REVISED SEPTEMBER 9, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50737

UNITED STATES OF AMERICA

Plaintiff - Appellant

v.

LUIS POSADA CARRILES

Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

Before KING, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.

KING, Circuit Judge:

The United States appeals the dismissal of an indictment charging false

statements in naturalization proceedings. The basis for this dismissal was the

district court’s findings that the government engaged in deceptive conduct and

outrageous tactics during these naturalization proceedings. The United States

also appeals the suppression of statements made by the defendant on the basis

of incompetent translation in the naturalization interview at which the

statements were made. For the reasons that follow, we reverse the dismissal of

the indictment, reverse the suppression of the statements made at the

naturalization interview, and remand the case for further proceedings.

United States Court of Appeals

Fifth Circuit

F I L E D

August 14, 2008

Charles R. Fulbruge III

Clerk
No. 07-50737

2

I. Facts and Proceedings

A. Factual Background

The defendant, Luis Posada Carriles, is a well known anti-Castro Cuban

exile who has been associated with several major events in modern Latin

American history. The events directly at issue in this case, Posada’s entry into

the United States and his subsequent attemptto become a naturalized American

citizen, begin in 2005. In order to fully understand the issues swirling around

Posada’s naturalization application, though, it is necessary to go back much

further, to the early 1960’s and the aftermath of the Cuban Revolution. 

Posada, a Cuban native, moved to the United States in 1960,the year after

the fall of the Batista regime and Fidel Castro’s rise to power. To say the least,

Posada has never approved of the Castro regime; in his own pleadings in the

district court, Posada is described as “unabashedly opposed to the domination

of his native country of Cuba by the tyrannical dictator Fidel Castro and his

brother Raul.” In 1961, Posada became involved with the planning for the Bay

of Pigs invasion and was brought into contact with the CIA. He later enlisted

in the United States Army, was commissioned a second lieutenant, and received

special training at Fort Benning with other former members of the 2506th

Cuban Brigade who had been commissioned in the United States Armed Forces.

Posada was honorably discharged from the Army in March 1964. Unclassified

documents contained in the record indicate that from 1965 until 1974 he

operated as a paid CIA asset, although Posada asserts that he maintained a

relationship with the CIA well into the 1980’s.

Posada went to work for the Venezuelan secret police in 1967 and

eventually became the head of a security division in charge of surveillance, VIP

protection, weapons, and explosives. In this capacity, he directed counterinsurgency operations againstleftist guerillas supported by Castro. Posada was

later arrested by Venezuelan authorities in connection with the 1976 bombing
No. 07-50737

1 This charge is referred to in the record by several other names, including “public

endangerment.”

3

of a Cubana Aerolineas aircraft in which all 73 people aboard were killed. After

several years, he escaped from prison while still awaiting trial. Venezuela still

seeks extradition; Posada, for his part, denies any involvement and claims that

the charges were orchestrated by Castro.

After his escape from Venezuelan prison, Posada made his way to El

Salvador. There he became involved in supplying arms and materiel to aid the

U.S.-backed Contras fighting againstthe Sandinistas in Nicaragua, an operation

that came to light as part of the Iran-Contra affair.

Posada moved to Guatemala in 1989 and was employed in security by the

state telephone company. In 1990, he was shot several times in the face and

torso during an assassination attempt allegedly carried out by Cuban agents.

Throughout the 1990’s he lived under assumed names in various Central

American countries. When a series of hotel and tourist-site bombings occurred

in Havana in 1997, Posada was suspected of involvement. The following year,

he was the subject of two front-page articles in the New York Times in which he

claimed a coordinating role in planning and executing the bombings. Posada

later asserted, however, that his statements had been misunderstood and

distorted by the reporter who interviewed him.

In 2000, Posada was arrested in Panama in connection with an attempt

to assassinate Fidel Castro at a summit meeting in that country. He was

detained for several years and ultimately convicted of crimes against national

security (a Panamanian offense related to the manufacture or acquisition of

bomb-making materials1) and counterfeiting public records. The outgoing

president of Panama pardoned Posada in August 2004.

Posada entered the United States illegally some time in March 2005. He

filed an asylum application and was scheduled to attend an interview with
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4

immigration officials on May 17, 2005, but, on that day, he cancelled the

interview, withdrew his asylum application, and held a press conference

announcing his presence in Miami. Immigration officials took Posada into

custody later that afternoon, and a few days later, on May 21, 2005, he

submitted to an interview. Posada was ultimately placed in removal proceedings

and, on September 27, 2005, ordered removed “to any country, other than Cuba

and Venezuela, willing to accept him.” The immigration judge found that due

to his history of anti-Castro activities, Posada would face a clear probability of

torture if deported to Cuba or Venezuela. But since no other country was willing

to accept him, Posada remained detained in an immigration-law equivalent of

limbo. On October 12, 2005, Posada filed an application for naturalization with

United States Citizenship and Immigration Services (“USCIS”). This application

and the related naturalization proceedings—which ultimately formed the basis

for Posada’s indictment on false statement charges—are discussed in greater

detail below.

Meanwhile, at some point the government opened an investigation into the

nature and manner of Posada’s entry into the United States in March 2005.

Posada maintained that he had entered the United States by land through

Mexico with the assistance of a coyote (this was apparently the story that he told

immigration officials at the May 21, 2005, interview), but media reports as well

as public statements by Castro indicated that he had actually entered by sea into

Miami aboard the vessel Santrina. There were reasons to suspect that this in

fact represented the truth. The Santrina was owned by the Caribe Foundation,

and on November 15, 2005, federal agents conducting an unrelated search of

that organization’s Miami offices discovered a Guatemalan passport bearing

Posada’s picture issued in the name of “Manuel Enrique Castillo Lopez.” This

passport indicated that “Castillo Lopez” had traveled from Guatemala to the

Mexican province of Quitana Roo, in which the city of Cancun is located, in
No. 07-50737

5

March 2005. Documents provided by the government of Mexico revealed that

the Santrina had run aground at Isla Mujeres, an island off the coast of Cancun,

on March 15, 2005. There were also reports that Posada had been on Isla

Mujeres around this time.

B. Naturalization Proceedings

Posada initiated the naturalization proceedings at issue in this case by

filing a Form N-400 application for naturalization. The basis for application was

his service in the U.S. armed forces during a period of military hostilities and his

honorable discharge. See 8 U.S.C. § 1440.

The Form N-400, although obviously adapted to its stated purpose as a

naturalization application, is a form ofthe type familiar to anybody who has ever

applied for a government job or sought a government benefit. The form first

requires the applicant to provide basic biographical information, e.g., full legal

name as well any other names used, address, social security number, date and

place of birth, nationality, marriage and family status, employment history,

military service, and selective service registration. It also contains a variety of

questions relevantto the issue of citizenship and the applicant’s moral character.

