U.S.A. v. Suarez

• Decision Date: 03 November 2000
• Docket Number: No. 99-1521,99-1521
• Citation: 263 F.3d 468
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Robert Suarez, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 468

263 F.3d 468 (6th Cir. 2001) United States of America, Plaintiff-Appellee,
v.
Robert Suarez, Defendant-Appellant. No. 99-1521 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Argued: November 3, 2000
Decided and Filed: August 8, 2001

Appeal from the United States District Court for the Eastern District of Michigan at Detroit, No. 97-81175, Bernard A. Friedman, District Judge.

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Carole M. Stanyar, Detroit, Michigan, for Appellant.

Jonathan Tukel, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

Before: KEITH, BOGGS, and COLE, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

Robert Suarez, a former police officer, was convicted by a jury of two violations of 18 U.S.C. § 666(a)(1)(A) for converting police evidence and victim restitution money

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to his own benefit. He was acquitted of several other charges, most notably bribery counts, and dozens of other charges, mainly having to do with violations of the Travel Act, were dismissed prior to trial. Suarez was sentenced to 37 months in prison. Suarez appeals his convictions on the grounds that he was prosecuted vindictively, that there was a failure to suppress a statement taken in violation of his right to counsel, and that the agency from which he stole has an insufficient connection with the federal government to fit within the language of the statute under which he was charged. As to one of the counts, he claims he should have received a directed verdict due to a defective indictment. For the reasons that follow, the court will affirm Suarez's convictions.

I

At the time of his trial, Robert Suarez was a 21-year veteran of the Dearborn Police Department ("DPD"), holding the rank of Detective Sergeant since 1991. Suarez was a bunco investigator and specialized in "traveling criminal groups." In particular, he concentrated on property crimes perpetrated by a number of groups of mainly Romany descent, known in common parlance as Gypsies. ¹ He became well-known for his expertise on Gypsy crime, serving as a consultant on such issues throughout the Midwest and Canada. He appears to have been the "point man" for this type of crime in Dearborn, where he was credited with a substantial reduction of criminal activity, and the resolution of numerous cases.

Suarez's techniques involved developing a close knowledge of local Gypsy families and community, including the use of informants. He would also apparently often seek restitution for victims of fraud or larceny from suspected perpetrators or their families; in exchange the victims would agree to drop criminal charges, even in cases where restitution was less than total. One of Suarez's main informants was an ex-convict known as Steve "Tula" Miller, his co-defendant below. Tula Miller ² had apparently contacted Suarez from prison in Lima, Ohio and informed him that the Gypsy community of Detroit was leaderless and that Tula wished to take it over. Exactly what Suarez promised to do for Tula and was promised in return was disputed below, but is ancillary to this appeal. Although the term is not used below, it appears Tula wished to acquire something like the traditional Gypsy status of "rom baro." Cf. Marks v. Clarke, 102 F.3d 1012, 1019 (9th Cir. 1996) (describing some features of this role). One traditional function of a rom baro is as an intermediary between a Gypsy community and the authorities. Apparently in an attempt to assume this role, it seems that Tula would (for a fee) assist Suarez in identifying and locating suspects, and in negotiating restitution agreements. As a result, victims would get some of their money back, Suarez would solve the case, the Gypsies would stay out of jail, and Tula would

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make some money as well as demonstrate his capacity to either invoke the power of the State of Michigan or to protect "his" people against it.

In July 1997, allegations began circulating to the Detroit FBI that Suarez was seeking personal financial benefit from his system of "community policing." Specifically, the Chicago Police Department had been informed by local Gypsies that Suarez would take care of cases for a fee; also, a member of the extended Miller family in Toledo told the FBI Suarez was seeking money from them by threatening to (properly) charge several Millers with a Detroit-area burglary. Along with leniency with regard to this particular crime, a number of these Millers (in a Pennsylvania jail at the time) hoped for favorable treatment in exchange for bringing down Suarez. They made numerous allegations of corruption against the defendant, including a claim that he would remove warrants from the electronic Law Enforcement Information Network (LEIN) and National Crime Information Center (NCIC) systems for a price. The FBI began a public corruption investigation and induced Nancy Miller, the mother and grandmother of several of the individuals being threatened - and the chief negotiator of payments to Suarez - to wear a wire during her meetings with the detective. Based on the results of this initial investigation Suarez was charged with conspiracy to extort, 18 U.S.C. § 1951, 18 U.S.C. §§ 371-372, and arrested on October 1, 1997.

