                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-1755
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *    Appeal from the United States
                                       *    District Court for the District
      v.                               *    of Minnesota.
                                       *
Mohamad Elzahabi,                       *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: November 11, 2008
                                Filed: March 5, 2009
                                 ___________

Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
                          ___________

BENTON, Circuit Judge.


       A jury convicted Mohamad Kamal Elzahabi on three counts of knowingly
possessing and using a fraudulently obtained immigration document in violation of
18 U.S.C. § 1546(a). The district court1 sentenced him to time served and two years
of supervised release. Elzahabi appeals, claiming that the court should have
suppressed his incriminating statements, and that the evidence was insufficient.
Jurisdiction being proper under 28 U.S.C. § 1291, this court affirms.


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
                                         I.

                                        A.

      Elzahabi, a citizen of Lebanon, entered the United States in May 1984 on an F-1
student visa. He coordinated with a club manager to pay a performer $5,000 to marry
him. After their marriage in 1984, they held a joint bank account, but never lived
together or exchanged rings, and had sexual contact once, for which Elzahabi paid.

       Elzahabi filed for permanent residency on April 3, 1986, based upon the
marriage. At the time, the couple indicated they lived together and she had taken
Elzahabi’s last name. She later testified that this information was false. Elzahabi
received a green card in June 1986 which he used three times during 2001 and 2002,
resulting in the three counts charged.

                                         B.

       In April 2004, the FBI, believing that Elzahabi was dangerous, began
investigating his links with suspected terrorists. A police officer, Sergeant Andrew
Smith, befriended Elzahabi. Elzahabi told Smith he was interested in obtaining U.S.
citizenship. Smith offered to arrange a meeting with FBI agents to assist with his
citizenship. Elzahabi agreed.

       Elzahabi met with Smith and FBI agents Harry Samit and Chris O’Leary on the
evening of April 16 to discuss citizenship. After preliminary discussion, the agents
invited him to continue the interview at their field office, which Elzahabi accepted.
Elzahabi and the agents arrived at the FBI office at about 1:00 a.m. on April 17. The
agents informed Elzahabi that the interview was voluntary, that he did not have to
continue speaking with them, and that he could change his mind at any time about
talking to them.

                                         -2-
       The agents interviewed Elzahabi in the break room of the FBI office from 1:00
a.m. until 6:00 or 7:00 a.m. on April 17. The agents asked about his marriage.
Elzahabi replied, “This is against me one-hundred percent. Let’s put that aside.” The
agents immediately stopped questioning about the marriage, but continued the
interview. At the end of the interview, the agents thanked Elzahabi for his
cooperation, reminding him the interview was voluntary. The agents offered him the
option of terminating the interview and going home, or staying at a hotel at the FBI’s
expense, with more interviews the next evening. Elzahabi accepted the second option.
Two agents accompanied him at all times during his hotel stay.

       The second interview occurred on April 17 between 7:00 p.m. and midnight.
Before questioning, the agents informed Elzahabi that the interview was voluntary,
that he could stop talking at any time, and that he had the right to an attorney if he
desired. Elzahabi replied that he did not need an attorney, expressing eagerness to
continue the interview.

       The interviews continued until May 4. For all interviews after April 17, agents
advised Elzahabi of his Miranda rights. On April 19 and May 3, he made
incriminating statements about his marriage. On May 4, Elzahabi decided to terminate
the interviews. The agents stopped the questioning, and released him. Later that day,
Elzahabi was arrested by federal agents on an unrelated warrant.

                                         II.

       Before trial, Elzahabi moved to suppress statements he made during his
interviews with the agents, arguing that their failure to give him Miranda warnings
at the outset of questioning on April 17 rendered all his statements inadmissible. The




                                         -3-
district court denied the motion, ruling that the agents had no obligation to give
Miranda warnings because Elzahabi was not in custody.2

        This court reviews for clear error a district court's factual determinations
supporting a denial of a motion to suppress, and its conclusions of law, including the
ultimate question of custody, de novo. United States v. Flores-Sandoval, 474 F.3d
1142, 1144 (8th Cir. 2007); United States v. Ollie, 442 F.3d 1135, 1137 (8th Cir.
2006). This court reverses a denial of a motion to suppress only if the decision “is
unsupported by substantial evidence, based on an erroneous interpretation of
applicable law, or, based on the entire record, it is clear a mistake was made.” Flores-
Sandoval, 474 F.3d at 1144, quoting United States v. Harper, 466 F.3d 634, 643 (8th
Cir.2006).

                                            A.

        Law enforcement officials must administer Miranda warnings before
interrogating individuals in their custody. United States v. Brave Heart, 397 F.3d
1035, 1038 (8th Cir. 2005). An individual is in custody when placed under formal
arrest, or when his or her freedom is restricted to a degree akin to formal arrest. Ollie,
442 F.3d at 1137. Whether Elzahabi was in custody turns on whether, under the
totality of the circumstances he faced at the time of his questioning, a reasonable
person in his position would have felt free to end the interrogation and leave. See
Brave Heart, 397 F.3d at 1038-39.

