                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-1998

United States v. Vasquez De Reyes
Precedential or Non-Precedential:

Docket 97-7328




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Recommended Citation
"United States v. Vasquez De Reyes" (1998). 1998 Decisions. Paper 150.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/150


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Filed July 8, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-7328

UNITED STATES OF AMERICA

v.

BELKI MARIA VASQUEZ DE REYES,

       Appellant

On Appeal from the District Court
of the Virgin Islands
(D.C. No. 96-cr-00079)

Argued December 11, 1997

Before: SLOVITER, STAPLETON and MANSMANN,
Circuit Judges

(Filed July 8, 1998)

       Patricia Schrader-Cooke (Argued)
       Office of Federal Public Defender
       Christiansted, St. Croix,
       U.S. Virgin Islands 00822

        Attorney for Appellant

       David L. Atkinson (Argued)
       Office of the United States Attorney
       Christiansted, St. Croix,
       U.S. Virgin Islands 00822

        Attorney for Appellee
OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant Belki Maria Vasquez De Reyes appeals her
conviction for marriage fraud, 8 U.S.C. S 1325(b) (1991)
(now codified at S 1325(c)), contending that illegally secured
evidence was erroneously admitted. Ms. De Reyes argues
that the district court erred by admitting, under the
inevitable discovery doctrine, testimonial evidence acquired
as a result of an unlawful stop. We have jurisdiction under
28 U.S.C. S 1291. Our review of the factualfindings is for
clear error, and our review of the district court's application
of a legal standard is plenary. See United States v. Herrold,
962 F.2d 1131, 1136 (3d Cir. 1992).

I

The relevant facts are undisputed. In November 1996,
agents from the Immigration and Naturalization Service
operating in the Virgin Islands received a tip from an
informant that three female illegal aliens would be in Maxi's
Bar in Christiansted on the island of St. Croix of the United
States Virgin Islands to sell fraudulent numbers for
permanent residency cards (or "green cards"). The three
women were described with minimal characteristics as
follows: one had red hair; another was short and"hefty"
with brown hair; the third was named Carmen. The INS
officers had no other details about the women.

INS agents Thomas Annello and Alec Lee proceeded to
the bar where Annello encountered Ms. De Reyes, a native
of the Dominican Republic, who proceeded to walk away.
Annello instructed Lee to stop Ms. De Reyes, a stop the
district court found was illegal because there was
insufficient cause. In that connection, it is noted that when
the issue arose Annello testified Ms. De Reyes appeared to
have a reddish tint to her hair, but Lee testified that she
had brown hair. Following the stop, Ms. De Reyes was
detained and questioned about her citizenship. She
admitted she was a citizen of the Dominican Republic and

                               2
claimed she was legally present in the Virgin Islands under
a visa. Ms. De Reyes asked a friend to fetch her purse from
a nearby residence, and was able to produce papers
showing that she was married to Escolastico De Reyes, a
resident of the Virgin Islands, but she was unable to
produce a document showing she was legally present in the
United States. Ms. De Reyes was transported first to INS
headquarters but when she was unable to contact her
husband, she was transported by INS to a correctional
facility where she was incarcerated overnight.

The next morning Escolastico De Reyes arrived at INS
headquarters looking for his wife. When he was questioned
by Agent Annello about his marriage, he maintained that
Ms. De Reyes was in fact his wife. However, Annello then
visited Escolastico De Reyes' home, where he observed very
few articles of women's clothing, a fact which led him to
question whether Ms. De Reyes did live there. Then
Escolastico De Reyes' mother told Annello that Ms. De
Reyes did not live with Escolastico, following which
Escolastico De Reyes confessed that the De Reyes marriage
was a fraud that had been established to enable Ms. De
Reyes to obtain a permanent resident card.

When Ms. De Reyes was confronted with the information
about her husband's confession and the visit by the INS to
his home, she conceded the fraudulent nature of the
marriage, and signed a written confession to having
committed marriage fraud.

