           Case: 18-13147   Date Filed: 01/04/2019   Page: 1 of 8


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13147
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:18-cr-60021-BB-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,


                                  versus


MICHAEL ROY FRASER,

                                              Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (January 4, 2019)

Before JILL PRYOR, BRANCH and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Michael Roy Fraser, a Jamaican citizen, was convicted by a jury of

unlawfully procuring a certificate of U.S. naturalization, see 18 U.S.C. § 1425(a),

and using an unlawfully procured certificate of naturalization as proof of

citizenship, see 18 U.S.C. § 1423. At trial, the government introduced a

videotaped recording of a U.S. Citizenship and Immigration Services (“USCIS”)

agent’s interview with Fraser, in which Fraser admitted he paid a U.S. citizen for

marrying him so he could become a lawful permanent resident. On appeal, Fraser

argues that the district court should have suppressed the videotaped recording

because the USCIS agent did not deliver Miranda warnings 1 to Fraser prior to

initiating the interview. After careful review, we affirm.

             I.     FACTUAL AND PROCEDURAL BACKGROUND

      The government presented the following facts at trial. Fraser, a Jamaican

citizen, married a U.S. citizen and became a naturalized U.S. citizen. Fraser later

submitted a petition asking for a non-citizen relative to be considered for

permanent resident status. That petition stated that Fraser’s marriage to his U.S.

citizen wife had ended and that he subsequently had married a Jamaican citizen,

for whom he was now requesting permanent resident status based on his own U.S.

citizenship. To adjudicate Fraser’s petition for his new wife to obtain permanent




      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

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residency, a USCIS Immigration Officer requested that Fraser come to a USCIS

field office for two interviews.

       At the second interview, the Immigration Officer escorted Fraser to the

office of a USCIS Fraud Detection Unit duty officer. The duty officer conducted a

videotaped interview with Fraser, and both the video and a government-prepared

transcript of its contents were introduced at trial. No one gave Fraser Miranda

warnings prior to or during his interview with the Fraud Detection Unit duty

officer. The duty officer asked Fraser, “Was your marriage to [the U.S. citizen] a

real marriage or did you marry her just so you could get your green card in the

United States?” Doc 71 at 96.2 Fraser answered that he had married the U.S.

citizen “[t]o get the green card.” Id. Fraser also told the duty officer that he had

paid the U.S. citizen several thousand dollars after they married. More than three

years after this interview, Fraser was indicted and arrested on the instant charges.

       Fraser’s trial counsel never moved to suppress the videotape, whether on the

basis that Fraser should have received Miranda warnings or on any other basis.3

The jury convicted Fraser of unlawfully procuring a certificate of U.S.

naturalization, see 18 U.S.C. § 1425(a), and using an unlawfully procured

certificate of naturalization as proof of citizenship, see 18 U.S.C. § 1423. The

       2
           “Doc. X” refers to the numbered entry on the district court’s docket.
       3
         Fraser’s trial counsel did object to the tape’s admission on other grounds, but the district
court overruled those objections, and Fraser’s new counsel does not reassert them on appeal.

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district court revoked his U.S. citizenship and sentenced him to concurrent prison

terms of six months followed by concurrent supervised release terms of three

years. Fraser timely appealed.

                              II.    STANDARD OF REVIEW

       With new counsel on appeal, Fraser for the first time argues that the USCIS

Fraud Detection Unit duty officer’s failure to provide him Miranda warnings

violated his Fifth Amendment right against self-incrimination and required

suppression of his statements to the duty officer.4 The Government thus asserts,

and Fraser never contests, that the plain error standard applies to our review of this

issue. Accordingly, we apply the plain error standard. See Fed. R. Crim. P. 51(b),

52(b); United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005).

       To reverse a conviction based on plain error, the defendant bears the burden

of showing that (1) the district court erred; (2) its error was plain; (3) the error

affected substantial rights; and (4) the error “seriously affects the fairness, integrity

or public reputation of judicial proceedings.” United States v. Olano, 507 U.S.

725, 732 (1993) (internal quotation marks omitted) (alteration adopted); see also

United States v. Margarita Garcia, 906 F.3d 1255, 1266-67 (11th Cir. 2018).


       4
          Fraser also contends that the lack of Miranda warnings violated his Sixth Amendment
right to counsel, but because formal judicial prosecution did not start until after the videotaped
interview, his Sixth Amendment rights did not attach until after the interview. See United States
v. Woods, 684 F.3d 1045, 1056 n.8 (11th Cir. 2012); United States v. Hidalgo 7 F.3d 1566, 1569
(11th Cir. 1993). We summarily reject this part of Fraser’s claim.

