
which could be used with mutual understanding
by a questioner and answerer unless it were
defined at the time it were sought and offered
as testimony."
Id. (citations omitted). We have also posed this threshold
question differently, asking in United States v. Rowe, 144 F.3d 15,
21 (1st Cir. 1998), if the record revealed any "objectively
reasonable interpretation of the question under which the answer is
not even false." See also United States v. Prigmore, 243 F.3d 1,
17-18 & n.2 (1st Cir. 2001) (citing Rowe for the proposition that
defendants' intent should be assessed based on an interpretation of
the pertinent statutory requirements that is "most congenial to
their case theory and yet also objectively reasonable").
Although phrased differently, these inquiries serve the
same purpose in a perjury or false statement trial involving an
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ambiguous question. They are questions that the court should pose
to itself in deciding whether a reasonable jury, given the language
of the question to the defendant and the context in which it was
asked, could conclude beyond a reasonable doubt that the defendant
knew that the answer he gave was false. We have no reservations
about concluding that a reasonable jury could make that
determination here.
Question fourteen as paraphrased by Gehani was
susceptible to two straightforward interpretations; it asked either
for "sample" military service or for all such service. The
question for the jury was thus whether, despite the ambiguity of
Gehani's language, Boskic knew that the Form I-485 asked him to
disclose all of his military service and, hence, he knew that he
had made a false statement by omitting his service in the Army of
the Republika Srpska. The jury's task was to "examine 'the
question and answer . . . in the context of the investigation as a
whole and the state of the defendant's knowledge.'" Richardson,
421 F.3d at 32 (quoting DeZarn, 157 F.3d at 1048); see also id. at
33 ("In determining whether a statement made in response to an
ambiguous question could be said to be false, 'the context of the
question and answer becomes critically important.'") (quoting
Farmer, 137 F.3d at 1269).
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The district court properly charged the jurors with that
specific task, directing them to determine how Boskic understood
the question he was asked:22
So what are you doing? What you're
doing is asking what does this question ask?
What was the question that was actually put to
him? And because we have evidence regarding
the way in which these questions were asked
and the circumstances in which they were
presented, you're going to have to . . .
imaginatively project yourself into these
circumstances. There has been a suggestion
that an interpreter or translator paraphrased
the questions in some fashion. You'll have to
evaluate whether or not the substance of the
question was presented to Mr. Boskic, and in
response he responded falsely as the
Government claims.
Now, with respect to Counts 1 and 3,
the Government says that the falsehood is an
answer which can only reasonably be read to
say that he belonged to the Yugoslav National
Army and no other. So, you'll look at this
question, the form in which the question is
presented, and then you will think about how
was the question actually presented to him,
and then you'll think about did he know that
what he was saying was false. . . .
You turn to Count 2. And it focuses on
the same kind of question, but you'll have to
22
The jury instructions also relied on language from Rowe,
telling the jurors that, "[i]f a question on the form at issue can
be interpreted in more than one way, the Government must prove that
the defendant's answer was false under any reasonable
interpretation." See Rowe, 144 F.3d at 21. However, as we read
our precedents, the question of objective reasonableness was for
the judge to decide in considering whether the government had
presented enough evidence to allow the jury to find the statement
false. See Prigmore, 243 F.3d at 18 n.2 (recognizing that "a
reasonableness determination sometimes requires preliminary
resolution of factual disputes," but that, "as a legal question,
the reasonableness of defendants' understanding is ultimately a
question for the judge").
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look at it very carefully regarding military.
How was it understood by the defendant? Was
his answer inaccurate, false, and did he know
it to be false?