The focus of the FBI's inquiry was initially on issues of bribery. The first, single-count indictment against Suarez charged him with a bribery violation of 18 U.S.C. §666(a)(1)(B). Essentially, the theory of the FBI appears to have been that while Suarez would sometimes partially compensate victims with the money he received, he sometimes would not, and would often in any event take a substantial "cut" for himself in exchange for allowing criminals to remain at large. His financial and personal relationship with Tula was thought to have evolved from one of detective-informant to that of partners in crime.

Suarez's need for money had increased because of his growing gambling addiction; he would often cross the border into Canada to gamble away the workday at Casino Windsor, withdrawing substantial sums from the casino's ATM. Tula frequently accompanied Suarez on these jaunts. Ultimately, Suarez was never convicted of the bribery charges. However, during the course of their investigation, the FBI uncovered other suspicious aspects of Suarez's dealings with the Gypsies, and from these come Suarez's two convictions currently on appeal.

In May and June 1994, Suarez had informed the Wayne County Prosecutor that he could identify the perpetrators of a series of utility repairman and roofing repair scams. Suarez also identified the location of the criminal proceeds, and participated in a joint raid at "The Psychic Studio," various pawn shops and a safety deposit box at Comerica. The material seized primarily consisted of jewelry -- some real, some false, some belonging to victims, some belonging to the Gypsies who fled the impending raid. Suarez acquired custody of this jewelry, valued at over $100,000, and kept it for an extended period of time in a police evidence locker to which he had exclusive access. Suarez claimed he was going to return the items to their true owners, and apparently did so with respect to some of the 299 pieces. Suarez, at the Police Department's request, also had this material appraised. However, the evidence tags Suarez placed on the items were defective, making it difficult for the DPD to use the internal procedures that normally tracked the disposition and custody of such items. After

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he was asked to remove the jewelry from the evidence locker (which is usually used only briefly) Suarez took the jewelry to his home instead of to the DPD property room, the normal storage location for valuables in the possession of the DPD. When Suarez was arrested, a search warrant at his house turned up this jewelry ("the search warrant evidence") in a locked briefcase.

At some point, Suarez became involved in selling the search warrant evidence to Gypsies unconnected with the raid (mainly another Steve Miller, who calls himself "Cho-Cho,"a witness in this case from Chicago) and by pawning it in unconnected pawn shops. The earliest recovered pawn receipt showing Suarez receiving money based on his pledge of search warrant evidence is dated February 17, 1995. The total amount of conversion exceeded $5000, a point not contested. When, in early July 1997, one of the pawnshops that had had material seized attempted to recover some jewelry Suarez had already transferred, he apparently purchased similar-looking but cheaper replacements. The conversion of the search warrant evidence resulted in a conviction under 18 U.S.C. § 666(a)(1)(A). Suarez claims that, at worst, he converted the jewelry later on, not when he assumed control over it and put it in the evidence locker (as the indictment reads); this he deems to have rendered his conviction invalid as being unsupported by the evidence.

Publicity about Suarez's arrest also brought to light the story of Mr. Stanley Jakuszewski. Mr. Jakuszewski was an elderly Detroit-area man who had been befriended by a young Gypsy woman named Ann Morgan. Jakuszewski had been inveigled by Morgan to withdraw from his bank account some $40,000, with which Ms. Morgan subsequently absconded. Jakuszewski's son-in-law filed a complaint, and the case was assigned to Suarez. Suarez contacted Morgan and claimed the victim would settle for $28,000 (plus $2000 to Suarez). He then told Jakuszewski he could get him half his money back, $20,000. Morgan gave several cashier's checks to Suarez made out to Jakuszewski. Suarez delivered $20,000 worth of these, receiving a receipt from Jakuszewski which he altered to $28,000 and showed to Morgan. Suarez then cashed at least one of these checks (for $5000) by forging Jakuszewski's name as an endorsement in blank and converting the cash to his own use. This behavior resulted in the second conviction under 18 U.S.C. § 666(a)(1)(A).

Both this conviction and the one...