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United States v. Balogun

United States District Court, N.D. Georgia, Atlanta Division

December 29, 2017

UNITED STATES OF AMERICA,
v.
ABIOLA BALOGUN, Defendant.

          MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION AND ORDER CERTIFYING THIS CASE READY FOR TRIAL

          LINDA T. WALKER, UNITED STATES MAGISTRATE JUDGE

         Pending before this Court is Defendant Abiola Balogun's Preliminary Motion to Dismiss for Pre-Indictment Delay and Perfected Motion to Dismiss for Pre-Indictment Delay. (Docs. 15, 23, 43). Defendant has also filed a Motion to Dismiss the Indictment alleging the indictment fails to satisfy the indictment requirement of the Fifth Amendment to the United States Constitution. (Doc. 51). Alternatively, Defendant asks the Court to inspect, in camera, the transcript of the grand jury proceedings to determine whether the grand jury was informed it must find probable cause for the offense element that she made false statements that were material to her procurement of naturalization. (Doc. 51). The Government has filed responses in opposition to Defendant's motions. (Doc. 26, 46, 55). Having considered the parties' arguments, briefs, and all supporting documents submitted, and for the reasons set forth below, this Court RECOMMENDS that Defendant's Motions to Dismiss the Indictment for Pre-Indictment Delay and Motion to Dismiss the Indictment on Fifth Amendment grounds be DENIED. (Docs. 15, 23, 43, 51). Because there are no more motions or other matters pending in this case, the undersigned hereby certifies this case ready for trial.

         DEFENDANT'S MOTIONS TO DISMISS FOR PRE-INDICTMENT DELAY

         1. Procedural Background

         On April 12, 2016, a grand jury in the Northern District of Georgia returned an indictment against Defendant Abiola Balogun charging her with conduct that occurred on or about August 23, 2006. (Doc. 1). Defendant is charged with knowingly procuring, contrary to law, naturalization by the United States and United States citizenship, in violation of Title 18 U.S.C. 1425(a). The indictment also charged Defendant in count two of the indictment with knowingly making false statements under oath in a case, proceeding and matter relating to naturalization and itizenship in violation of 18 U.S.C. § 1015(a); and in count three with knowingly using a United States certificate of naturalization to obtain a United States passport knowing that the United States certificate of naturalization had been procured by fraud and false evidence and otherwise had been unlawfully obtained in violation of 18 U.S.C. § 1015(c). On June 24, 2016, the Government filed a motion to dismiss counts two and three of the indictment. (Doc. 18). The motion was subsequently granted by the Court on July 7, 2017. (Doc. 20).

         2. Factual Background

         A. An Alert is Placed with Customs and Border Protection

          On October 27, 2015, an alert or lookout for Abiola Balogun was entered in the Customs and Border Protection's (“CBP”) computer system at ports of entry indicating that she was utilizing two different identities. (Tr. of May 14, 2017 Hrg. (“Tr.”) 15, 24). The record also indicated that the two identities were linked through a fingerprint comparison in the U.S. Visit computer system. (Tr. 15). The two identities linked by fingerprint analysis were in the names of Sarah Balogun, who filed for asylum in 1991, was denied in 1993, and ordered removed, and Defendant Abiola Balogun, who filed for asylum in 1993 and was ultimately naturalized in 2006.[1] (Tr. 18-20). On December 9, 2015, Defendant Abiola Balogun (“Defendant”) was encountered by CBP at the International Airport in Houston, Texas when she arrived on a flight from Africa. (Tr. 26). In light of the lookout placed on her record, CPB sent Defendant to a secondary area for additional examination. (Tr. 26). While in secondary, CBP attempted to take a statement from Defendant (presumably to ascertain information about the two different identities), but she declined. (Tr. 15). Defendant and the information regarding the linking of her two identities was sent to the Northern District of Georgia, the jurisdiction that was determined to have authority over her because that was where she resided and where her N-400 application was filed and adjudicated. (Tr. 15, 25).

         On December 28, 2015, Homeland Security Investigations (“HSI”) Special Agent Kevin Heirlein (“Agent Heirlein”) and a co-case agent were assigned Defendant's case. (Tr. 12-14). Part of Agent Heirlein's duties include investigating potential allegations of naturalization fraud in violation of 18 U.S.C. § 1425. (Tr. 13). After Defendant's case was assigned, the agents ordered two separate original alien files (A-file) for Defendant Abiola Balogun and Sarah Balogun. (Tr. 17, 33). An A-file contains an individual's paperwork, applications, and any interaction they may have had with immigration services. (Tr. 17). On receiving A-files for both Sarah Balogun and Abiola Balogun on January 21, 2016, the agents reviewed the A-files to get a general idea if the individuals in both files were one in the same; they concluded that it appeared that the individuals in both A-files were the same person; and subsequently presented the case to the United States Attorney's Office (“USAO”) for prosecution. (Tr. 17). Once the case was accepted for prosecution, HSI officially opened a case file on February 17, 2016, and proceeded to take additional investigative steps. (Tr. 17). On March 10, 2016, using HSI's computer system, the agents conducted a fingerprint comparison of the fingerprints contained in both A-files. (Tr. 18). Agent Heirlein scanned into HSI's computerized system every set of fingerprints in both A-files from the filing of the initial asylum application by Sarah Balogun in 1991 to the fingerprints obtained from Defendant Abiola Balogun at the time of her arrest in Houston, Texas on December 27, 2015, and all the prints were compared and matched. (Tr. 26-27, 29). On further review of databases available to him, Agent Heirlein discovered that on January 19, 2010, an alert had been places by Immigration Customs and Enforcement (“ICE”) Fugitive Operations was placed in immigration records solely for Sarah Balogun listing her as either a fugitive or a self-deport.[2] (Tr. 18, 22-23). At that time, there appeared to be no link between the identity of Sarah Balogun and Defendant Abiola Balogun. (Tr. 19).

