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In an opinion that addresses how far the federal government should go in warning a party in a civil immigration proceeding about a related criminal investigation, the 5th U.S. Circuit Court of Appeals reversed the dismissal of a seven-count indictment against an infamous anti-Castro Cuban exile who allegedly has had a hand in several major events in modern Latin American history. The Aug. 14 opinion, United States v. Luis Posada Carriles, sets out the following fascinating recounting of the alleged travails of 79-year-old Posada, a Bay of Pigs-era U.S. military veteran who, over the past 40 years, has crisscrossed Central and South America: Posada was arrested for the 1976 bombing of a Cuban airliner in Venezuela; escaped from prison in that country and fled to El Salvador; became involved in supplying arms to the U.S.-backed Contras fighting against the Sandinistas in Nicaragua; was shot several times by Cuban agents and survived; and was arrested and convicted in Panama in 2000 for attempting to assassinate then-Cuban President Fidel Castro in a bombing but was pardoned by the outgoing Panamanian president in 2004. [See the court's opinion.] Posada showed up in El Paso in 2005, where immigration officials detained him. He subsequently filed for naturalization with U.S. Citizenship and Immigration Services (USCIS). Posada’s application for naturalization, based on his U.S. military service and honorable discharge, and his subsequent interview with a USCIS officer was an unusually lengthy and complicated event. A USCIS officer, who specialized in cases that involved national security or immigration fraud, flew in from Washington, D.C., to conduct the interview with Posada in 2006 while in federal custody. Also present during the interview were attorneys from the U.S. Department of Homeland Security, the U.S. Department of Justice’s Office of Immigration Litigation, two attorneys representing Posada and a Spanish-speaking interpreter. At the beginning of the eight-hour interview, Posada was informed in English and Spanish that the proceeding would be conducted under oath; any statement could be used in any legal or administrative proceeding; lying or giving false information could subject him to criminal penalties; he could exercise his right against self-incrimination if he thought that an answer would incriminate him; and he could terminate the interview at any time. Posada was asked in the interview about his anti-Castro activities, his alleged involvement in bombings, his alleged plot to kill Castro, and his use of names other than his legal name, among other things. Posada answered many of the questions but at times invoked the Fifth Amendment and declined to answer. In January 2007, a federal grand jury returned a seven-count indictment against Posada, charging him with making false statements in connection with efforts to obtain naturalization. The alleged false statements related to Posada’s method of entry into the United States and his alleged use of false names. In April 2007, Posada filed a motion to suppress evidence obtained during his interview based on the government’s failure to warn him of the criminal investigation. Posada filed another motion to exclude the tapes and transcript of the interview, alleging the tapes were of poor quality and the translation and transcription of the interview were inaccurate. In May 2007, U.S. District Judge Kathleen Cardone of El Paso suppressed the use of the tapes and transcript as evidence, finding that incorrectly interpreted words in the transcript prejudiced Posada. In dismissing the indictment, Cardone had harsh words for the government regarding Posada’s claim that government officials failed to warn him of the existence of a criminal investigation. After reviewing case law involving instances where the government acted deceptively in using civil proceedings to obtain documents or statements for the purpose of a criminal investigation, Cardone concluded in her order “there was no genuine [naturalization] interview and the entire interview was, instead, a pretext for a criminal investigation.” Cardone further found that the government engaged in “fraud, deceit, and trickery” by misrepresenting to Posada the purpose of the questions at the interview. The government’s tactics were “grossly shocking and so outrageous as to violate the universal sense of justice,” she wrote. The government appealed Cardone’s decision to suppress the evidence and dismiss the indictment. But on Aug. 14, the 5th Circuit reversed the dismissal of the indictment and found Cardone should have denied the motion to suppress. It rejected Cardone’s reasoning in the case and had a fundamental disagreement with her about her analysis of United States v. Tweel (1977), a 5th Circuit opinion Cardone used to justify quashing the indictments. According to the 5th Circuit’s opinion in Tweel, the court said that the statements that a taxpayer gave to an Internal Revenue Service agent should have been suppressed because the agent misled the taxpayer’s accountant, who then gave misinformation to his client. The IRS agent told the taxpayer’s accountant that his investigation was civil in nature, when, in fact, it had been ordered by the Organized Crime and Racketeering Section of the Department of Justice, and it led to the taxpayer’s indictment and conviction on tax fraud charges. But in Posada Carriles, the 5th Circuit pointed out that the facts of the case before Cardone differed from those in Tweel. In Tweel, the IRS agent did not advise the taxpayer of his