Among other things, the applicant is asked if he has ever: been a member of the

Communist Party, any other totalitarian organization, or a terrorist

organization; advocated the overthrow of any government by force or violence;

been associated with the Nazi government of Germany; been arrested, cited, or

detained by any law enforcement officer; been convicted of a crime; committed

a crime for which he was not arrested; been a habitual drunkard or prostitute;

sold or smuggled illegal drugs; helped anyone enter or try to enter the United

States illegally; given false or misleading information while applying for an

immigration benefit or to prevent deportation; or lied to any U.S. government

official to gain entry or admission into the United States. The applicant is also
No. 07-50737

6

asked whether he supports the Constitution and form of government of the

United States and is willing to take the Oath of Allegiance.

The last page of the Form N-400 instructs the applicant to certify under

penalty of perjury that the application is true and correct. There is also a

declaration required of the individual (if any) who prepared the application for

the applicant(Posada’s application was prepared by an attorney). Finally, there

is an additional part of the application that the applicant is instructed not to

complete until told to do so by an INS (now USCIS) officer. Under the heading

“Signature at Interview,” the applicant is required to swear before an

immigration officer that the contents of the application, including any

corrections made atthe interview, are true and correct. Below are spaces for the

signatures of both the applicant and the officer.

Immigration regulations govern the scope of the naturalization

proceedings after a Form N-400 is filed. These regulations require that USCIS

conduct an investigation of the applicant that consists, at a minimum, of a

review of “all pertinent records [and] police department checks.” 8 C.F.R.

§ 335.1. The regulations also provide for an interview at which the applicant is

to be questioned under oath: “[s]ubsequent to the filing of an application for

naturalization, each applicant shall appear in person before a Service officer

designated to conduct examinations . . . .” Id. § 335.2(a). At the interview, the

examining officer is to correct the applicant’s written application so far as

necessary to conform with the answers given in person by the applicant; at the

end of the interview the applicant then must swear to the truth of the

application, including any corrections made at the interview, and sign the last

page of the Form N-400 in the presence of the examiner. Id. § 335.2(c), (e).

Posada’s naturalization application was assigned for investigation to

Susana Bolanos, an adjudications officer with USCIS who specializes in cases

that may involve national security or immigration fraud. Bolanos traveled from
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7

her station in Washington, D.C., to El Paso, where Posada was detained, to

conduct Posada’s naturalization interview on April 26 and 27, 2006. Also

present at this interview were an attorney from the Department of Homeland

Security, an attorney from the Department of Justice’s Office of Immigration

Litigation,Posada’s two attorneys, and a Spanish-language interpreter provided

by the government.

At the beginning of the naturalization 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 or civil 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. The

interview was conducted in a mixture of English and Spanish. At times

questions would be put to Posada in English and translated into Spanish by the

interpreter; Posada would then give answers in Spanish which would be

translated into English by the interpreter. At other times, however, Posada

simply listened to the questions in English and responded in English withoutthe

use of the interpreter.

Posada’s naturalization interview lasted approximately eight hours over

the course of two days. Among other things, Posada was asked about his history

of anti-Castro activities, the 1997 Havana bombings, two alleged plots to

assassinate Castro, his activities with the Venezuelan secret police, his use of

names other than his legal name, the Guatemalan passport bearing his picture

issued in the name of “Manuel Enrique Castillo Lopez,” his means of entry into

the United States, the circumstances of his imprisonment in Venezuela and

Panama, and any criminal acts for which he had not been arrested. Posada

answered many of the questions but at times invoked the Fifth Amendment and

refused to answer. In accordance with the regulations described above,
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8

corrections were made to Posada’s Form N-400 to conform to Posada’s responses

during the course ofthe interview, and atthe conclusion of the interview Posada

initialed the portions ofthe application that were corrected and signed his name

in the presence of Bolanos.

By letter of August 24, 2006, USCIS denied Posada’s naturalization

application.

C. Proceedings in the District Court

On January 11, 2007, a federal grand jury returned a seven-count

indictment charging Posada with making false statements in connection with

efforts to obtain naturalization. Posada was charged with one count of

naturalization fraud (relating to false statements both on his written Form N400 naturalization application and during the April 2006 naturalization

interview) and six counts of making false statements in a naturalization

proceeding (five counts involving the naturalization interview and one count

involving the Form N-400). The allegedly false statements identified in the

naturalization interview were statements relating to Posada’s entry into the

United States in March 2005, specifically, that he had traveled into the United

States over land through Mexico, that he had never been aboard the Santrina

or seen four individuals who had been aboard it at the time, that he had never

been in Cancun or Isla Mujeres, and that he never had a Guatemalan passport.

The allegedly false statement identified in the Form N-400 was Posada’s

representation that the only two names he had used other than his own were

“Ramon Medina” and “Franco Rodriguez”; it was the government’s contention

that Posada had also used the name on the Guatemalan passport, “Manuel

Enrique Castillo Lopez.”

The case was scheduled for jury selection and trial on May 11, 2007. Less

than two weeks before that date, on April 30, 2007, Posada filed a motion to

suppress any statements made during the naturalization interview, as well as
No. 07-50737

9

any notes, tapes, or documents containing the statements, based on the

government’s failure to warn Posada ofthe existence of a criminal investigation.

The thrust of Posada’s argument in this motion was that the government had

improperly used the naturalization interview for the purpose of gathering

information or statements from him to serve as the basis for an indictment.

Posada maintained that the government had been assembling a criminal case

against him since April 2005, and yet did not warn him or his attorneys that he

was the subject of any investigation at the time of the naturalization interview.

Posada asserted that though it was clear (according to him) that he did not

qualify for naturalization due to his prior foreign convictions in Panama, the

government conducted the interview anyway, “not to gather information

regarding his eligibility for naturalization . . . , but to obtain allegedly false

statements to indict a 79 year old man who could no longer be indefinitely

obtained in immigration custody . . . .”

In a second motion filed on April 30, 2007, Posada urged the district court

to exclude as evidence the tapes and transcript of the naturalization interview

due to: (1) the poor quality of the tapes; (2) inaccurate translation during the

interview by the government-provided interpreter; and (3) inaccurate

transcription and translation of the tapes. In this motion, Posada argued that

the tapes contained an excessive amount of inaudible portions, that the

interpreter rendered inaccurate and incomplete translations of the questions

posed to Posada, and that the translators who produced the transcript of the

interview were not court certified or otherwise qualified. The district court,

finding it necessary to conduct an in camera inspection of the interview tapes,

entered an order on May 1, 2007, requiring the government to produce the tapes

by noon on the following day. The government produced the tapes and also filed

responses to Posada’s motions on May 2, 2007. Two days later, on May 4, 2007,

the district court held a pre-trial hearing on all pending motions.
No. 07-50737

10

Susanna Bolanos, the adjudications officer who had interviewed Posada,

testified at this hearing. She explained that upon being assigned Posada’s

application, she had reviewed his Form N-400 and quite-extensive “Alien File,”

and also performed her own research on the Internet. She testified that when

she first reviewed Posada’s application and other available materials,“it seemed

. . . that he might not be eligible” for naturalization, but that she scheduled an

interview anyway. She explained that it was standard practice to schedule an

interview, and that an interview would be scheduled even though an applicant

may appear to be ineligible in order to allow the applicant to clarify any issues

in the application and because applicants are entitled to an interview.

