Appellate Law

CA1: No 5th or 6th problem in trickery case

By S. COTUS

US v. Boskic, No. 07-1188.  This is a big case under the Fifth and Sixth amendments.  The First sides with the government.  The defendant, a Bosnian, was ?guilty on two counts of making false statements in his applications for refugee status and permanent residency in the United States. See 18 U.S.C. § 1546."  Essentially, he is claimed to have lied on his application for refugee status by omitting the fact that he was involved in killing a lot of people when he was in the military. 

You can find more of this post downtown.

Anyway, in Boston the FBI (and a Assistant US Attorney) conducted an interview for travel documents without telling him that there was a warrant for his arrest. Strangely, during this interview, the agents told him he didn?t need the actual travel documents, and gave him written Miranda warnings.  Then the defendant went ahead with it. He must have noticed something was afoot when not only were FBI agents at hand, but so were investigators for the Yugoslav war crimes tribunal. 

So, the District court says that this is trickery, and tricking little people is okay.  Especially little people that are not represented by lawyers.  (Not that I can say that I am too sympathetic to the defendant.)  The First cites lots of its cases which hold that trickery isn?t ?coercion.?  In this case, because the agents didn?t say that he wasn?t under investigation, and he was given various forms of Miranda warnings, the First says it is okay. 

The Sixth Amendment right to counsel issue is a bit different, alas the First doesn?t take it too seriously and concludes that a criminal complaint doesn?t make the lead to attachment of the right to counsel. It cites a bunch of other circuits, but seems to rely on the fact that a prosecutor isn?t required to appear when filing a complaint.  Now, wait a minute, I seem to recall in Rothgery v. Gillespie County, that the Supreme Court held that the 6th attaches sometime before "adversary judicial proceedings" and specifically rejected the 5th Circuit?s view that there isn?t a 6th amendment right to counsel if no prosecutor is involved.   But, I guess that the First thinks that merely filing stuff on paper isn?t enough. 

Full post as published by Appellate Law and Practice on October 22, 2008 (boomark / email).