Ms. De Reyes entered a conditional plea pursuant to Fed.
R. Crim. P. 11(a)(2) and filed a motion to suppress all
evidence of items and statements taken from her and
obtained pursuant to the stop outside the bar on the basis
that the INS agents lacked reasonable suspicion to hold
and question her. The district court granted the motion to
suppress because it found the evidence was the fruit of an
unlawful stop that was unsupported by reasonable
suspicion under the Fourth Amendment. The district court
explained that the reasonable suspicion standard was not
met in light of the agents' contradictory testimony regarding
Ms. De Reyes' hair color and the fact that Ms. De Reyes
failed to match even the sketchy description given by the
informant. That finding is not challenged on appeal.

                                3
The government moved for reconsideration of the
suppression of Escolastico's statements and Ms. De Reyes'
post-Miranda confession. The government argued that the
testimonial evidence was acquired independent of the illegal
stop so that suppression was not required and that even if
acquired illegally, the evidence would have been inevitably
acquired through lawful means. On reconsideration, the
district court granted the motion, finding that these
statements would have been inevitably discovered through
an INS investigation of the De Reyes marriage. The district
court's ruling was based in part on the testimony of Andres
Oversen, an INS adjudicator.

Oversen had testified concerning the INS procedures for
obtaining a permanent residency card (generally called a
green card) following the marriage of an alien to a United
States (including Virgin Islands) resident. Such a card,
which would enable a spouse to receive permission to live
and work in the United States, can be obtained only after
the filing of an I-485 form (an adjustment of status form).
This is preceded by the filing of an I-130 form on behalf of
the alien spouse. Although the I-130 form had beenfiled on
behalf of Ms. De Reyes, they had not yet moved to the I-485
form stage. Oversen testified that there is no time limit
within which an applicant must file the I-485 form.

After the I-485 form is filed and both spouses are on
American soil, the INS ordinarily conducts an interview of
the husband and wife. The spouses are interviewed
separately and successively. Each is questioned about how
they met, their families, their home life, theirfinances, their
meals, and even any birthmarks each spouse may have. If
the answers to these questions differ greatly, the
adjudicator may request an investigator to visit the couple's
home.

A spouse not on United States soil can receive a
permanent residency card by the alternate procedure of
completing a State Department form available at the United
States Embassy of the spouse's home country. In such
circumstances ordinarily only the applicant alien is
interviewed. However, if the alien had been in the United
States illegally prior to completing the form at the United

                               4
States Embassy, there is a ninety-day waiting period before
an interview is scheduled.

Having admitted into evidence the confessions of Ms. De
Reyes and the statements of her husband under the
inevitable discovery doctrine, the district court found Ms.
De Reyes guilty of violating the marriage fraud statute and
sentenced her to time served, deportation and supervised
release of three years.

The single issue on appeal is whether the district court
erred in admitting the previously excluded evidence of
Escolastico De Reyes' statement and Ms. De Reyes' post-
Miranda confession under the inevitable discovery doctrine.1
Ms. De Reyes contends that the admission was erroneous
because there are too many variables to find that a routine
INS investigation would have inevitably discovered the
testimonial evidence it uncovered regarding the sham
marriage.

II

The exclusion of evidence illegally obtained is one of the
cornerstones of federal criminal procedure. See Weeks v.
United States, 232 U.S. 383, 391-92 (1914). Similarly,
_________________________________________________________________

1. To the extent that the government contends that the evidence was
legally acquired or otherwise purged of the taint of the illegal stop
because De Reyes arguably came to the INS voluntarily, we disagree. The
government relies on New York v. Harris, 495 U.S. 14 (1990), which
reversed the state court's suppression of a statement because it was
made independently of the illegal entry into defendant's home. Unlike
Harris, in this case Mr. De Reyes came to the INS office only after he
learned of the arrest of Ms. De Reyes, which was tainted by the earlier
illegality. The district court's initial suppression order was apparently
predicated on the recognition that Mr. De Reyes' presence at the INS was
inextricably intertwined with the illegal stop and seizure of Ms. De
Reyes.
This case is closer to Brown v. Illinois, 422 U.S. 590 (1975), where the
Court held that the prosecution had failed to meet its burden under
Wong Sun v. United States, 371 U.S. 471, 486 (1963), to show that the
confession at issue was "sufficiently an act of free will to purge the
primary taint of the unlawful invasion." Here also, the government has
not shown that the statements were the result of an "act of free will
unaffected by the initial illegality." Brown, 422 U.S. at 603.