Bolanos further testified that while preparing for Posada’s interview, she

met with the two government attorneys who would be present at the interview,

as well as an additional attorney from the Department of Justice. According to

Bolanos, the purpose of this meeting, which occurred no more than a month

before her trip to El Paso, was to review the questions, prepare for the interview,

and make sure that the questions would “flow.” She testified that nobody ever

told her to ask any particular questions at the interview, and that all of the

questions that she prepared were relevant to the eligibility requirements for

naturalization.

Carlos Spector, an immigration lawyer, testified on Posada’s behalf as an

expert. Spector testified that: he had participated in around 700 naturalization

interviews; having an aggravated felony conviction is the “capital death penalty”

for an applicant seeking immigration relief such as naturalization because such

a conviction acts as a statutory bar to naturalization; in his experience

naturalization interviews typically last, at most, half an hour; and government

lawyers had never been present at an interview that he had been to.

On May 8, 2007, the district court issued an order excluding the tapes and

transcripts, suppressing the statements made at the interview, and further
No. 07-50737

11

dismissing the indictment. After noting that it had thoroughly reviewed the

enhanced digital copy ofthe tapes multiple times with the aid of a court-certified

interpreter, the district court first found that the digital copy was inaudible at

times, but that the inaudible portions were not so substantial as to render the

digital copy untrustworthy. It next found inaccuracies in the transcript of the

interview that made the transcript unreliable, although it noted that if the

indictment were not dismissed, there would still be time for the government to

submit a new version of the transcript before trial.

Taking up Posada’s challenge to the translation services provided by the

interpreter at the interview, the district court analogized to cases involving

interpreters at deportation hearings and identified a two-part test from the

Ninth Circuit asking whether the interpretation was a competent one and, if not,

whether the incompetent interpretation prejudiced the outcome of the

proceeding. See Perez–Lastor v. INS, 208 F.3d 773 (9th Cir. 2000). Based upon

a finding of “numerous instances where words were incorrectly interpreted or

notinterpreted at all, where [Posada] appeared to provide unresponsive answers

as a result of his confusion over the questions, and where [Posada] expressed

difficulty understanding what was said to him,” the district court determined

thatthe interpretation was incompetent. The district court also found prejudice,

explaining that:

No effective communication existed between [Posada] and the

interviewers; they were, so-to-speak, “not on the same page.” [The

interviewers] believed they were asking one question, while

[Posada] thought they were asking another. Even in cases where

only one or two words were interpreted incorrectly, it completely

changed the meaning and tenor of certain questions. . . . [T]he

interpretation is so inaccurate as to render it unreliable as evidence

of [Posada’s] actual statements.
No. 07-50737

12

Accordingly, the district court held that Posada’s testimony at the naturalization

interview could not be considered as evidence in any future hearing. It also

suppressed the tapes and transcripts as evidence.

Turning to Posada’s motion to suppress the interview statements on the

basis of the government’s failure to warn of the existence of a criminal

investigation, the district court categorized the concern as one of due process.

After reviewing a number of cases in which the government was alleged to have

acted deceptively in using civil proceedings to obtain documents or statements

for the purpose of a criminal investigation, the district court concluded that in

Posada’s case “the evidence [was] overwhelming that the Government

improperly manipulated the administration of criminal justice in order to secure

a criminal indictment(s) against [Posada].” The district court determined that

“there was no genuine [naturalization] interview and the entire interview was,

instead, a pretext for a criminal investigation,” and further found that the

government engaged in “fraud, deceit, and trickery” by misrepresenting to

Posada the purpose of the questions at the interview. In addition, it found the

government’s tactics “grossly shocking and so outrageous as to violate the

universal sense of justice.” Stating that it was “left with no choice,” the district

court dismissed the indictment.

The government filed timely notice of appeal on June 5, 2007.
No. 07-50737

13

II. Standard of Review

The district court’s evidentiary rulings are reviewed for abuse of

discretion. United States v. Guidry, 456 F.3d 493, 501 (5th Cir. 2006). However,

we review de novo the district court’s interpretation of the law. Id.

The decision to dismiss an indictment on due process grounds is reviewed

de novo, United States v. Asibor, 109 F.3d 1023, 1039 (5th Cir. 1997), although

underlying findings of fact are reviewed for clear error, United States v.

Barrera–Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991).

III. Discussion

The government argues that the district court erred in: (1) suppressing

Posada’s statements at the naturalization interview based on a finding that

incompetent translation services were provided by the interpreter; and (2)

dismissing the indictment based on findings of deception and outrageous conduct

on the part of the government. As the latter issue is potentially dispositive of

this appeal, we address it first.

A. Dismissal of the Indictment

“[G]overnment misconduct does not mandate dismissal of an indictment

unless it is so outrageous that it violates the principle of fundamental fairness

under the due process clause ofthe Fifth Amendment.” Asibor, 109 F.3d at 1039

(citation and internal quotation marks omitted). “Such a violation will only be

found in the rarest circumstances.” Id. (citation and internal quotation marks

omitted). In dismissing the indictment in this case, the district court found that

Posada’s naturalization interview was not a genuine interview but instead was

a pretext for a criminal investigation, and, relatedly, that the government

engaged in fraud, trickery, and deceit by misrepresenting the purpose of the

questions at the interview to Posada. The district court further found the

government’s tactics “so grossly shocking and so outrageous as to violate the

universal sense of justice.”
No. 07-50737

2 This point was apparently disputed by the government in Kordel, but for purposes of

its opinion the Supreme Court assumed that the information aided the government in the

criminal prosecution. See Kordel, 397 U.S. at 6 & n.6.

14

As a preliminary matter, we agree with the government that the district

court erred in dismissing the portions of the indictment charging Posada with

making false statements on his Form N-400 naturalization application. The

government conductidentified by the district court as the grounds for dismissing

the indictment simply has no relevance to these alleged offenses, which were

completed before USCIS began adjudicating Posada’s application, and long

before the interview itself. Moreover, after carefully reviewing the record in

light of the relevant law, we further agree that the district court erred in

dismissing the remaining portions of the indictment charging Posada with

making false statements atthe naturalization interview. As we explain, neither

of the grounds put forward by the district court—grounds which we have loosely

characterized as government deception and outrageous conduct—supports the

drastic remedy of dismissal of the indictment. Before turning to the record,

though, we first examine the relevant law.

1. General Principles

We begin with the well-settled rule that the government may conduct

simultaneous civil and criminal proceedings without violating the due process

clause or otherwise departing from proper standards in administering justice.

See United States v. Kordel, 397 U.S. 1, 11–12 (1970). In Kordel, the FDA, in the

course of an investigation into possible violations of the Food, Drug, and

Cosmetic Act by a corporation and its officers, prompted the initiation of a civil

suit seeking the seizure of some of the corporation’s products. Id. at 3. The

government later used information obtained in this civil proceeding to obtain

criminal misbranding convictions against two of the corporation’s officers.2Id.

at 6. On appeal of these convictions, the Supreme Court rejected the officers’
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argument that the government’s conduct “reflected such unfairness and want of

consideration for justice” as to require reversal. Id. at 11. Finding no violation

of due process, the Court explained that “[i]t would stultify enforcement of

federal law to require a governmental agency such as the FDA invariably to

choose either to forgo recommendation of a criminal prosecution once it seeks

civil relief, or to defer civil proceedings pending the ultimate outcome of a

criminal trial.” Id.

