                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-3-2006

USA v. Kiam
Precedential or Non-Precedential: Precedential

Docket No. 05-1384




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                                               PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                          No. 05-1384


              UNITED STATES OF AMERICA

                               v.

                     LONG TONG KIAM

                                                Appellant


        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
               (D.C. Criminal No. 04-cr-0436)
          District Judge: Honorable Stewart Dalzell


                   Argued December 5, 2005

Before: RENDELL, FISHER, and VAN ANTWERPEN, Circuit
                      Judges.

                    (Filed: January 3, 2006)

Patrick L. Meehan
Robert A. Zauzmer
Barry Gross (Argued)
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

Counsel for the Government

Stephen J. Britt (Argued)
Donnelly & Associates P.C.
100 West Elm Street
Suite 101
Conshohocken, PA 19428

Counsel for Appellant



                     OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

        Appellant Long Tong Kiam was convicted by a jury on
November 3, 2004, of three counts of alien smuggling in violation
of 8 U.S.C. § 1324(a)(2)(B)(iii). His conviction arose from his
arrest at Philadelphia International Airport after bringing three
Chinese nationals illegally into the country. On February 4, 2005,
the District Court sentenced Kiam to five years imprisonment and
two years of supervised release. This appeal stems from the
District Court’s denial of Kiam’s motion to suppress a confession
he gave to an Immigration and Customs Enforcement agent while
being questioned at the airport. Kiam contends the confession was
invalid under Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601
(2004), because, although it was obtained after Miranda1 warnings
were given, Kiam had already given inculpatory statements to
another agent without the benefit of Miranda. We disagree and
will affirm the District Court’s denial of the motion to suppress.

                                I.

       On April 27, 2004, Long Tong Kiam, a Singaporean citizen
with a valid Singapore passport, arrived on a Frankfurt-
Philadelphia flight at Philadelphia International Airport. He –
along with three Chinese nationals who had been sitting together
but apart from Kiam – was escorted by Customs and Border Patrol




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

                                2
inspectors to a secondary inspection area.2 In the previous week,
Customs and Border Patrol agents had uncovered several alien
smuggling schemes whose characteristics matched those of Kiam
and the Chinese nationals. Each of the Chinese nationals on
Kiam’s flight had presented Singaporean passports in Frankfurt,
although they did not have passports with them in Philadelphia.

       Kiam was first interrogated by Customs and Border Patrol
Senior Inspector Daniel Roman for about twenty five minutes.
During the interrogation, Inspector Roman suspected Kiam of lying
regarding: (1) whether he had recently traveled to Thailand,
Turkey, and Europe, as reflected by his passport; and (2) whether
he knew the three Chinese nationals on the airplane who had been
traveling together. After Inspector Roman confronted Kiam with
discrepancies based upon his passport entries and statements by the
Chinese nationals, Kiam admitted that he knew the aliens, and was
“illegally help[ing] them enter this country.” United States v.
Kiam, 343 F. Supp. 2d 398, 401 (E.D. Pa. 2004). Inspector Roman
did not give Kiam Miranda warnings at any time during this
interrogation.

        Inspector Roman then contacted Immigration and Customs
Enforcement, which dispatched Immigration and Customs
Enforcement Special Agent Richard Kozak to the airport.
Inspector Roman did not further question Kiam. Upon arrival,
Agent Kozak called a Chinese interpreter who determined that
Kiam spoke many languages; Kiam indicated that he wished to
speak in English. Agent Kozak then administered Miranda
warnings, both in English and through the interpreter. Kiam
waived these rights and filled out an official waiver form. Over the
next three hours Agent Kozak interrogated Kiam about the
smuggling scheme, and eventually Kiam described the alleged
scheme’s mastermind along with their past dealings and the current
trip to America. Kiam then wrote down his confession and signed
it with amendments. He was subsequently arrested.


2
 Kiam was not in handcuffs and was taken to an office for an
interview. Kiam went with inspectors voluntarily. This secondary
inspection area was located behind the primary Immigration
inspection booths.

