that "execution of [the] fine be delayed until the final six months of his supervised release, which means that if he comes back into this country and is apprehended, that fine will be a viable one at that time." Transcript of Proceedings at 11 (April 8, 1993). In other words, the fine will become effective six months prior to the end of the supervised release period, regardless of whether Hernandez has been deported and reentered the country. Accordingly, there is nothing whatsoever "contingent" about the fine, Hernandez' assertions notwithstanding. His claims based upon the fine's "contingent nature" are therefore meritless.
Hernandez also contends that the fine was excessive, in violation of his Eighth Amendment rights. It is undisputed that the fine imposed was well within the permissible range for the offense.
The government, however, independent of Hernandez' general objection, notes that the Seventh Circuit has required that a court make specific findings regarding the appropriateness of a particular fine. See United States v. Masters, 924 F.2d 1362, 1369 (7th Cir.), cert. denied, 500 U.S. 919, 114 L. Ed. 2d 105, 111 S. Ct. 2019 (1991); cf. United States Sentencing Commission, Guidelines Manual, § 5E1.2(d) (listing factors court is to "consider" in determining amount of fine). Of course, in sentencing Hernandez, we did in fact make several findings regarding the appropriateness of the sentence, including the fine. Specifically, we noted that Hernandez "obviously is not a neophyte in the transportation of drugs," and that he callously used an innocent woman to help perpetrate his scheme, although this latter factor was somewhat mitigated by his honesty with the investigating officers regarding her role. In addition, we explicitly based the sentence we imposed upon "the seriousness of the offense, the amount of narcotics involved, the obvious unwillingness of the defendant to reveal his sources, [and] the nature of the defense." Transcript of Proceedings at 10 (April 8, 1993). And although Hernandez notes that the presentence investigation report noted that he had a net worth of $ 700, we seriously question the accuracy of Hernandez' representations in this regard. He paid for four airline tickets, two from Los Angeles to Chicago, and two for the return trip, with cash, and was arrested with over $ 600 in cash. Furthermore, the purpose of his visit was to distribute over $ 100,000 in cocaine. In short, it is entirely likely that Hernandez has, or has access to, greater financial resources than he has acknowledged. See, e.g., United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991) (noting significant financial resources typically available to those involved in drug trafficking); see also § 5E1.2 Application Note 6.
Under these circumstances, the amount of the fine was clearly appropriate and justified, and we therefore decline to reconsider it.
Hernandez' next claim is that the DEA agents failed to advise him of his right to remain silent, and violated his Fifth Amendment rights. It is well established that an individual must be informed of his Fifth and Sixth Amendment rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), whenever "a suspect's freedom of action is curtailed to a 'degree associated with formal arrest.'" Berkemer v. McCarty, 468 U.S. 420, 440, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1983) (quoting California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1983)). See also Miranda, 384 U.S. at 444 (rule becomes applicable when suspect "has been taken into custody or otherwise deprived of his freedom of action in any significant way"). Based upon these formulations, it is clear that Hernandez was not entitled to Miranda warnings when he and Fregoso were interviewed at O'Hare and Midway Airports, because they were not in custody at the time. See United States v. Stephenson, 924 F.2d 753, 760 (8th Cir. 1991) (court found no custodial stop and, therefore, no right to Miranda warnings under similar facts). Hernandez was not handcuffed, surrounded by officers, or otherwise restrained.
The agents at O'Hare and Midway asked Hernandez to reply with their requests, but there was no testimony at trial that they ever used force, or suggested that compliance was required. Furthermore, both encounters took place in the public areas of the airport terminals. Under these facts, it is apparent that the interviews were lot "custodial," and, as a result, Miranda warnings were not required. Compare United States v. Fazio, 914 F.2d 950, 955 (7th Cir. 1990) (suspect not in custody when officers directed him to sit in unlocked office in his restaurant while they executed a search warrant) with United States v. Smith, 3 F.3d 1088, 1097-98 (7th Cir. 1993) (suspect in custody when he was frisked, handcuffed, and directed to sit in a particular place by the road).
Hernandez next suggests, albeit in his reply brief, that he was "mis-advised and coerced" into making a proffer to the government in exchange for the government's withdrawal of its notice pursuant to 21 U.S.C. § 851.
Although the basis for Hernandez' claim is not clear, we perceive two possibilities. First, he links his "proffer" objection to the Miranda objection, suggesting that if his Miranda rights had not been violated, he would not have been arrested, and no proffer would have been necessary. As we concluded above, however, Hernandez has not demonstrated that his Fifth Amendment rights were violated; as a result, his "proffer" claim, at least to the extent it is connected to his previous objection, must fail.
Hernandez also suggests that the proffer was born of an "'unholy marriage' between Government Counsel and Defense Counsel." From this language, we can only assume that he is suggesting that his counsel was ineffective. To support such a claim, however, a habeas petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and that the petitioner was prejudiced by the ineffectiveness, id. at 692. It is clear that Hernandez can not satisfy this burden. He was facing a mandatory minimum sentence of twenty years and overwhelming evidence against him. In return for a proffer of information, none of which could be used directly against him, and which in large part rightfully exonerated Fregoso, the government withdrew its Section 851 notice. Under the facts before us, we cannot conclude that the conduct of Hernandez' attorney in facilitating such a proffer fell below an objectively reasonable standard; on the contrary, it was entirely sensible. In short, regardless of how we characterize Hernandez' "proffer" objection, it is clearly unmeritorious.
Hernandez' remaining claim is that he was deprived of effective assistance of counsel throughout the course of his criminal proceedings. In support of this claim, he points to the above "errors." However, as we have concluded that all of his claims fail on the merits, it is apparent that Hernandez can satisfy neither prong of the Strickland test set forth above. Accordingly, his effective assistance of counsel claim must likewise fail.
For the reasons set forth above, Hernandez' petition for a writ of habeas corpus is denied. It is so ordered.
MARVIN E. ASPEN
United States District Judge