Notwithstanding this general approval of the practice of conducting

parallel civil and criminal proceedings, the government’s ability to do so is not

wholly unrestrained. This much can be seen in Kordel itself, where the Court

was careful to note what type of case was before it and, in so doing, make it clear

that under some circumstances the government’s use of parallel civil and

criminal proceedings may be improper. As the Court explained, it did “not deal

. . . with a case where the Government has brought a civil action solely to obtain

evidence for its criminal prosecution or has failed to advise the defendant in its

civil proceeding that it contemplates his criminal prosecution; nor with a case

where the defendant is without counsel . . . ; nor with any other special

circumstances that might suggest the unconstitutionality or even the

impropriety of this criminal prosecution.” Id. at 11–12.

Although the Supreme Court has not yet had occasion to re-visit these

issues, our own precedents are instructive. In United States v. Tweel, 550 F.2d

297 (5th Cir. 1977), a case in which improper government conduct of the type

alluded to in Kordel figured prominently, the IRS initiated a tax audit at the

request of the Organized Crime and Racketeering Section of the Department of

Justice as part of a criminal investigation that ultimately led to the taxpayer’s

conviction on various tax fraud charges. Id. at 298–99. When approached by the

IRS revenue agent, the taxpayer’s accountant asked whether a “special

agent”—the type normally involved in criminal investigations—was involved;
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the obvious implication ofthis question was thatthe accountant wanted to know

whether the audit was criminal in nature. Id. at 298. The revenue agent’s

negative response led the accountant to believe that the audit was merely a civil

one, and the taxpayer thereafter produced records for inspection. Id.

On appeal, the taxpayer argued that those records should have been

suppressed at trial on the basis of government deception. After recognizing the

general rule that “the mere failure . . . to warn the taxpayer that the

investigation may resultin criminal charges, absent any acts by the agent which

materially misrepresent the nature of the inquiry, do[es] not constitute fraud,

deceit and trickery[,]” we found that the agent’s response to the accountant’s

question, though technically true, had been intentionally misleading, and that

“the [revenue] agent’s failure to apprise the [taxpayer] of the obvious criminal

nature of this investigation was a sneaky deliberate deception by the agent . . .

and a flagrant disregard for [the taxpayer’s] rights.” Id. at 299 (internal

quotation marks and citation omitted). Accordingly, we held that the records

obtained from the taxpayer should have been suppressed at trial. Id. at 300.

We have continued to rely upon the principles discussed in Tweel in

resolving challenges to the propriety of dual investigations by civil and criminal

branches of a government agency (or dual investigations by separate agencies).

See, e.g., United States v. Blocker, 104 F.3d 720, 729–30 (5th Cir. 1997)

(affirming the denial of a motion to suppress where a state insurance examiner

conducting an audit pursuant to a state administrative scheme had secretly

agreed in advance to furnish any evidence of criminal activity to the FBI because

the examiner did not exceed the scope of his authority under state law and there

was no deception or misrepresentation about the scope or purpose of the audit);

United States v. Powell, 835 F.2d 1095, 1099 (5th Cir. 1988) (same in a tax case

where the civil audit was not initiated with criminal overtones but instead

“grew” into a criminal investigation); United States v. Caldwell, 820 F.2d 1395,
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17

1400 (5th Cir. 1987) (same in a tax case where evidence indicated that the civil

audit was not requested as part of a clandestine criminal investigation); see also

SEC v. ESM Gov’t Sec., Inc., 645 F.2d 310, 311–12, 317 (5th Cir. Unit B 1981)

(holding that government deception is grounds for denying an administrative

subpoena where an SEC investigator failed to disclose the existence of an

investigation and instead obtained access to the company’s records under the

guise of obtaining “education” for himself).

These cases affirm that a government official may not make “material

misrepresentations” about the nature of the investigation or inquiry, Caldwell,

820 F.2d at 1399 (emphasis removed), but show thatthe burden is on the subject

of the investigation to prove that such misrepresentations were made, see

Blocker, 104 F.3d at 729 & n.11; Powell, 835 F.2d at 1099; Caldwell, 820 F.2d at

1399. And they also demonstrate that we have consistently adhered to the rule,

discussed in Tweel, that the “mere failure” of a government official to warn that

an investigation may resultin criminal charges does not constitute fraud, deceit,

or trickery. See, e.g., Blocker, 104 F.3d at 729 & n.11 (stating that there is no

“affirmative duty to warn” and that the subject of investigation must show that

he was intentionally misled); Powell, 835 F.2d at 1099 (“[R]evenue agents have

no duty to inform taxpayers that the agents’ investigations might result in

criminal charges.”).

2. Government Deception

The district court found that “there was no genuine [naturalization]

interview and the entire interview was, instead, a pretext for a criminal

investigation,” and, relatedly, that the government engaged in fraud, trickery,

and deceit by misrepresenting the purpose ofthe questions atthe interview. The

district court identified Tweel as the seminal case in this area, and we likewise

find it a useful place to begin our analysis. Indeed, the decision in Tweel was

grounded in considerations similar to those expressed by the district court in this
No. 07-50737

3 The district court additionally determined that the warnings “had little significance”

as a result of the government’s threats “that exercise of Fifth Amendment rights might result

in termination ofthe naturalization interview.” This reasoning is incorrect, however, because

immigration officials may draw a negative inference from a naturalization applicant’s silence.

See INS v. Lopez-Mendoza, 468 U.S. 1032, 1043–44 (1984) (“‘[T]here is no rule of law which

prohibits officers charged with the administration of the immigration law from drawing an

inference from the silence of one who is called upon to speak.’” (alterations in original) (quoting

United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153–54 (1923))); United States v.

Alderete-Deras, 743 F.2d 645, 647 (9th Cir. 1984) (stating that in the context of a deportation

18

case. As we have explained, the government’s conduct in Tweel was

objectionable because “there was no genuine civil audit of the kind represented;

the only audit was a criminal audit specially ordered for [the] particular

taxpayer, and falsely represented as a routine civil audit.” Blocker, 104 F.3d at

729.

