
USCA1 Opinion

	




        November 18, 1993       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1446                                  SAMSON O. AGBOSASA,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   Circuit Judges.                                   ______________                                 ____________________            Samson O. Agbosasa on brief pro se.            __________________            Edwin J. Gale,  United States  Attorney, Stephanie  S. Browne  and            _____________                            ____________________        Charles A. Tamuleviz,  Assistant United States Attorneys, on brief for        ____________________        appellee.                                 ____________________                                 ____________________                      Per Curiam.  Petitioner  Samson O. Agbosasa appeals                      __________            pro se from  the dismissal  of his motion  under 28 U.S.C.               ___ __            2255.  Finding no error, we affirm.                                          I.                                          _                      In  1990, upon  a plea  of  guilty, petitioner  was            convicted of falsely representing that he was a United States            citizen, 18  U.S.C.    911, and was  sentenced to  six months            imprisonment,  that  sentence  to  run  concurrently  with  a            sentence  previously imposed  in  an  unrelated  case.    The            sentencing  court  also  mandated  one  year   of  supervised            release, including surrender of defendant to the  Immigration            and  Naturalization   Service  for   deportation  proceedings            pursuant to 8 U.S.C.   1101, et seq.  Petitioner is currently                                         __ ____            awaiting deportation.                      The underlying facts and chronology, as culled from            the files  and records  in the  case, are  not disputed.   In            January  1990, petitioner  was involved  in  a motor  vehicle            accident.  He  retained a lawyer to assist  in processing his            claim.  In June 1990, petitioner was granted pretrial release            in  a pending criminal  proceeding.  Petitioner's  travel was            restricted and he was required to make periodic personal  and            telephonic reports.  On August 27, 1990, an investigator from            the petitioner's  insurance company  called petitioner  about            his  accident claim.   The investigator obtained petitioner's            consent to  (1)  tape the  conversation  and (2)  answer  the                                         -2-            questions  posed in  the absence  of  his attorney.   At  the            outset of the  conversation, the  investigator inquired  into            petitioner's  citizenship status.   Petitioner stated that he            was  born in  Lagos, Nigeria,  came to  the United  States in            1979, and became a United States citizen in 1986.                      Approximately   six   weeks   later   a   two-count            indictment was returned against  petitioner charging him with            (1) falsely representing United States citizenship, 18 U.S.C.               911, and  (2) using  a  false social  security number,  42            U.S.C.    408(g)(2).  On December 7, 1990, petitioner pleaded            guilty to count one and count  two was dropped.  At the  plea            hearing, relying upon petitioner's August 27, 1990 statements            that he  was a citizen  of the United States,  the government            made the proffer that at trial it would prove that petitioner            remained a  citizen of  Nigeria.   Petitioner then  responded            affirmatively  to the presiding  judge's express query:   "Do            you now  want to plead guilty to . . . the first count of the            indictment in this case,  which charges you with  falsely and            wilfully  representing yourself to be a citizen of the United            States . . . on or about August 27, 1990?"                      In July 1992, petitioner filed this   2255 petition            raising two grounds for relief:   (1) that his Miranda rights                                                           _______            were  violated  during  the  telephone   interview  with  the            insurance  investigator, and (2) that he was denied effective            assistance of counsel because his attorney refused to move to                                         -3-            suppress  the  statements  made  during  the  August  27,1990            conversation. In  an accompanying  memorandum and  affidavit,            petitioner  contended that he  learned, several  months after            conviction,  that the investigator's failure to advise him of            his   Miranda   rights  rendered   petitioner's   citizenship                  _______            statements, made  while he was  on bail awaiting trial  in an            unrelated criminal  case, inadmissible.   Petitioner asserted            that the investigator  was conspiring with the  government to            entrap him and thus had reason to know that any  admission of            alienage by the defendant would be highly incriminating.                      The government's response to the   2255 hearing was            two-fold.   First, it argued that because  the petitioner was            not in  custody or otherwise  deprived of his  freedom during            the telephone  conversation with the  insurance investigator,            his Fifth  Amendment rights  were not  violated.  Miranda  v.                                                              _______            Arizona,  384 U.S.  436, 478  (1966).   Second,  petitioner's            _______            charges that the  investigator was acting as an  agent of the            government were, respondent maintained, false, conclusory and            without any factual support.  