         B. Immigration's Centralized Electronic Storage and Fingerprint System

         Historically, immigration agencies did not place every fingerprint into a centralized system as soon as they obtained them. (Tr. 16). Instead, Agent Heirlein testified that in the 1990s everything was done manually. (Id.). The fingerprints were inked (on fingerprint cards), attached to different immigration applications, and then filed with Immigration and Naturalization Services.[3] (Tr. 16, 20, 32). On cross examination, Agent Heirlein testified that at the time Defendant obtained her lawful permanent resident status in 1997 or 1998, immigration agencies would have run a criminal history check both by name and by fingerprints. (Tr. 20). The fingerprint comparison would have been performed “more or less” manually based upon ink fingerprint (cards) that were sent to the Federal Bureau of Investigations (“FBI”) to determine whether the individual had a criminal history. (Tr. 20, 32). Agent Heirlein also testified if someone had an alternative identity and if the fingerprints were not linked to the alternative identity in the FBI's system, the individual would not be flagged. (Tr. 20). Conversely, by the late 1990s or early 2000s, immigration agencies began getting away from fingerprint cards, and began transitioning to electronic storage of biometrics and comparison of fingerprints. (Tr. 21, 32). Agent Heirlein explained that if an immigration application is filed now, biometrics are taken electronically (instead of using inked fingerprint cards) and stored in HSI's computerized system. (Tr. 21). If another application is filed by the same applicant under another name, those electronic fingerprints would then link and indicate that the applicant has filed another application under another name. (Tr. 22).

         When asked on cross examination was there any type of identity checks from a fingerprint standpoint being performed when Defendant Abiola Balogun was granted citizenship in 2006, Agent Heirlein responded that her fingerprints would have been entered into the system at that time. (Tr. 21-22). To compare whether or not Defendant had another identity associated with her (by name and/or fingerprints) would depend on what information was already contained in the system because immigration agencies have not yet completed putting historical records from older alien files into the (electronic) system. (Tr. 22). Agent Heirlein further explained that he has a number of cases in similar situations where the fingerprints were uploaded much later (than the applications), and then a correlation between (the identities) of two individuals is made years after they have been naturalized. (Id.).

         Agent Heirlein testified that he did not know exactly when the fingerprints for Sarah Balogun were uploaded into the system. Agent Heirlein believes that the fingerprints may have been uploaded around October 27, 2015, because a lookout was placed with Customs and Border Protection at that time, noting that Balogun had two identities. (Id.).

         Agent Heirlein appeared to reject the notion that Defendant's allged alternative identity would have been discovered at the time of the 2010 ICE alert. Agent Heirlein clarified that the January 19, 2010 alert or lookout for Sarah Balogun was placed by the deportation section of ICE Fugitive Operations and that Customs and Border Protection would have to know to look for it. (Tr. 23). Specifically, if Sarah Balogun was encountered by Customs at a port of entry, they would not have seen the alert or lookout unless they entered her name and exact date of birth. (Tr. 18, 23).

         Agent Heirlein testified that around the time the alert was placed for Sarah Balogun in 2010, there were certain operations in place where all records were being placed in HSI's electronic storage system. (Tr. 23). One such operation was Targeting Groups of Inadmissible Subjects (“TGIS”). In connection with the TGIS operation, fugitive operations for ICE actively placed all outstanding lookouts and warrants into the (electronic) system targeting individuals that had biometric matches or two separate identities and matching fingerprints. (Tr. 32). Pursuant to TGIS, if a subject was encountered, individuals would know this person was a fugitive from a deportation warrant. (Tr. 23-24, 34). Agent Heirlein believes that the 2010 alert for Sarah Balogun also may have resulted from TGIS' input of all records into HSI's electronic storage system in order to identify fugitives from deportation warrants. (Tr. 24).

         Agent Heirlein also testified that the October 27, 2015 alert or lookout for Defendant Abiola Balogun was placed with Customs and Border Protection and indicated that she may have two A-files. (Id.). Agent Heirlein noted that record stated that a match of two sets of fingerprints was made in HSI's U.S. Vist computer system. (Tr. 24-25). Based on his knowledge of CBP, Agent Heirlein further testified that when Defendant Abiola Balogun was encountered on December 8, 2015 coming back into the country, she would have been required to go to inspections where a set of fingerprints were taken at the time of entry. (Tr. 26-27). Agent Heirlein believes that the October 27, 2015 alert was likely generated when fingerprints from Sarah Balogun's A-file were uploaded into the computer system and they matched fingerprints contained in Defendant Abiola Balogun's N-400 naturalization application filed in the 2000s. (Tr. 25-27). Agent Heirlein confirmed that there was an automated comparison done between the prints of Defendant Abiola Balogun and Sarah Balogun and that they were a biometric match in the U.S. Visit system. (Tr. 29). Based on his comparisons and scanning of the fingerprints from the A-files for Sarah Balogun and Defendant, Agent Heirlein testified that he received the same fingerprint matches that the U.S. Visit system received. (Tr. 29). Agent Heirlein also testified that the first confirmation that Sarah Balogun and Defendant Abiola Balogun were the same individual was in 2015. (Tr. 30). After confirming that Sarah Balogun and Defendant Abiola Balogun fingerprints matched, the case was presented to the grand jury on April 12, 2016. (Tr. 18).

         LEGAL ...


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