With regard to the district court’s determination that the naturalization

interview was merely a pretext for a criminal investigation, Tweel is

distinguishable in at least two significant respects. First, in Tweel the revenue

agent did not advise the taxpayer of his Fifth Amendment rights or warn that

any information submitted by the taxpayer could be used in a criminal

proceeding. Tweel, 550 F.2d at 299–300. As we recognized, though, this was

consistent with the general rule that failing to warn that an investigation may

result in criminal charges, absent affirmative misrepresentation, is not usually

sufficient to constitute government deception. Id. at 299. Here, however, the

government need not seek refuge in this rule because it did warn Posada (in the

presence of Posada’s lawyer) atthe beginning ofthe interview that, among other

things, he could exercise his right against self-incrimination if he thought that

an answer would incriminate him, lying could subject him to criminal penalties,

and any statement he gave could be used in any legal or administrative

proceeding. We think faulty the district court’s reasoning that these warnings

“had little significance” because Posada “did not receive an explanation of the

true import ofthe Government’s inquiry.”3 As Tweel and subsequent cases make
No. 07-50737

hearing an alien’s “refusal to testify may form the basis of inferences against him in the

deportation proceeding”). Our conclusion on this score is influenced by the fact that the

burden of proof is on the applicant in a naturalization proceeding (which is a civil proceeding).

See 8 C.F.R. § 316.2(b). The government did not act improperly in informing Posada, in

accordance with this law, that his silence could be considered in adjudicating his application.

Further, the fact that Posada nonetheless invoked the Fifth Amendment several times during

the interview tends to undercut any argument that, for whatever reason, he felt unable to do

so.

19

clear, while the government may not make affirmative material

misrepresentations about the nature of its inquiry, it is under no general

obligation of disclosure. 

Second, whereas in Tweel the government approached the taxpayer and

made misrepresentations that caused the taxpayer to participate in civil

proceedings that were in fact undertaken entirely for the purpose of a criminal

investigation, in this case it was Posada who, seeking to obtain an immigration

benefit, approached the government and thereby initiated the civil proceedings

at issue. The district court found this a distinction without a difference, but we

disagree. Posada, not the government, triggered with his naturalization

application a civil adjudicatory process that, by regulation, calls for both an

investigation of the applicant and an interview. See 8 C.F.R. § 335.2. It strikes

us as highly incongruous, to say the least, for these proceedings to then be

characterized as a sham engineered by the government. Nonetheless, because

we think it at least possible that under some circumstances civil proceedings

initiated by the non-government party may be rendered pretextual or otherwise

tainted by government misrepresentations, we turn to an examination of the

district court’s specific findings.

In determining that the interview was a pretext for a criminal

investigation, the district court relied upon: (1) the fact that Bolanos “had

already determined that [Posada] was probably not eligible for citizenship but

nonetheless chose to interview him”; (2) the fact that Posada’s application was
No. 07-50737

4 The parties dispute whether a naturalization application may ever be denied without

conducting an interview. We need not decide this issue, although we do note that the

regulations plainly state that “each applicant shall appear in person before a Service officer

designated to conduct examinations . . . .” 8 C.F.R. § 335.2(a). It is enough for our purposes

to observe that Posada’s Form N-400 raised issues that required clarification and explanation

before his application could be finally adjudicated, and that providing this clarification and

explanation is precisely the point of the interview. For example, Posada explained in an

addendum to his Form N-400 that he had been “arrested . . . in Panama under the charge of

Collective Safety and Collective endangerment,” and received a presidentialpardon. However,

he offered no explanation for why this charge was filed or what the offense of“Collective Safety

and Collective endangerment” constitutes, information that would be necessary to determine

20

in part denied based on a determination that the pardon he received did not

eliminate the immigration-law effects of his Panamanian conviction (which was

the basis for Bolanos’s initial determination that he might not be eligible); and

(3) the “anomalous” aspects of the interview, including its length, the fact that

it was taped, and the involvement of two interviewers, an interpreter, and four

attorneys. Although we have no quarrel with these observations strictly as

matters of fact (all are supported by the record), we think the district court

misperceived their significance and, in so doing, erroneously found that the

interview was merely a pretext for a criminal investigation.

First, although Bolanos did testify that when she initially reviewed

Posada’s application and the available materials “it seemed . . . that he might

not be eligible” for naturalization, nothing in the record suggests that this

preliminary determination in any way represented a final adjudication of

Posada’s application or otherwise obviated the need for an interview. As the

government points out, it would be a harsh practice indeed to deny an interview

to an applicant because a preliminary review of his application reveals that he

might be ineligible. The regulations as well as the Form N-400 both seem to

contemplate that, consistent with Bolanos’s testimony, the very purpose of the

interview, at least in part, is to give the applicant the opportunity to correct

mistakes in the application and to clarify or respond to any issues that the

examiner might have identified during the preliminary investigation.4
No. 07-50737

whether the charge creates a statutory bar to naturalization.

5

Indeed, this difference in language seems to cut in favor of the argument that pardons

should be treated differently in naturalization proceedings. The removal statute specifically

refers to a pardon “by the President of the United States or by the Governor of any of the

several States,” 8 U.S.C. § 1227(a)(2)(A)(vi), while the regulation governing pardons in the

naturalization context makes no such distinction, see 8 C.F.R. § 316.10(c)(2).

21

Second, the district court read too much into the fact that Posada’s

application was ultimately denied, in part, on the ground that the pardon

received from the president of Panama was not effective to remove the

immigration-law consequences of his conviction. As the denial letter from

USCIS indicates, the effect to be given a foreign pardon in the context of

naturalization proceedings was not entirely clear. The letter explains that

foreign pardons had long been held ineffective in the removal context, but also

notes that the regulatory language governing pardons in the naturalization

context differs from the statutory provision governing pardons in the removal

context.5 Although USCIS ultimately determined that foreign pardons should

be treated the same in the removal and naturalization contexts, the careful

consideration USCIS gave this issue belies any notion that the naturalization

proceedings were a sham.

Third, we agree with the governmentthatthe aspects ofthe naturalization

interview identified as “anomalous” by the district court—its duration, the

presence of multiple attorneys and an interpreter, and the fact that it was

taped—do not demonstrate that the interview was merely a pretext for a

criminal investigation. We first note that several of the supposedly “anomalous”

items are actually contemplated by immigration regulations, albeit as optional

features of the interview. See 8 C.F.R. § 335.2(a) (applicant may request the

presence of an attorney); § 335.2(c) (interview may be taped); § 335.2(f)

(providing for use of interpreter). More to the point is the undeniable fact that,

given his history and notoriety, Posada was a highly unusual applicant. There
No. 07-50737

6 To take just one example, at one point Bolanos asked if Posada had ever given false

or misleading information to any U.S. government official while applying for immigration

benefits or to prevent deportation, exclusion, or removal, a question that appears on the Form

N-400 and to which Posada had checked the “yes” box. In the interview, Posada averred that

22

is simply no reason to expect his naturalization interview to approximate that

of a “typical” applicant. Indeed, Bolanos, who specializes in cases that may

involve fraud or national security, was apparently assigned to Posada’s

application precisely because he was an extraordinary applicant. To give just

two examples, we would venture to guess that USCIS does not often receive

applications from individuals who, like Posada, admit to having “advocated . . .

the overthrow of [a] government by force or violence” and claim an affiliation

with the CIA. But these matters were just the tip of the iceberg when it came

to Posada’s application, and it is thus entirely unsurprising that his

naturalization interview was atypical in the ways identified by the district court.