Fifth Amendment rights or warn that any statements he made could be used against him in a criminal proceeding. In Posada Carriles, the government did give those warnings. “We think faulty the district court’s reasoning that these warnings ‘had little significance’ because Posada ‘did not receive a true explanation of the true import of the government’s inquiry,’ ” wrote Judge Carolyn Dineen King in an opinion joined by Judges Patrick Higginbotham and Leslie Southwick. “ As Tweel and subsequent cases make clear, while the government may not make affirmative material misrepresentations about the nature of its inquiry, it is under no general obligation of disclosure.” The 5th Circuit also found that the tapes and transcript of the interview should not have been suppressed, because there was nothing fundamentally ambiguous about the questions asked or the answers given. The 5th Circuit remanded the case to Cardone for proceedings consistent with its opinion. According to the DOJ, Posada faces a maximum sentence of 10 years’ imprisonment for the naturalization fraud count and five years’ imprisonment for each of the false statement counts. HEADED FOR THE HIGH COURT? Arturo Hernandez, who represents Posada, plans to seek an en banc rehearing before the 5th Circuit. If that fails, he believes the issues in the appeal are so important the U.S. Supreme Court may agree to review the case. “We do believe there are issues of national significance within the appeal that would merit certiorari review by the Supreme Court,” says Hernandez, a Miami solo. Posada was released on bond from an immigration detention facility in 2007 and is currently living at an undisclosed location in Miami, Hernandez says. “To a certain extent the facts and applicable law create boundaries for the government as to what is appropriate conduct,” Hernandez says. “And when the government is duty-bound to notify of its ulterior motives during civil proceedings, that’s a huge issue for the entire country.” Dean Boyd, a DOJ spokesman, says the government is pleased with the 5th Circuit’s opinion; he declines further comment. David Deitch, a former DOJ prosecutor who originally was assigned to prosecute Posada’s case, believes the 5th Circuit’s decision is correct. It is important, he says, to point out that Posada invited the civil proceeding by applying for naturalization — a point that distinguishes the case from Tweel, where the IRS initiated an investigation at the DOJ’s request. “It’s an immigration case, a very high-profile immigration case,” says Deitch, who left DOJ shortly after Posada was indicted and now is a partner in Washington, D.C.’s Janis Schuelke & Wechsler. “And the 5th Circuit says he is not a typical applicant.” “There are lots of civil agency proceedings that can consider the same conduct that could be the subject of criminal proceedings,” including Securities and Exchange Commission investigations, IRS investigations and U.S. Food and Drug Administration investigations among others, Deitch says. “That is kind of what the court is saying: this is not unusual.” Kathleen Walker, a partner in the El Paso office of Brown McCarroll who is immediate past president of the American Immigration Lawyers Association (AILA), says immigration lawyers who represent clients in federal civil proceedings that could expose them to criminal charges can learn some important lessons from Posada Carriles. “If I walk into what is a civil administrative proceeding, I should always ask the examiner if my client is under criminal investigation or not. That’s my lesson learned from this,” Walker says. “To have some level of protection, if the government is abusing its authority, we should ask the question in this context.” The issues in Posada Carriles concern Walker and other AILA members who believe the federal government has become overly aggressive in immigration enforcement in recent years. Walker believes Posada Carriles is the kind of case the U.S. Supreme Court may take an interest in. “I would think that Judge Cardone had plenty of reasons to make her determination to throw out this evidence and suppress it. I don’t think her decision was a poor one,” Walker says. “I would hope they would bring up the government’s responsibility to a higher level in these administrative proceedings.” That said, Posada is not the average immigrant who applies for naturalization, which may make his continued appellate battle more difficult, Walker adds. Posada’s lawyers are “going to have a fight on their hands, and they have a very unusual fact pattern to deal with,” Walker says. Michael A. Olivas, an immigration law professor at the University of Houston Law Center, says he usually is sympathetic to immigrants who’ve been subjected to heavy-handed government investigations — but not in Posada’s case. “It’s a horse of a different color,” Olivas says. “In an immigration case with a guy whose record is so checkered, some of these questions — some of which are statutorily required — those are fair game, and they’re not prejudicial if properly asked.” “I think it was all appropriate and particularly relevant given the public record, much less the private things only known to him,” Olivas says. “I do not believe this was government subterfuge to use civil proceedings in a criminal investigation.” “Even these guys deserve due process, but it strikes me that he got it,” says Olivas, who doubts the Supreme Court will consider the case. Notes Olivas: “This is not the right kind of case for a challenge to the government overplaying his hand.”

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