Relying on Illinois v. Perkins,                                                     ________    _______            496 U.S. 292, 300 (1990),  the government concluded that even            if  the investigator  had been  functioning  as a  government            agent  during the August  27, 1990 telephone  conversation, a            fact which was denied, Miranda warnings are not required when                                   _______            an incarcerated  suspect gives  a voluntary  statement to  an            undercover   law   enforcement   official.      Consequently,                                         -4-            respondent claimed,  as there  were no  allegations that  the            plea proceeding was  deficient under Fed. R. Civ.  P. 11, the            petitioner's  bald  and unelaborated  assertions  provided no            basis  for     2255  relief   and  were  subject  to  summary            dismissal.                      Petitioner's   opposition   to   the   government's            response maintained that the Miranda "in custody" requirement                                         _______            had been satisfied because at  the time of the interview, his            liberty was restricted by the authorities  under the terms of            the  June 1990 pretrial release order in a pending, unrelated            case.     Petitioner  also  contended   that  the   insurance            investigator   must  have  known  of  that  pending  criminal            proceeding and  petitioner's "technical custody"  because (1)            within a few hours of the telephone interview, its transcript            was in the  hands of an Assistant United  States Attorney and            (2)  the  transcript  showed that  the  interview  ranged far            afield of routine  accident claim inquiries in  eliciting the            incriminating information.  Illinois v. Perkins was literally                                        ________    _______            inapplicable, petitioner claimed, because both parties to the            telephone interview  fully understood each  other's identity.            Finally,  petitioner attaches importance to the fact that the            investigator  called petitioner  personally despite  the fact            that petitioner's attorney had filed the claim.                                         -5-                      The  district court  summarily  denied  the    2255            motion  "for  the  reasons  set  forth  in  the  government's            response," and this appeal ensued.                                         II.                                         __                      We  have  little  difficulty  concluding  that  the            dismissal was correct.  In Illinois v.  Perkins, a prisoner's                                       ________     _______            cell-mate  was an  undercover government  agent who  elicited            incriminating statements about  an offense  unrelated to  the            inmate's incarceration.  In deciding that neither Miranda nor                                                              _______            the Fifth  Amendment applies to  statements voluntarily given            to an undercover  agent posing as  a fellow inmate,  Perkins,                                                                 _______            496 U.S. at 300, the  Court observed that "detention, whether            or  not  for  the  crime  in question,  does  not  warrant  a            presumption that the use of an undercover agent to speak with            an incarcerated suspect  makes any  confession thus  obtained            involuntary."  Id. at 299.  When a suspect is unaware that he                           ___                            _______            is  speaking with  a  government  official,  the  element  of            coercion  is missing.   Id.   Thus,  the Court  held, Miranda                                    ___                           _______            "warnings are  not required  to safeguard the  constitutional            rights of inmates who make voluntary statements to undercover            agents."  Id. at 300.                      ___                      Even  if  we  were to  assume,  arguendo,  that the                                                      ________            pretrial  release order in the unrelated criminal case placed            restrictions  on petitioner's  liberty  so as  to  constitute                                         -6-            custody  for Miranda purposes  at the time  of the interview,                         _______            and  also  assume  that the  investigator  was  an undercover            agent, given the fact that  petitioner does not claim that he            knew, at the time of the interview, that the investigator was                  ____________________________            a government  agent, his  claim to  Miranda protections  must                                                _______            fail.    No such  warnings  needed  to  be given  before  the            investigator  here  asked  the questions  that  elicited  the            incriminating response.    Petitioner's  further  claim  that            Miranda  was  implicated   because  he  was  represented   by            _______            counsel  -- either  in the  insurance  matter or  the pending            criminal  case  -- fares  no  better,  since the  element  of            coercion was not satisfied.                      Similarly,  regarding  the   claim  that  counsel's            conduct  was deficient because he failed  to move to suppress            petitioner's voluntary statements made  on August 27,1990, no            prejudice resulted.   In short,  it cannot be said  that "but            for  counsel's errors,  the  result  below  would  have  been            different."   See Murchu  v. United States,  926 F.2d  50, 58                          ___ ______     _____________            (1st Cir.), cert. denied, 112 S. Ct. 99 (1991).                        _____ ______                      Accordingly, even under the conspiratorial scenario            petitioner posits,  the petition  was,  as a  matter of  law,            properly  subject to summary  dismissal.  We  have considered            petitioner's remaining arguments and find them without merit.                      Affirmed.                      ________                                         -7-