More broadly, nothing in the record suggests that the naturalization

interview was anything other than a bona fide examination conducted in

accordance with the applicable regulations. The form of the interview certainly

conformed to those regulations. From the digital copy of the interview tapes it

is apparent that at the beginning of the interview Posada was shown his Form

N-400 and given the opportunity to consult with his attorneys and make any

necessary corrections before the substantive portion of the interview began.

After briefly discussing these corrections, Bolanos then started the process of

going over the questions on the application with Posada and asking additional

questions to clarify or fill out the record. This pattern began with the questions

relating to basic biographical information (e.g., name, date of birth, social

security number, citizenship status, marriage and family status) and continued

over the course of the interview as Bolanos moved through the application—in

many instances repeating the questions verbatim as they appear on the Form

N-400—and solicited additional information as necessary.6 Finally, at the
No. 07-50737

he had given false information by lying to an immigration officer shortly after arriving in the

United States. Bolanos followed up on this answer by asking when this had occurred, and in

the ensuing discussion the circumstances of the incident were fleshed out. When the subject

had been exhausted, Bolanos moved to another question from the Form N-400, and the

interview continued in this vein.

7 Naturalization applicants are required to establish good moral character for a

“statutory period” of five years preceding the date of filing the application as well as the period

from the date of filing to admission to citizenship. See 8 U.S.C. § 1427(a); 8 C.F.R. § 316.10.

23

conclusion of the interview, Posada initialed the additional corrections to the

Form N-400 that had been made during the course of the interview and, in

accordance with the regulations, signed his name in the presence of Bolanos.

Nor did the questions posed by the government during the interview

exceed the legitimate scope of inquiry delineated by the regulations. The district

court suggested the opposite when it found that the government made

misrepresentations to Posada about the purpose of the interview in response to

objections raised at the interview by Posada’s attorneys. In response to these

objections, which charged that several lines of inquiry opened by the government

were outside the scope of the naturalization proceedings because they related to

events that occurred outside the “statutory period” for which a naturalization

applicant is required to demonstrate good moral character,7 Bolanos repeatedly

stated that the questions were being asked for purposes of the record and that

Posada’s answers would be used to adjudicate his application. With these

statements clearly in mind, the district court found that:

[T]he Government engaged in fraud, deceit, and trickery when it

misrepresented to [Posada] that the purpose of asking him such

extensive questions about his means of entry into the United States,

his conductinPanama and Venezuela, and his use of various aliases

and passports was merely to “clarify the record.” The Court ponders

exactly which record the Government sought to clarify. The

Government did not merely ask him questions directed towards a

moral character determination. They questioned him extensively

about bombings and other violent activities. The mere fact that
No. 07-50737

24

they had to question him about bombings belies the argument that

this was a routine naturalization interview.

Here the district court seems to have taken the view that questions about

Posada’s means of entry into the United States, his “conduct in Panama and

Venezuela” (presumably his alleged involvement in the 1976 Cuban airliner

bombing and a plot to assassinate Fidel Castro), and his use of various aliases

and passports were irrelevant to adjudicating his naturalization application

(and, specifically, irrelevant to the moral character determination), and that

Bolanos’s assertions to the contrary during the interview were, therefore,

misrepresentations. This was error.

Preliminarily, it is important to note that though the naturalization

applicant’s burden is only to demonstrate good moral character during the

statutory period—roughly the preceding five years, see 8 C.F.R. § 316.10(a)(1)—it

does not follow that the applicant’s conduct outside the statutory period lies

beyond the scope of the moral character determination. The regulations

expressly provide that USCIS:

is not limited to reviewing the applicant’s conduct during the five

years immediately preceding the filing of the application, but may

take into consideration, as a basis for its determination, the

applicant’s conduct and acts at any time prior to that period . . . if

the earlier conduct and acts appear relevant to a determination of

the applicant’s present moral character.

Id. § 316.10(a)(2). Thus, the government was clearly within its rights to inquire

into matters relevant to the moral character determination even though they

may have occurred outside of the statutory period for which the applicant bears

the burden of proof. 

More to the point,though,the inquiries found objectionable by the district

court were all manifestly relevantto the adjudication of Posada’s naturalization

application and the moral character determination. No explanation is required
No. 07-50737

25

for the proposition that the government’s questions about “bombings and other

violent activities” were relevant to Posada’s moral character. With regard to

Posada’s entry into the United States, the government was aware of reports

tending to indicate that he had entered by sea into Miami aboard the Santrina,

and thus it had reason to believe that he had lied to immigration officials at the

May 21, 2005, interview, where he claimed otherwise. It follows that the

government was justified in inquiring into this subject at the naturalization

interview, because whether Posada lied to immigration officials is relevant to

both the moral character determination and the specific questions on the Form

N-400 that ask if the applicant has ever “given false or misleading information

to any U.S. government official while applying for any immigration benefit or to

prevent deportation, exclusion, or removal” or “lied to any U.S. government

official to gain entry or admission into the United States.” The government’s

inquiry into Posada’s use of aliases and passports was similarly justified. The

Form N-400 specifically asks the applicant to list all other names used; among

other things, this information obviously facilitates the government’s

investigation into the applicant’s background. And since the government also

had reason to believe that Posada had not in fact listed all of the names he had

used (owing to the discovery of the Guatemalan passport at the Caribe

Foundation offices in Miami), whether he had lied or misled immigration

officials about this issue was also relevant.

Thus, there simply is no basis for the district court’s conclusion that the

government misrepresented to Posada the purpose of asking him certain

questions at the interview. Bolanos told Posada that the questions were being

asked for purposes of the record and in order to adjudicate Posada’s application,

and she further asserted that the government had the right to inquire into

conduct outside the statutory period in making the moral character

determination. Because the regulations make clear that the government did
No. 07-50737

26

have the right to inquire into these matters, which we agree were entirely

relevant to adjudicating Posada’s application, there is no basis in the record to

find that the government misrepresented the purpose of the questions at the

interview.

Finally, we note that apart from the actual interview proceedings

themselves, the district court also found the Department of Justice’s involvement

in this case “suspicious.” Specifically, the district court noted that Bolanos met

with an attorney from the Department of Justice (along with attorneys from the

Department of Homeland Security) prior to Posada’s naturalization interview,

and that everyone at this meeting “reviewed” the questions to be asked at the

interview. But there is nothing inherently improper about this type of contact,

especially given that the regulations governing naturalization proceedings

expressly require USCIS to coordinate with outside law enforcement

entities—including the FBI, an arm of the Department of Justice—in the course

of investigating an applicant. See 8 C.F.R. § 335.1 (investigation to include,

among other things, “police department checks”); § 335.2(b) (interview to occur

only after completion of criminal background check by the FBI). Nor is there

anything in the record that would allow us to conclude that the contact in this

case was improper. Posada suggests that the “Government” (apparently the

FBI) should not have provided USCIS with documents from criminal

investigations relating to Posada’s entry into the United States and the 1997

string of bombings in Havana (from the record it appears that the FBI provided

at least one document related to the Havana bombings), but again, this is

cooperation of the sort that is expressly contemplated by immigration

regulations. It does not amount to government deception or misconduct.