                                 3
        Kiam was indicted by a federal grand jury on three counts
of alien smuggling. In the District Court for the Eastern District of
Pennsylvania, which had jurisdiction pursuant to 18 U.S.C. § 3231,
Kiam sought to suppress the confession he had given to Agent
Kozak on the ground that it was elicited through an
unconstitutional two-round interrogation strategy which was
designed to sidestep his Miranda protection. The District Court
denied the motion to suppress on October 22, 2004, holding that
while Inspector Roman should have given Kiam Miranda warnings
during the first interrogation, any alleged taint from the pre-
Miranda statement did not extend into the second, post-Miranda
confession. On November 3, 2004, after the written confession
was presented at trial along with the testimony of the three Chinese
nationals Kiam allegedly smuggled into the country, Kiam was
found guilty by a jury of all three counts of alien smuggling. On
February 4, 2005, the District Court sentenced Kiam to 60 months
imprisonment, a special assessment of $300, and 24 months of
supervised release. Kiam now appeals the District Court’s denial
of his motion to suppress. We have jurisdiction over the appeal
pursuant to 28 U.S.C. § 1291.

                                 II.

       Our review of the District Court’s factual findings in a
suppression hearing is for clear error. United States v. Naranjo,
426 F.3d 221, 226 (3d Cir. 2005). Our review of legal rulings and
mixed questions of law and fact is plenary. Id.

                                III.

        We will address both elements of the District Court’s
decision not to suppress Kiam’s second statement. First, we
conclude that the District Court erred in holding that Kiam was
entitled to Miranda warnings before he made his inculpatory
statements to Inspector Roman. Second, however, we agree with
the District Court’s ultimate conclusion that regardless of
whether the first statements were unwarned, these pre-Miranda
statements did not taint the post-Miranda confession.
Accordingly, whether or not the first statements required
Miranda, the District Court properly denied the motion to
suppress the second confession.

                                 4
                      A. Initial Interrogation

        The District Court first held that Inspector Roman should
have administered Miranda warnings during the initial
interrogation because the questioning went beyond “routine”
admissibility inquiries, and that the failure to do so might have
rendered his second confession inadmissible. Kiam, 343 F.
Supp. 2d at 406. The District Court found that both traditional
triggering elements – custody and interrogation – were present.
Id. at 403-04. The District Court acknowledged that customs
officials are permitted to ask aliens stopped at the border
questions without Miranda warnings. Id. at 406. However, the
District Court concluded, the questions here went beyond merely
“routine” immigration issues because Inspector Roman had a
“particularized suspicion” that Kiam was involved in criminal
conduct. Id.

       This was error. For the reasons set forth below, we hold
that Kiam was not entitled to Miranda warnings until the
criminal investigator was called in because, inter alia, Inspector
Roman’s questions still had a bearing on Kiam’s admissibility.

        As the Supreme Court has emphasized repeatedly, the
inquiry in Miranda cases is not into the officer’s subjective
intent, suspicion, or views. Stansbury v. California, 511 U.S.
318, 324 (1994) (per curiam) (“It is well settled, then, that a
police officer’s subjective view that the individual under
questioning is a suspect, if undisclosed, does not bear on the
question whether the individual” requires Miranda warnings”);
see also Moran v. Burbine, 475 U.S. 412, 423 (1986) (“[T]he
state of mind of the police is irrelevant . . . .”); Seibert, 124 S. Ct.
at 2616 (O’Connor, J., dissenting) (“[T]he plurality correctly
declines to focus its analysis on the subjective intent of the
interrogating officer.”). Moreover, the District Court cited no
positive authority in this Circuit or otherwise – nor did Kiam –
for the proposition that non-“routine” immigration questions
implicate Miranda.3 Instead, the District Court’s analysis


3
 Our own search revealed only United States v. Moody, 649 F.2d
124 (2d Cir. 1981), which is not ultimately to the contrary. The

                                   5
involved cases, none of which come from this Court, which
stated merely that “the fifth amendment guarantee against self-
incrimination is not offended by routine questioning of those
seeking entry to the United States.” United States v. Moya, 74
F.3d 1117, 1119 (11th Cir. 1996) (quoting United States v.
Lueck, 678 F.2d 895, 899 (11th Cir. 1982)).