       In United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990), this court
identified six factors to consider in determining whether an individual is in custody
for the purposes of Miranda: (1) whether the suspect was informed that he or she was
free to leave and that answering was voluntary; (2) whether the suspect possessed


      2
       United States v. Elzahabi, 502 F. Supp. 2d 915 (D. Minn. 2007).

                                           -4-
freedom of movement; (3) whether the suspect initiated contact or voluntarily
acquiesced; (4) whether strong-arm tactics or strategies were employed; (5) whether
the atmosphere was police-dominated; or, (6) whether the suspect was placed under
arrest at the end of questioning. Id. These factors are not exclusive; custody “cannot
be resolved merely by counting up the number of factors on each side of the balance
and rendering a decision accordingly.” United States v. Czichray, 378 F.3d 822, 827-
28 (8th Cir. 2004). The “most obvious and effective means of demonstrating that a
suspect has been taken into custody” is an express advisement that the suspect is not
under arrest and that his participation in questioning is voluntary. Brave Heart, 397
F.3d at 1039, quoting Griffin, 922 F.2d at 1349.

       The district court correctly held that the agents made clear to Elzahabi that he
was free to leave the interview, and that his answering was voluntary. See Ollie, 442
F.3d at 1138. Before the first interview on April 17, the agents advised him that his
participation was voluntary and that he could terminate the interview whenever he
wished. The agents repeated this advice before questioning him again on the evening
of April 17. An “explicit assertion that the defendant may end the encounter . . . .
generally removes any custodial trappings from the questioning.” Id. The district
court properly concluded that the repeated and explicit advice by the agents weighed
heavily toward a finding of non-custodial status.

       Elzahabi counters that a reasonable person would not have felt free to terminate
the April 17 interviews because they took place in the break room of the FBI field
office. The critical inquiry is not whether the interview took place in a coercive
environment, but rather whether the defendant's “freedom to depart was restricted in
any way.” See United States v. LeBrun, 363 F.3d 715, 720 (8th Cir. 2004) (en banc),
quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977). Elzahabi presented no
evidence that the agents restrained his freedom of movement during questioning.
Where there is no clear indication that the defendant’s freedom to depart is restricted,
a police station interview is non-custodial. Id. at 723.

                                          -5-
        Elzahabi also contends that in determining custody, deceit should weigh heavily
against the government. However, “the coercive aspects of a police interview are
largely irrelevant to the custody determination except where a reasonable person
would perceive the coercion as restricting his or her freedom to depart.” Id. at 721.
Elzahabi claims that deceit by Smith and the agents led him to believe that he was
consulting FBI agents to discuss citizenship. As in LeBrun, whatever coercion existed
in this case would not be perceived by a reasonable person as restricting his freedom
to depart. Id. at 722. The agents repeatedly advised Elzahabi he was free to leave,
they never physically restrained him, and never placed him in handcuffs. The district
court correctly concluded that Elzahabi was not in custody on April 17.

                                          B.

      Elzahabi alternatively argues that the failure of the agents to advise him of his
Miranda rights on April 17 tainted his subsequent Mirandized interviews, in violation
of Missouri v. Seibert, 542 U.S. 600 (2004). Seibert requires that a court determine
whether an officer’s interrogation technique was a “designed,” “deliberate,” or
“calculated” circumvention of Miranda. United States v. Black Bear, 422 F.3d 658,
664 (8th Cir. 2005), citing Seibert, 542 U.S. at 618 (Kennedy, J., concurring).

       The totality of the circumstances does not support the conclusion that the FBI
used a deliberate strategy of staged interrogations. See Black Bear, 422 F.3d at 664.
The agents advised Elzahabi before each interview on April 17 that his participation
was voluntary and that he could stop questioning at any time. Before the second
interview, they added that he had the right to have an attorney present. Further, the
only statements used at trial came several days after the non-Mirandized statements
were made on April 17. See id. This court rejects Elzahabi’s assertion that the FBI’s
failure to Mirandize him before the April 17 interviews tainted subsequent
interrogations.



                                         -6-
                                           III.

       Elzahabi claims that there was insufficient evidence to support a guilty verdict
under § 1546(a). This court reviews the sufficiency of the evidence de novo, viewing
the evidence in the light most favorable to the jury verdict and giving the verdict the
benefit of all reasonable inferences. United States v. Birdine, 515 F.3d 842, 844 (8th
Cir. 2008). This court reverses “only if no reasonable jury could have found the
defendant[ ] guilty.” United States v. Johnson, 450 F.3d 366, 372 (8th Cir. 2006).

       Section 1546(a) makes it a crime to possess or use an alien registration receipt
card, knowing it “to have been procured by means of any false claim or statement, or
to have been otherwise procured by fraud or unlawfully obtained.” 18 U.S.C. §
1546(a).

       As in the district court,3 Elzahabi argues that the evidence was insufficient
because the prosecution failed to prove that his marriage was invalid. In Lutwak v.
United States, the Court considered convictions for conspiring to commit immigration
fraud in violation of § 1546. The Court upheld their convictions despite the formal
validity of the marriages:

      “We do not believe that the validity of the marriages is material. No one
      is being prosecuted for an offense against the marital relation. . . . [W]hen
      one of the aliens stated that he was married, and omitted to explain the
      true nature of his marital relationship, his statement did, and was intended
      to, carry with it implications of a state of facts which were not in fact
      true.”

