United States v. Boskic

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.

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 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.

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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

-47-
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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