       While it appears that other courts have repeatedly upheld
the authority of immigration inspectors to question aliens
without Miranda, they have done so by forcing the non-
analogous immigration context into normal Miranda
jurisprudence and thereby avoiding the issue we address today.
The District Court ruled as it did partly because these other
courts spoke in the negative – “routine” immigration questions
were not held to require Miranda, but no situation presented non-
“routine” questions.

       We recognize the facially-appealing nature of
differentiating between “routine” and non-“routine” questions.
However, an inspection of Circuit cases that apply this
delineation shows that courts have gone to great pains to label
almost all questioning “routine.” In Moya, an immigration
inspector asked an alien, in a secondary inspection area, pointed
questions about past deportations after a computer system had
previously confirmed the alien’s earlier deportation. As in the
present case, the Moya inspector questioned the alien about the
exact elements of a crime, yet the Moya court deemed this


Second Circuit held there that interrogating an American citizen in
a secondary inspection room of an airport required Miranda
warnings. Moody, 649 F.2d at 127-28. That court appeared to lay
down a broad rule – as soon as a person is in a “private room” she
is in custody for Miranda purposes – that has not been adopted by
other Circuits. Cf. United States v. Ventura, 85 F.3d 708, 712 (1st
Cir. 1996) (rejecting the District Court’s conclusion that travelers
were per se in custody for Miranda purposes because they “may not
simply walk away from an interrogating officer”). After Moody,
the Second Circuit itself refused to require Miranda warnings
during secondary inspections. United States v. Silva, 715 F.2d 43
(2d Cir. 1983).

                                 6
simply “routine.” 74 F.3d at 1119-20 (quoting older Eleventh
and Fifth Circuit cases); see also United States v. Bengivenga,
845 F.2d 593, 599 (5th Cir. 1988) (en banc) (admitting
statements obtained through pre-Miranda questioning even after
border agents’ “activity shifted from a routine checkpoint stop
aimed at detecting illegal aliens to an investigation of drug
smuggling”).

       The Seventh Circuit confronted a situation virtually
identical to the case at hand in United States v. Gupta, 183 F.3d
615 (7th Cir. 1999). A suspected alien smuggler in secondary
inspection admitted the smuggling scheme and signed a
confession after receiving Miranda warnings from newly-arrived
criminal investigators. Writing for the Gupta court, Judge
Easterbrook refused to decide where the “routine questions
asked of travelers at the border” ended in that case, because the
post-Miranda statements were admissible under Oregon v. Elstad
regardless. Gupta, 183 F.3d at 618.4

       We now reaffirm the well-established authority of border
inspectors to ask questions of those entering the United States.
See, e.g., 8 U.S.C. § 1225(b); Gupta, 183 F.3d at 617; United
States v. Fernandez-Ventura, 132 F.3d 844, 846-47 (1st Cir.
1998); Moya, 74 F.3d at 1119-20; United States v. Layne, 973
F.2d 1417, 1420-21 (8th Cir. 1992); Bengivenga, 845 F.2d at
598.

        “A person seeking entry into the United States does not
have a right to remain silent.” Gupta, 183 F.3d at 617. An alien
at the border of our country – even if that border is the


4
 The Government suggested at argument that if we choose to draw
a “routine” questioning line beyond which Miranda warnings are
required, then we should find this case analogous to United States
v. Ozuna, 170 F.3d 654 (6th Cir. 1999), and hold that Inspector
Roman stayed within “routine” questions. Ozuna does not stretch
so far. The alien in Ozuna was questioned in a secondary
inspection area about discrepancies regarding his identity and
citizenship. We decline in the first instance to adopt a “routine”
questioning demarcation line.