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Even if the defendant satisfies all four criteria, correcting a plain error is a decision

left to our discretion. Olano, 507 U.S. at 732, 735.

                                    III.   DISCUSSION

       We affirm Fraser’s conviction, because even if the district court erred under

the first prong of the plain error standard by admitting the videotape of the USCIS

duty officer’s interview of Fraser—an issue we expressly do not decide—such

error was not plain under the second prong. 5 The exclusionary rule applies only to

statements made in the absence of Miranda warnings during “custodial

interrogation.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). We assume—but

again do not decide—that the USCIS Fraud Detection Unit duty officer was asking

questions reasonably designed to elicit incriminating information and that therefore

an interrogation was underway. See Rhode Island v. Innis, 446 U.S. 291, 301-02

(1980). Nevertheless, the question remains whether Fraser was “in custody.”

Miranda, 384 U.S. at 445. After a careful search, we have not found, and Fraser

has not identified, any case from the Supreme Court, our Court, or any other

federal court of appeals holding that a person who voluntarily attends an interview

at a USCIS office to seek permanent residency for a non-citizen relative is taken

into custody and that his un-Mirandized statements to USCIS agents regarding his


       5
         See, e.g., United States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012) (resolving issue
by looking only at the second prong of the plain error standard); United States v. King, 73 F.3d
1564, 1572 (11th Cir. 1996) (same).

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citizenship or his application on behalf of his non-citizen relative must be

suppressed in a criminal proceeding.

      None of the four cases on which Fraser relies comes close to standing for

this proposition. In Mathis v. United States, a federal agent visited the defendant

while he was imprisoned for a state conviction and elicited from him un-

Mirandized incriminating statements regarding federal tax refunds. 391 U.S. 1, 2-3

& n.2 (1968). The Supreme Court ruled that the statements should have been

suppressed, rejecting the government’s argument that Miranda should not apply

because the defendant was in custody for a reason unrelated to the federal

investigation. Id. at 4-5. Mathis does not control here. The government never

disputed in Mathis whether the defendant was in custody; it disputed only whether

that particular custody counted for Miranda purposes when the reason for the

custody was unrelated to the federal investigation. Moreover, unlike in Mathis,

Fraser was not imprisoned when he was interviewed.

      In United States v. Griffin, which Fraser quotes but fails to cite, two FBI

agents questioned the defendant at home for two hours. 922 F.2d 1343, 1346 (8th

Cir. 1990). The agents sent the defendant’s parents upstairs so that they could

speak privately with the defendant, ordered him to stay in their view at all times,

insisted on escorting him each time he requested permission to obtain cigarettes

from other places in the house, and arrested him at the end of the interview. Id.


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The Eighth Circuit held that the defendant’s statements to the FBI agents should

have been suppressed because these facts, taken together, made the interrogation

custodial. Id. at 1354-57. But these circumstances are a far cry from Fraser’s

interview with the USCIS Fraud Detection Unit duty officer. Fraser came to the

USCIS office voluntarily, nothing in the record suggests any kind of restraint on

his freedom to move or leave, and Fraser was not arrested until years after the

videotaped interview.

      In United States v. Mata-Abundiz, an Immigration and Naturalization

Services (INS) agent questioned the defendant while he was held in pretrial

detention in a county jail for alleged violations of state statutes. 717 F.2d 1277,

1278 (9th Cir. 1983). The Ninth Circuit held that the defendant’s statements

should have been suppressed because the INS agent’s questions were reasonably

likely to elicit incriminating responses. Id. at 1280. But the only question the

court decided was whether the INS agent’s questioning constituted “interrogation”

for Miranda purposes, id. at 1279; it was undisputed that the defendant was in

custody when the questioning occurred.

      And in United States v. Arango-Chairez, an INS agent called the defendant

while he was incarcerated in a county jail for an alleged violation of a state statute

and questioned him in person at the county jail the next day. 875 F. Supp. 609,

611-12 (D. Neb. 1994). The district court held that the defendant was in custody


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for Miranda purposes during the phone and in-person interviews. Id. at 615-16.

We do not see Arango-Chairez as lending persuasive authority because Fraser was

not incarcerated at the time he was questioned.

      “[W]here neither the Supreme Court nor this Court has ever resolved an

issue, and other circuits are split on it, there can be no plain error in regard to that

issue.” United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (citing

United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999)). Therefore, even

assuming that the district court erred in declining to suppress the videotape of the

USCIS Fraud Detection Unit duty agent’s interview of Fraser, the district court’s

error was not plain.

                                IV.    CONCLUSION

      For the foregoing reasons, we AFFIRM Fraser’s convictions.

      AFFIRMED.




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