344 U.S. 604, 611-12 (1953).



      3
       United States v. Elzahabi, 517 F. Supp. 2d 1121 (D. Minn. 2007).

                                          -7-
       Elzahabi relies on two cases distinguishing Lutwak. See United States v.
Diogo, 320 F.2d 898, 905 (2d Cir. 1963); United States v. Lozano, 511 F.2d 1, 5-6
(7th Cir. 1975). The Diogo court recognized Lutwak, but reasoned that § 1546
encompassed two distinct offenses – concealment of a material fact and false
representation. 320 F.2d at 902. According to the Diogo majority, Lutwak prohibited
considering the validity of the marriage only where the charges alleged concealment
of a material fact. Id. at 904. On the false representation charges before it, the Diogo
court reversed the convictions because the prosecution “failed . . . to sustain its burden
of [ ] proving that the marriages were void at the time appellant’s representations
concerning the marital status were made.” Id. at 909; see also Lozano, 511 F.2d at
5 (“[W]e choose to follow the reasoning of the Second Circuit [in Diogo] and to
vacate the judgment and sentence on [the false statement] counts.”).

      Other courts have questioned Diogo’s reasoning. See United States v. Yum,
776 F.2d 490 n.2 (4th Cir. 1985) (“We reject the reasoning of [Diogo and Lozano] and
follow that of the Supreme Court in Lutwak.”); United States v. Bolden, 23 M.J. 852,
854-55 (A.F.C.M.R. 1987) (following the Diogo dissent and Yum), aff’d 28 M.J. 127
(C.M.A. 1989); cf. Diogo, 320 F.2d at 909 (Clark, J., dissenting).

       The Lutwak court favorably discussed United States v. Rubenstein, 151 F.2d
915 (2d Cir. 1945). 344 U.S. at 612-13. In that case, the Second Circuit upheld a
conviction of conspiring to bring an alien into the country by false representations,
false documents, and concealment of material facts, even though the marriage was
valid.4 Rubenstein, 151 F.2d at 918. Neither Lutwak nor Rubenstein draws a
distinction between false representation and concealment charges.




      4
       The defendant in Rubenstein was convicted under 8 U.S.C. § 220(c), the
precursor to 18 U.S.C. § 1546. See Lutwak, 344 U.S. at 608.

                                           -8-
         This court need not choose among the circuits because the present case is a
concealment offense not distinguishable from Lutwak. See Diogo, 320 F.2d at 903
(“It is conceded by the Government that the basic substantive offense with which the
present indictment charges each of the appellants is that of making false
representations with respect to his marital statute.”); Lozano, 511 F.2d at 5 (“[T]hese
indictments turn on whether it was a false statement to say that petitioner was married
. . . .”). In the present case, Elzahabi was indicted and prosecuted on a concealment
charge. See United States v. Pantelopoulos, 336 F.2d 421, 424 (2d Cir. 1964)
(following Lutwak where “[u]nlike United States v. Diogo, there was no charge in this
case that the conspirators had falsely represented the alien’s marital status.”). The
government presented evidence at trial that Elzahabi obtained his green card by
concealing the nature of his marriage. The government established that he then used
his green card three times during 2001 and 2002. A reasonable juror could conclude
that there was sufficient evidence to find Elzahabi guilty beyond a reasonable doubt.
See United States v. Amahia, 825 F.2s 177, 182 (8th Cir. 1987) (rejecting an
insufficiency claim where the defendant entered a sham marriage and lied to INS
agents).

      Elzahabi also argues that his marriage was statutorily legal in 1984, before the
Immigration Marriage Fraud Amendments of 1986 were enacted. See Pub. L. No. 89-
236, 79 Stat. 911 (October 3, 1965); Pub. L. 99-639, 100 Stat. 3537 (Nov. 10,
1986). While the 1986 amendments did change certain provisions in immigration law,
they did not change the language or elements of § 1546. Upholding the defendants’
convictions in Lutwak, the Court stated in 1953 that “Congress did not intend to
provide aliens with an easy means of circumventing [its] system by fake marriages in
which neither of the parties ever intended to enter into the marital relationship.” 344
U.S. at 611.

      Elzahabi next challenges the denial of his jury instruction defining marriage
consistent with Diogo and Lozano. A defendant is entitled to a theory-of-defense

                                         -9-
instruction that is timely requested, supported by the evidence, and correctly states the
law. United States v. Claxton, 276 F.3d 420, 423 (8th Cir. 2002). This court
concludes that Diogo and Lozano do not completely state the law for this case. The
district court committed no error in denying the instruction. See United States v.
Johnson, 278 F.3d 749, 752 (8th Cir. 2002) (affirming jury instructions if, as a whole,
they “fairly and adequately submitted the issues to the jury”).

                                          IV.

      The judgment of the district court is affirmed.
                     ______________________________




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