                                7
Philadelphia International Airport, as here – must convince a
border inspector of his or her admissibility to the country by
affirmative evidence. See, e.g., 8 C.F.R. § 235.1(d)(1) (“Each
alien seeking admission . . . must establish to the satisfaction of
the inspecting officer that the alien is . . . entitled, under all of
the applicable provisions of the immigration laws and this
chapter, to enter the United States.”). While an alien is
unquestionably in “custody” until he is admitted to the country,
normal Miranda rules simply cannot apply to this unique
situation at the border. See Gupta, 183 F.3d at 617-18
(“Miranda therefore is a mismatch for the immigration process,
at least at the outset. . . . [P]ersons seeking entry at the border
may be questioned without Miranda warnings, even though they
are also subject to custody . . . .”). This is a situation utterly
unlike a normal law enforcement setting. The alien may be
taken out of a primary inspection line for secondary questioning,
or as here, removed from a plane before reaching that initial line.
Contrary to Kiam’s assertions, there is no functional difference
between the preceding situations. See Fernandez-Ventura, 132
F.3d at 847 (“[W]e fail to see how going directly to secondary
inspection [and skipping primary inspection] makes the
questioning more coercive.”). In either event, the alien still must
meet his information production burden, and the border
inspector is accordingly entitled to ask questions and require
answers.

       We will not impose an across-the-board rule requiring
border inspectors to immediately cut off their questioning if they
think they may be going beyond what could be considered
“routine” immigration questioning. Nor will we extend Miranda
beyond the holdings of our sister Circuits and hold that if a
customs official subjectively suspects criminal conduct in
addition to inadmissibility, he must Mirandize the alien before
questioning him on any subject. Not only would such a rule
conflict with Stansbury and other Miranda jurisprudence, but it
would also run afoul of the need for clear rules in the Miranda
context. See, e.g., Berkemer v. McCarty, 468 U.S. 420, 430
(1984).

      The Seventh Circuit has stated that eventually, a “line
must be drawn,” beyond which Miranda warnings are required.

                                  8
Gupta, 183 F.3d at 618. We see only one line to draw – at some
point, as was the case here and in Gupta, a Customs and Border
Patrol inspector will have sufficient information to make a
determination regarding admissibility and will then decide
whether to call in a criminal investigator such as Immigration
and Customs Enforcement Agent Kozak.5 Miranda may then
apply. Accord Gupta, 183 F.3d at 618 (citing as a possible
demarcation the “arrival of criminal investigators”). If the
inspector’s questions objectively cease to have a bearing on the
grounds for admissibility and instead only further a potential
criminal prosecution, however, this line has been crossed.6

       Before this point, there is not likely to be the “restraint on
freedom of movement of the degree associated with a formal
arrest” in normal immigration practice, where questioning and
delay is the norm. California v. Beheler, 463 U.S. 1121, 1125
(1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S.
492, 495 (1977)). This is the only possible “line” which
sufficiently reflects the deference due inspectors at the border of
the United States. We decline the urging of Kiam to require


5
 We, like the Supreme Court, certainly do not condone the
deliberate sidestepping of Miranda. Inspector Roman followed
established procedure in interrogating Kiam and calling in Agent
Kozak at a reasonably early point. Agent Kozak then administered
Miranda warnings and proceeded to obtain a written, detailed
confession that went far beyond any initial information given to
Inspector Roman. Kiam does not challenge the District Court’s
finding that there was not a deliberate omission of Miranda
warnings.
6
 For example, if an alien admits to an immigration/customs
inspector that he is smuggling drugs into the country, it might be
improper for the inspector to proceed to question the alien, without
Miranda, regarding the weight, purchase, and plans for, the drugs
he is smuggling. Here, once Kiam admitted the elements of his
inadmissibility, Inspector Roman ceased his questioning and called
in Agent Kozak. Contrary to Kiam’s assertions, the mere overlap
of the admissibility questioning with the elements of his criminal
liability is not fatal.

                                  9
Miranda warnings as soon as an alien is taken off a plane or sent
for secondary inspection.

        While appealing on the surface, we note the impossibility
of the District Court’s “particularized suspicion” test. An alien
reentering the country after being deported is guilty of a criminal
offense. 8 U.S.C. § 1326. Aliens applying for admission at the
border are routinely run through a system to check their
immigration history. A positive match to a previously-deported
alien would lead to secondary inspection, and would surely
create a “particularized suspicion” in the mind of any
immigration inspector that this alien was guilty of a crime. The
criminal offense of illegal reentry is inextricably tied up with the
alien’s current admissibility, yet by the District Court’s
reasoning, an immigration inspector would first have to
administer Miranda warnings before questioning the alien about
that admissibility. Cf. Moya, 74 F.3d at 1119 (permitting an
immigration inspector to question an alien, without Miranda
warnings, after an INS system indicated that the alien had
previously been deported, and was therefore attempting to
illegally reenter the country).