                               5
incriminating evidence derived from the illegally obtained
evidence, colorfully termed the "fruit of the poisonous tree,"
is also excluded. Wong Sun v. United States, 371 U.S. 471,
488 (1963). On the other hand, evidence that the
prosecution can show has been discovered independent of
any constitutional violation is not excluded. The underlying
rationale for the independent source rule is that the
exclusionary rule ensures that the police should not be in
a better position as a result of their illegal action, but
neither should they lie in a worse position.

That same rationale was used by the Supreme Court
when it adopted the inevitable discovery rule. As set forth
in Nix v. Williams, 467 U.S. 431 (1984),"[i]f the prosecution
can establish by a preponderance of the evidence that the
information ultimately or inevitably would have been
discovered by lawful means . . . then the deterrence
rationale has so little basis that the evidence should be
received." Id. at 444. The rule so applied permits the court
to balance the public interest in providing a jury with all
relevant and probative evidence in a criminal proceeding
against society's interest in deterring unlawful police
conduct. See id. at 443.

In Nix, the defendant was arrested for the kidnapping
and murder of a ten-year old. While transporting the
defendant, a police officer violated the defendant's right to
counsel by interrogating him and thereby discovering the
location of the body. By that time, the police had begun an
exhaustive search that subsequent testimony revealed
would have discovered the body within hours of the
defendant's disclosure of the location. The Supreme Court
held the improperly acquired information could be admitted
because the prosecution had proven by a preponderance of
the evidence that the body would have inevitably been
discovered during the course of the lawful search. See id. at
449-50.

It is the government's burden to show that the evidence
at issue would have been acquired through lawful means,
a burden that can be met if the government establishes
that the police, following routine procedures, would
inevitably have uncovered the evidence. See, e.g., United
States v. Martinez-Gallegos, 807 F.2d 868, 870 (9th Cir.

                               6
1987). However, the Supreme Court made clear in Nix that
the analysis should focus upon the historical facts capable
of ready verification, and not speculation. Nix, 467 U.S. at
444, n.5.

It follows from the Court's approach that the inevitable
discovery doctrine has generally been applied in the context
of acquiring physical evidence, such as drugs or weapons.
Thus when the government proves that its officers conduct
a routine search in similar circumstances, a court is likely
to adopt the government's argument that the evidence
would have been discovered in the course of that search.
An example is presented by the recent decision of the Tenth
Circuit in United States v. Haro-Salcedo, 107 F.3d 769
(10th Cir. 1997), where the court held that cocaine evidence
obtained from an unlawful search of an automobile was
admissible because the police showed that the evidence
would have been inevitably discovered in the inventory
search of the automobile which always follows
impoundment. Id. at 773. Similarly, in United States v.
Kennedy, 61 F.3d 494 (6th Cir. 1995), the court held that
cocaine in a misrouted suitcase would have been inevitably
discovered when the airline searched for identification of
the owner. Id. at 498. The court explained:

       Proof of inevitable discovery involves no speculative
       elements but focuses on demonstrated historical facts
       capable of ready verification or impeachment and does
       not require a departure from the usual burden of proof
       at suppression hearings. The exception requires the
       district court to determine, viewing affairs as they
       existed at the instant before the unlawful search, what
       would have happened had the unlawful search never
       occurred.

Id. (citations and quotations omitted).

In this case, the district court held the statement of
Escolastico De Reyes and the confession of Ms. De Reyes
admissible under the inevitable discovery rule. The court,
relying upon the INS testimony as to the procedures likely
to be followed in the course of processing residency permits
based upon alien marriages, concluded that, following
routine procedures, INS agents would have inevitably

                               7
uncovered essentially the same evidence of marriage fraud
that resulted in Ms. De Reyes' conviction.