Given the context, the jury's judgment that Boskic's
response was false is unassailable. The Form I-485, like the Form
1-590, requested the details of the applicant's background. The
jurors were entitled to factor in Boskic's earlier experience with
the I-590, which they supportably found to require disclosure of
his entire military history, when considering his knowledge of the
information about his military service sought by the government a
year later. They also heard the critical evidence that Boskic had
been advised in Germany to avoid disclosing his service in the Army
of the Republika Srpska to immigration authorities, and that he had
said to FBI Agent Hughes, "if you had a woman that you loved and
wanted to be with her, wouldn't you lie to keep her?" Based on
that evidence and his prior experience, and notwithstanding
Gehani's imprecise paraphrasing, the jury reasonably could find
that Boskic understood that the question posed by Gehani demanded
disclosure of all of his military activity. Hence, the jury
properly found that Boskic's incomplete answer to question fourteen
on Form I-485 constituted a false statement that he had served only
in the Yugoslav Army. See Hatch, 434 F.3d at 6 ("The government
proved, and a rational jury found beyond a reasonable doubt, that
the only sensible reading of Question 18 demanded that Hatch report
his entire OUI history.").
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b. Literal Truth
The literal truth defense articulated in Bronston v.
United States, 409 U.S. 352 (1973), arose from the Supreme Court's
recognition that witnesses facing interrogation will at times give
misleading answers when under pressure to respond. The Court
observed that "[s]ometimes the witness does not understand the
question, or may in an excess of caution or apprehension read too
much or too little into it." 409 U.S. at 358. Insisting that
"[p]recise questioning is imperative as a predicate for the offense
of perjury," id. at 362, the Court held that "a jury could not be
allowed to consider a perjury charge where the allegedly false
statement was 'literally true but not responsive to the question
asked and arguably misleading by negative implication.'"
Richardson, 421 F.3d at 33 (quoting Bronston, 409 U.S. at 353). In
such instances, the questioner bears the burden to clarify the
statement through additional inquiry. Bronston, 409 U.S. at 358-
59. ("If a witness evades, it is the lawyer's responsibility to
recognize the evasion and to bring the witness back to the mark, to
flush out the whole truth with the tools of adversary
examination."); United States v. Reveron Martinez, 836 F.2d 684,
690 (1st Cir. 1988) ("Since the matter was not contemporaneously
pursued, the government is saddled with what was said, rather than
what might have been meant.").
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The literal truth defense is inapplicable to the facts of
this case, where the focus is on the ambiguity of the question
asked. Bronston involved an unambiguous question, and a non-
responsive answer that was literally true but misleading by
negative implication.23 That negative implication created an
ambiguity in the response, which the questioner failed to resolve
through appropriate follow-up questions. It is in that sense that
the Bronston court explains the importance of precise questioning
by the examiner.
Indeed, we question whether the literal truth defense as
articulated in Bronston is appropriately invoked outside the
context of adversary questioning. The Court expressly stated in
Bronston that the defendant's response to "testimonial
interrogation" should not "be measured by the same standards
applicable to criminally fraudulent or extortionate statements."
Id. at 358 & n.4. The Court elaborated:
In that context, the law goes "rather far in
punishing the intentional creation of false
impressions by a selection of literally true
23
In Bronston, the defendant had been asked while testifying
under oath at a bankruptcy hearing if he currently had any accounts
in Swiss banks. 409 U.S. at 354. He answered no and then was
asked if he ever had had such accounts. He replied: "The company
had an account there for about six months, in Zurich." Both
answers were true, although the defendant also had previously had
Swiss accounts. The Court acknowledged the "implication in the
answer to the second question that there was never a personal bank
account," 409 U.S. at 357, but concluded that the lawyer should
have followed up "to pin the witness down to the specific object"
of the inquiry, id. at 360.
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representations, because the actor himself
generally selects and arranges the
representations." In contrast, "under our
system of adversary questioning and cross-
examination the scope of disclosure is largely
in the hands of counsel and presiding
officer."
Id. at 358 n.4 (quoting Model Penal Code).
At its core, Bronston is a reminder to the government
that testimonial interrogation permits the government to resolve
the ambiguities created by nonresponsive answers with follow-up
questions. The government may lose the opportunity to have a jury
resolve the ultimate question of falsity if it is not alert to the
need for those follow-up questions. However, whether or not the
literal truth defense is generally inapplicable to non-testimonial
statements, it does not assist Boskic in this case. There is no
basis for disturbing the jury's verdict on Count II.
Affirmed.
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United States v. Boskic
Court: Court of Appeals for the First Circuit
Date filed: 2008-10-22
Citations: 545 F.3d 69
Copy CitationsCombined Opinion