        Here, the record shows that Kiam was determined to be
administratively inadmissible because of the same conduct
which formed the basis for his criminal indictment – alien
smuggling. 8 U.S.C. § 1182(a)(6)(E)(i). Suspicion of criminal
conduct cannot overrule the simultaneous responsibility of
immigration or customs agents to inspect entrants at our borders.
See United States v. Silva, 715 F.2d 43, 48 (2d Cir. 1983)
(holding that regardless of whether an immigrations inspector
had probable cause to arrest for a criminal violation, a customs
officer remained “duty-bound to determine whether Silva was
entitled to enter the country with her effects” and Miranda
warnings were not required).

       We do not disagree with the holdings of any of our sister
Circuits, who have as a functional matter upheld almost all pre-
Miranda questioning during border detentions. Attempting to
force these cases into the rubric of “routine” questioning,
however, ignores the very real issues of border immigration
practice.

                                10
        Here, Kiam was not entitled to Miranda warnings before
he made his first incriminating statements to Inspector Roman.
At the point at which Inspector Roman ceased questioning about
administrative admissibility and called in a criminal investigator,
however, Miranda was implicated – and such warnings were
indeed given at this proper time by Agent Kozak. It was error
for the District Court to conclude that Miranda warnings were
needed before Inspector Roman could question Kiam. However,
as we explain below, the second statement is clearly admissible
regardless.

    B. Two-Stage Interrogation Under Elstad and Seibert

        We do not agree with the District Court that under the
facts before us Kiam should have been given Miranda warnings
while speaking with Inspector Roman. As such, Kiam’s
statement to Agent Kozak, which was taken after Miranda
warnings were given, is admissible. We write further to briefly
clarify the proper analysis to follow had the District Court been
correct, and the first statement actually been improperly
unwarned. Under this analysis, the District Court was correct
that Kiam’s post-Miranda confession to Agent Kozak was
admissible regardless.

       The Supreme Court addressed this issue first in Oregon v.
Elstad, 470 U.S. 298, 314 (1985), in which the Court held that
“absent coercion or improper tactics in obtaining the initial
statement,” a post-Miranda statement would not be automatically
excluded because of an earlier, pre-Miranda confession.7 The
Court instructed lower courts to “examine the surrounding
circumstances and the entire course of police conduct with


7
 In Elstad, police went to the home of a burglary suspect and
briefly questioned him before arresting him, bringing him to the
station house, and giving Miranda warnings. The suspect then
made a full confession. The Supreme Court ruled that the second
statement should be admissible despite the conceded
inadmissibility of the first, pre-Miranda statement, and the Court
refused to apply a “fruit of the poisonous tree” analysis to the Fifth
Amendment. Elstad, 470 U.S. at 303-06.

                                 11
respect to the suspect in evaluating the voluntariness of his
[initial] statements.” Elstad, 470 U.S. at 318. Where no
coercion is found, “a careful and thorough administration of
Miranda warnings cures the condition that rendered the
unwarned statement inadmissible.” Reinert v. Larkins, 379 F.3d
76, 90 (3d Cir. 2004) (citing Elstad, 470 U.S. at 311-12).

        The Supreme Court recently revisited this issue in
Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601 (2004). A
four-member plurality held that courts should apply a five-factor
test8 to determine the admissibility of a second confession given
after a pre-Miranda statement. Seibert involved an official,
wide-spread police protocol which directed officers to
interrogate suspects extensively without Miranda warnings,
obtain a confession – which the officers knew could not be used
in court – then adjourn briefly, return and give the suspect his
Miranda rights, and re-elicit a now-valid confession.

