1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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.

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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 

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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' postMiranda 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 

 10