3. Outrageous Conduct

After determining that the government’s conduct was deceptive, the

district court additionally found the government’s tactics “so grossly shocking
No. 07-50737

27

and so outrageous as to violate the universal sense of justice.” Insofar as this

finding refers to conduct of the government other than the conduct that we have

already discussed and determined not to have been improper, we note that to

demonstrate outrageous government conduct Posada needs to “show government

overinvolvement combined with a passive role by [himself].” Asibor, 109 F.3d at

1039. Outrageous conduct will not be found when “the defendant is an active,

willing participant in the criminal conduct that leads to his arrest . . . .” Id.

“Such a violation will only be found in the rarest circumstances.” Id. (citation

and internal quotation marks omitted). 

Here there can be no doubt that Posada was an active, willing participant

in the conduct for which he was charged with a crime. Posada submitted the

allegedly false Form N-400 and was a willing participant in the naturalization

interview in which he is alleged to have made false statements. There is no

basis for a finding of outrageous conduct here. 

B. Suppression of the Interview Statements

We next consider the district court’s decision to suppress Posada’s

statements atthe naturalization interview. Applying due process principles, the

district court suppressed these statements on the basis that the translation

provided by the interpreter at the interview was incompetent, and that this

incompetent translation resulted in prejudice to Posada.

The government first challenges this ruling by arguing that due process

considerations do not apply in this case and that Posada had no right to a

competent interpreter at the interview. The district court concluded otherwise,

by analogizing to a case involving the use of an interpreter in deportation

proceedings, and determined that “the presence of a competent interpreter was

. . . criticalto the fairness ofthe naturalization interview because the interpreter

was provided by the Government and the statements made later served as the

basis for [Posada’s] indictment.” The government, arguing that these concerns
No. 07-50737

8 Along the same lines, in a discussion ofthe deficiencies it identified in the translation

provided by the interpreter, the district court noted instances where it found that: “the use of

the wrong words and/or addition of words . . . . caused severe confusion during the interview”;

“the question thatthe interviewer asked [was] notthe question that[Posada] answered”;there

was a “break-down in communication between Bolanos and [Posada]”; there was a “line of

questioning that was confusing”; the interpreter “interpreted his own version of [a] statement

[that] did not represent the spirit of the conversation”; and “[t]here [was] no guarantee that

[Posada] understood the question being asked.”

28

are misplaced, cites a Second Circuit decision for the proposition that there is an

“important distinction” between removal proceedings and interviews to

adjudicate an immigration benefit; namely, that in the latter situation the

individual has affirmatively petitioned for a benefit. See Abdullah v. INS, 184

F.3d 158, 165 (2d Cir. 1999) (assuming that due process protections apply but

noting that applicants for special agricultural worker status, i.e., an

immigration benefit, face the government in a posture similar to immigrants

applying for admission at the border, who have no constitutional rights in

connection with their application).

In the end, we need not decide whether or to what extent due process

considerations apply in naturalization proceedings, because we agree with the

government that the crux of the district court’s decision, though couched in due

process terms, ultimately lies elsewhere. Specifically, the district court’s concern

seems to have been thatincompetenttranslation atthe naturalization interview

rendered ambiguous the communications between the government and Posada

and caused Posada to misunderstand the questions posed to him. Indeed, this

much can be seen in the district court’s explanation that Posada suffered

“prejudice” because the interviewers “believed they were asking one question,

while [Posada] thought they were asking another”; and because “[n]o effective

communication existed between [Posada] and the interviewers;they were, so-tospeak, ‘not on the same page.’”8
No. 07-50737

29

This is, at bottom, a false statements case. In such cases, it is not

uncommon for a defendant to argue that because of some ambiguity or

uncertainty in the question he is alleged to have answered falsely, his

understanding of the question differed from that of the government (thus

making the evidence insufficient to prove an essential element of the offense,

usually some variation ofthe requirementthatthe statement was false and that

the defendant knew it to be false). See United States v. Bell, 623 F.2d 1132, 1136

(5th Cir. 1980) (collecting cases). In these circumstances, the rule is that “the

defendant’s understanding of the question is a matter for the jury to decide,”

subject to an exception for cases where “‘a reasonably minded jury must have a

reasonable doubt as to the existence of the essential elements of the crime

charged.’” Id. (quoting United States v. Reynolds, 511 F.2d 603 (5th Cir. 1975)).

This exception is a narrow one. “It is only in exceptional cases that a question

is so ambiguous, fundamentally ambiguous, such that no answer can be false as

a matter of law. If there is no fundamental ambiguity, the jury resolves any

ambiguities.” United States v. Damrah, 412 F.3d 618, 627 (6th Cir. 2005).

We see no reason why our analysis here should not be guided by this

general approach. The district court’s finding that the interviewers asked one

question but Posada answered a different one, as well as its finding that Posada

and the interviewers were “not on the same page,” seem to us in substance

nothing less than a determination that, due to the vagaries of translation,

Posada did not understand the questions put to him. And by ordering Posada’s

statements suppressed entirely, instead of allowing the jury to consider them,

the district court essentially concluded that, as a matter of law, Posada’s

answers could not form the basis for a false statements conviction. To borrow

the phrase employed by the Sixth Circuit, the district court found fundamental

ambiguity.
No. 07-50737

30

Posada’s argument that Bell and other similar cases are distinguishable

because they did not involve pre-trial challenges to the reliability of an

interpreter’s translation is unavailing. This case is different in that the

misunderstanding is thought to have arisen out of errors in translation rather

than, say, the use of unclear language in phrasing the question, as might occur

in the usual case. But it does not follow that the basic standards for determining

whether fundamental ambiguity exists should not apply. In fact, in considering

and rejecting a claim thattranslation errors rendered the questions and answers

at issue in a false statements case “fatally ambiguous,” the Second Circuit

appears to have hewn quite closely to the standards we have discussed above.

See United States v. Moon, 718 F.2d 1210, 1240–41 (2d Cir. 1983). We see no

reason not to do so here as well.

In suppressing Posada’s statements at the interview, the district court

found numerous instances where words were incorrectly interpreted, where

Posada appeared to be confused over questions and provide unresponsive

answers, and where Posada expressed difficulty understanding what was said

to him. A few examples of the deficiencies identified by the district court will

suffice. At one point Posada was asked, in English, “But, from the time you were

released from jail in Panama until you entered Mexico in March 23rd or 24th,

you haven’t been to Mexico?” The district court determined that the question

put to Posada in Spanish by the interpreter, however, was a slightly different

one: “Then, from the time you had been freed in Panama until you entered

Mexico – 23rd or 24th of March, you had never been to Mexico prior to that

date?” This, the district court observed, “could potentially cause numerous

problems with respect to a time line and the Government’s theory as to how

[Posada] entered the country.”

Posada was later asked, in English, “[A]fter you’d been arrested in

Panama, did you ever tell any government officials that you had abandoned a
No. 07-50737

31

plan to detonate a car bomb in Panama?” The district court determined that the

interpreter changed the meaning of this question by inserting a reference to the

“North American” government. And at another point, the district court

determined,the interpreter similarly injected an issue into a question that asked

whether Posada had ever received passports from any other country by

translating the question to ask whether Posada had received any passports from

another country that were not legal. 