In response to our inquiry, the government was unable to
cite to any decision in which the inevitable discovery
doctrine was applied to admit statements, as distinguished
from physical evidence. While we know of no articulation of
the inevitable discovery doctrine that restricts its
application to physical evidence, and we are not prepared
in this case to enunciate such a condition, it is patent why
cases have generally, if not always, been so limited. A
tangible object is hard evidence, and absent its removal will
remain where left until discovered. In contrast, a statement
not yet made is, by its very nature, evanescent and
ephemeral. Should the conditions under which it was made
change, even but a little, there could be no assurance the
statement would be the same. Thus, even if we were to
assume both that Ms. De Reyes would not have chosen to
return to the Dominican Republic to apply for her residency
card there, and that under routine INS procedures Ms. De
Reyes and her putative husband would have been
interviewed following her application for a residency card,
there is no assurance that: (1) Ms. De Reyes would have
filed her I-485 form without having taken any steps to
create the illusion of a marriage with Escolastico De Reyes;
(2) an INS agent would have "inevitably" become suspicious
during the interview and would have requested an
investigator to conduct a home visit; and (3) the interview
and the home visit would have "inevitably" disclosed
sufficient facts suggesting that the marriage was a sham
such that Ms. De Reyes and her husband would have
confessed to the fraudulent nature of the marriage. To
reach all three conclusions requires engaging in precisely
the type of speculation the Court proscribed in Nix.

One can just as plausibly presume that both Ms. De
Reyes and her putative husband would have been prepared
for the interview and that their friends and relatives would
have been coached to help create the illusion of a legal
marriage. We are simply unable to say with any certainty
that the INS would have discovered anything close to the
kind of conclusive evidence that Ms. De Reyes' confession
and Mr. De Reyes' statements provided. See United States

                               8
v. Namer, 835 F.2d 1084, 1088 (5th Cir. 1988) ("[A]t a
minimum, the government would have to offer a theory as
to the manner in which agents would have made their
discovery. We agree with the commentators that emphasis
is on `would' not `might' or `could.' ") (citations omitted).

In adopting the inevitable discovery rule, the district
court passed over several steps in the investigation process.
First, the individual interviews are scheduled only after the
I-485 form is submitted, which Ms. De Reyes had not yet
filed. It is unknown when Ms. De Reyes would have filed
the I-485 or even whether she would have done so in lieu
of returning to the Dominican Republic to apply at the
United States Embassy in Santo Domingo. Second, the
home visit is ordered only if the interviewing INS agent has
suspicions about the application. It is possible that Mr. and
Ms. De Reyes would have been better prepared for the
interview had it followed the usual course absent the illegal
search. Third, even if a home visit were conducted, it is
again plausible that the fraud would have been better
disguised and more convincing.

Moreover, there was no testimony that sham marriages
are inevitably uncovered as a result of interviews and home
visits. In many respects, the discovery of a sham marriage
rests upon the skill of the putative spouse at deception and
the detective instincts of the INS interviewer. The INS
investigation into the De Reyes marriage had not yet
commenced. The investigative process is not foolproof but
depends upon a number of variables.

We believe it requires an unacceptable degree of
assumption and speculation to find that the incriminating
evidence of marriage fraud would have been inevitably
discovered. As the Seventh Circuit stated in United States
v. Jones, 72 F.3d 1324 (7th Cir. 1995) "[s]peculation and
assumption do not satisfy the dictates of Nix, however.
Inevitable discovery is not an exception to be invoked
casually, and if it is to be prevented from swallowing the
Fourth Amendment and the exclusionary rule, courts must
take care to hold the government to its burden of proof." Id.
at 1334 (citations omitted). This is a case in which the
government failed to meet its burden of proof.

                               9
For this reason, we hold that the district court'sfinding
that the testimonial evidence would have been inevitably
discovered by routine INS procedures cannot be sustained
and we will direct the district court to vacate the conviction.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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