        Justice Kennedy, supplying the fifth vote to exclude the
confession at issue, narrowed the test to two parts. First, a court
must decide whether the officers made a “deliberate” choice to
flout Miranda in the first round of interrogation. Seibert, 124 S.
Ct. at 2616 (Kennedy, J., concurring). If so, the second
confession could still be admitted if “curative” measures were
taken – for example, a sufficient break in time or circumstances
between interrogations, or a warning to the suspect that the first
statement could not be used against him. Id. If the failure to
give Miranda warnings was inadvertent, however, Justice
Kennedy stated that “[t]he admissibility of postwarning
statements should continue to be governed by the principles of


8
       (1) “[T]he completeness and detail of the questions and
       answers in the first round of interrogation”;
       (2) “[T]he overlapping content of the two statements”;
       (3) “[T]he timing and setting of the first and the second”
       rounds;
       (4) “[T]he continuity of police personnel”; and
       (5) “[T]he degree to which the interrogator’s questions
       treated the second round as continuous with the first.”
Seibert, 124 S. Ct. at 2612; see also Naranjo, 426 F.3d at 229-31.

                                12
Elstad.” Seibert, 124 S. Ct. at 2616 (Kennedy, J., concurring).

        This Court applies the Seibert plurality opinion as
narrowed by Justice Kennedy. Naranjo, 426 F.3d at 231-32
(citing Marks v. United States, 430 U.S. 188, 193 (1977)).

       The first question under Seibert is whether Inspector
Roman deliberately used a two-step interrogation process. The
District Court concluded that there had been no deliberate
attempt to sidestep Miranda, and Kiam does not contest the
holding on appeal.

       Once we determine that the Miranda violation was not
deliberate, we must fall back on Elstad as instructed by Justice
Kennedy. The District Court appears to have implicitly
concluded that Kiam’s claim failed under Elstad, and then in the
name of thoroughness proceeded to show that Kiam’s claim
would also fail under the five Seibert plurality factors. Kiam,
343 F. Supp. 2d at 409-11. The District Court’s analysis of the
five Seibert factors was not faulty, but it was unnecessary,
having found the initial failure to give Miranda warnings
inadvertent. The District Court should have proceeded solely
under Elstad.

       Applying the traditional Elstad test, we conclude that
Kiam’s confession to Agent Kozak was not “tainted” by the first,
pre-Miranda statement in such a way as to require its
suppression. First, there was no evidence of coercion or
improper tactics in Inspector Roman’s questioning of Kiam. See
also United States v. Ventura, 85 F.3d 708, 711 (1st Cir. 1996)
(“[Q]uestions from officials are especially understood to be a
necessary and important routine for travelers arriving at
American entry points. This understanding cuts against the
potentially coercive aspect of the Customs inquiry, and lessens
the need for Miranda warnings.”).

       Second, Agent Kozak gave “a careful and thorough
administration of Miranda warnings.” Reinert, 379 F.3d at 90.
The District Court found that upon meeting Kiam and obtaining
an interpreter by phone:


                               13
      “Kozak gave Kiam Miranda warnings. Despite Kiam’s
      English preference, Wong [the interpreter] methodically
      ensured that Kiam understood each sentence of the
      warnings. For instance, after Kozak read aloud each
      sentence, Wong asked Kiam in Mandarin whether he
      understood, providing additional explanation when
      necessary. When Kozak finished explaining these rights
      at 5:18 p.m., Kiam waived them, memorializing this on an
      ICE I-214 form.”

Kiam, 343 F. Supp. 2d at 402. There was no clear error in these
findings. See Elstad, 470 U.S. at 318 (“The relevant inquiry is
whether, in fact, the second statement was also voluntarily
made.”). Had a Seibert or Elstad analysis been ultimately
necessary here, we “conclude that the cure mandated by Elstad
was met in this case, and that because [Kiam’s] waiver was
knowing and voluntary, the post-Miranda statement was
properly entered into evidence.” Reinert, 379 F.3d at 91.

                              IV.

       For the foregoing reasons, we conclude that the District
Court properly refused to suppress Kiam’s statement to Agent
Kozak. Accordingly, the judgment of the District Court will be
affirmed.




                               14