The problem with the district court’s analysis is that it failed to

concentrate on the particular questions or line of questioning that led to the

statements charged as false in the indictment. Our caselaw makes clear that

although it is of course proper to consider the allegedly false statement “in the

context in which it was given,” it is still necessary to focus on the “crucial

question and answer.” Bell, 623 F.2d at 1136, 1137. This is consistent with the

practice in other circuits. See, e.g., United States v. Reilly, 33 F.3d 1396, 1418

(3d Cir. 1994) (reviewing specific question-and-answer exchange underlaying

false statement charge); Moon, 718 F.2d at 1239–41 (reviewing several specific

exchanges in which false statements were alleged).

The Second Circuit’s decision in United States v. Moon is particularly

instructive in this regard. It demonstrates that translation errors apart from

the critical question and answer, even if occurring in close proximity thereto, do

not infect the crucial question and answer with ambiguity absent some special

relationship. In Moon,the defendant challenged the questions and answers that

led to his conviction on several counts of perjury as “erroneously translated and

fatally ambiguous.” 718 F.2d at 1239. With regard to one allegedly false answer

to a question,the defendant argued that his immediately preceding two answers

“were inaccurately translated and somehow cast the third answer in a

misleading context.” Id. at 1240. The court rejected this argument, reasoning

that“[e]ven assuming inaccuracies with respect to the interpretation of the first
No. 07-50737

32

two answers, we failto see any relationship between them and the third answer,

the one alleged to be false.” Id. at 1240–41.

It was not permissible for the district court to suppress Posada’s

statements at the interview unless translation errors affected the crucial

questions and answers relevant to the false statements charged in the

indictment in such a way that these statements, as a matter of law, may not

form the basis for a false statements conviction. Otherwise the matter of

Posada’s understanding of the questions should have been left to the jury. See

Bell, 623 F.2d at 1136. As we have explained, this question is to be removed

from the jury only when “‘a reasonably minded jury must have a reasonable

doubt as to the existence of the essential elements of the crime charged.’” Id.

(quoting Reynolds, 511 F.2d 603 (5th Cir. 1975)) (emphasis added). This point

is reached “when it [is] entirely unreasonable to expect that the defendant

understood the question posed to him.” Reilly, 33 F.3d at 1416 (internal

quotation marks omitted, brackets in original). “A question is not fundamentally

ambiguous simply because the questioner and respondent might have different

interpretations.” United States v. Culliton, 328 F.3d 1074, 1079 (9th Cir. 2003).

Given this high threshold, the record simply does not support a finding of

fundamental ambiguity. Or, put another way, there is no basis to conclude that,

as a matter of law, Posada could not have understood the particular questions

or lines of questions that led to the statements charged as false. Below we

examine the relevant portions of the interview as they pertain to the various

false statements charged in the indictment. We clarify that we do not hold here

whether Posada did in fact understand the questions; indeed, he may wish to

argue to the jury thatfor some reason he did not and,therefore,that his answers

are not false statements within the meaning ofthe relevant statutes. We simply

think that this is a matter for the jury to decide. 
No. 07-50737

33

The indictment charges that Posada falsely stated that he never had any

type of documentation, passport, or identification from Guatemala. The district

court identified no translation errors in the portion of the interview relating to

this topic, and we see nothing that would suggest that Posada did not

understand the relevant questions. The interviewer asked, “Guatemala, have

you ever had a passportfrom Guatemala?” This was translated as, “Guatemala,

¿usted tuvo un pasaporte de Guatemala?” Posada replied, “No.” The interviewer

later asked, “Nothing from Guatemala, ever?” This was translated as “Nunca,

ningun de Guatemala,” to which Posada replied, “Que yo recuerdo, no,” or, in

English, “That I remember, no.” There is nothing fundamentally ambiguous

about this exchange.

The indictment also charges that Posada falsely stated that he never saw

the Santrina while traveling to the United States in March 2005 and that he

never saw several individuals on board the ship at that time. From the

discussion immediately preceding the crucial questions and answers on this

point it is clear that Posada was aware of reports that he had arrived into Miami

aboard the Santrina, and was also aware that Castro had made statements to

that effect. Posada was then asked, “When you were in Mexico, did you ever see

the Santrina?” This was translated as, “¿Cuando usted estuvo en Mexico, usted

vio el Santrina?” Posada replied, “No.” The topic of discussion then turned to

the various other individuals that the government believed were aboard the

Santrina with Posada. After these individuals were named, Posada was asked,

“Did you see them at all while you were in Mexico?” This was translated as,

“¿Cuando usted estuvo en Mexico usted alguna vez a estata personas las vio?”

Posada replied, “No.” Again, there is no basis for concluding here that, because

of translation errors or otherwise, Posada could not have understood these

questions as a matter of law.
No. 07-50737

34

The same can be said about the questions and answers relevant to the

indictment’s charge that Posada falsely stated that he was never in Cancun or

Isla Mujeres when traveling to the United States in March 2005. Posada was

asked, “Were you ever, in the trip to the United States in March of 2005, were

you ever in Cancun?” This was translated as, “En el viaje que usted hizo a los

Estados Unidos en marzo de 2005, ¿usted estuvo en Cancun?” Posada answered,

“No.” He was then asked, “Were you ever in Isla Mujeres?” Again he answered,

“No.”

Finally, the indictment charges that Posada falsely claimed to have

entered the United States in March 2005 in Texas. This topic was thoroughly

discussed at the interview, and at points errors in translation seemed to have

caused some confusion over the “timeline” of this trip (as noted by the district

court). But the ambiguity, if any, concerning the statements relating to Posada’s

manner of entry into the United States falls far short of fundamental ambiguity,

as in other instances Posada seems to have clearly understood the significance

ofthe government’s questions. For example, Posada was asked when he had last

entered the United States (“La ultima vez que usted entro aqui a los Estadoes

Unidos, ¿cuando fue?”). He responded, “In marzo, creo, en marzo del ano 2005,”

meaning, “In March, I believe, in March of the year 2005.” Shortly thereafter,

after Posada indicated that this was around the 17th or 18th of March, he was

asked, “And when you came to the United States in March 17th or 18th, where

did you enter?” This was translated as, “Cuando usted se vino a Estados Unidos

en marzo 17 o 18, ¿por donde usted entro a los Estados Unidos?” In response,

Posada indicated that he entered through Matamoros (which is, of course, on the

Texas border).

In sum, the district court erred in suppressing Posada’s statements at the

interview because it did notfocus on the specific questions and answers relevant

to the false statements charged in the indictment. And since there is nothing
No. 07-50737

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fundamentally ambiguous about these questions and answers (whether by

reason of faulty translation or otherwise),they should not have been suppressed.

IV. Conclusion

For the foregoing reasons, the dismissal of the indictment in this case is

REVERSED and the suppression of Posada’s statements at the naturalization

interview is REVERSED. This case is REMANDED for further proceedings

consistent with this opinion.