United States v. Faux

Decision Date08 July 2016
Docket NumberNo. 15–1282–cr,August Term, 2015,15–1282–cr
Citation828 F.3d 130
PartiesUnited States of America, Appellant, v. Danielle Faux, Defendant–Appellee.
CourtU.S. Court of Appeals — Second Circuit

828 F.3d 130

United States of America, Appellant
v.
Danielle Faux, Defendant–Appellee.

No. 15–1282–cr
August Term, 2015

United States Court of Appeals, Second Circuit.

Argued: March 22, 2016
Decided: July 8, 2016


David J. Sheldon, Assistant United States Attorney, for Deirdre M. Daly, United States Attorney for the District of Connecticut (with Mark H. Silverman, Assistant United States Attorney, on the brief), New Haven, Connecticut, for the United States of America.

Bradley D. Simon, Simon & Partners, LLP, New York, New York, for Defendant–Appellee.

Before: JACOBS and HALL, Circuit Judges, and RESTANI, Judge.*

DENNIS JACOBS, Circuit Judge:

The United States appeals from an order suppressing statements made by defendant Danielle Faux during a two–hour interview that was conducted in her home while a search warrant was being executed. The underlying allegation is that Faux fraudulently submitted bills for physical therapy sessions (which would be insurable) that were in fact (uninsured) sessions

828 F.3d 132

with personal trainers. The United States District Court for the District of Connecticut (Underhill, J. ) ruled that the circumstances of the interview amounted to a custodial interrogation and that the statements must be suppressed because Miranda warnings were not given. It can hardly be denied that the conditions of the interview exerted coercive pressure on Faux: armed law enforcement personnel entered her home at dawn, her vacation plans were abruptly canceled, and she was accompanied by an agent when she moved about her home; however, the circumstances did not rise to the level of a “custodial interrogation,” which is defined narrowly in our case law as circumstances akin to formal arrest. The Government stepped right up to the limits of constitutionally permissible conduct and, based on the facts accepted by the district court, just managed to toe the line. Accordingly, we vacate the order of the district court and remand for further proceedings not inconsistent with this opinion.

BACKGROUND

Following an evidentiary hearing, the district court described the factual background in its ruling on suppression. Our summary of the facts is taken from the district court's ruling. However, the district court did not purport to make actual findings of fact on several contested issues—especially on points where the record evidence was inconsistent—choosing instead to summarize the evidence.1 Our analysis rests on the factual findings the district court explicitly made, and we do not resolve the factual conflicts in the record.

Danielle Faux owns and operates a physical therapy practice in Norwalk, Connecticut; she is also part–owner of a gym in the same building. Faux sometimes refers her physical therapy patients for sessions with personal trainers at her gym. Only physical therapy services provided by a licensed physical therapist are covered by Medicare and by the insurance companies for which Faux was a participating provider; personal training services are of course not covered by insurance.

A former business partner of Faux approached the Government about a scheme to defraud Medicare and insurance companies by billing personal training sessions as physical therapy. The Government conducted an 18–month investigation into Faux's business: grand jury subpoenas were issued for Faux's billing and financial records, and Faux's former partner wore a wire to record conversations with Faux and with Faux's patients.

A search warrant was executed at her home on December 8, 2011, “just as the sun was coming up.” Approximately 10 to 15 agents2 from three agencies3 executed the search warrant. Upon their arrival, the

828 F.3d 133

agents saw Faux's husband, Nicholas Corwin, who was in the driveway loading their car with suitcases in preparation for the couple's departure for a vacation in Mexico. The agents approached Corwin, identified themselves, and advised him that they were there to execute a search warrant.

The agents entered the house through a door between the garage and the main front door. Faux was at the end of the hallway, fully dressed and toting luggage. The two agents tasked with questioning Faux, FBI Special Agent Matthew McPhillips and HHS–OIG Special Agent Lucille Fontes, approached her and told her they had warrants to search her residence and her physical therapy practice. Faux volunteered that the use of personal trainers was entirely separate from her physical therapy practice. McPhillips testified that he “responded very bluntly, very directly, back to her in a manner in which she would understand that I didn't believe what she was telling me.” United States v. Faux , 94 F.Supp.3d 258, 265 (D. Conn. 2015).

Faux informed the agents that she was about to leave for vacation. According to Faux, McPhillips replied that she was “not going anywhere.” Id. It is unclear whether in context the statement would be an order or a prediction, and McPhillips denied making that statement, or otherwise telling Faux to cancel her plans, or making any similar threats. The district court made no explicit finding as to whether the statement was made; instead, the district court found that “[w]hether or not McPhillips made that statement, that is the message that would have been communicated to a reasonable person in Faux's situation.” Id. at 277.

The district court further inferred that “[i]t is impossible to believe that Faux voluntarily chose to answer questions for two hours rather than choosing to go on a vacation with relatives.” Id. This inference was reinforced for the district court by the seizure of her cell phone, which left her with “no means to tell the others traveling that the vacation had been interrupted.” Id. It is “undisputed” that both agents heard Faux inform her husband that their vacation would be cancelled because agents were there to discuss the “crossover” of the businesses, and neither agent reassured Faux that cancellation or postponement was unnecessary. Id. at 265.

During the execution of the warrant and the interview, McPhillips and Fontes were dressed in business attire. Many of the other agents wore jackets that identified them as law enforcement. Neither McPhillips nor Fontes drew a weapon while at Faux's residence. However, according to Faux's affidavit, she knew or believed that most, if not all, of the agents present at her home were armed. (She was correct.)

The questioning took place in Faux's dining room. Faux asserts that she was escorted there while an agent held her arm, whereas Fontes testified that Faux went “on her own volition” and that the agents did not touch her. Faux's husband, Corwin, was questioned in the living room, and the agents did not offer Faux an option to be in the same room.

During the two–hour interview, Faux was not allowed to move freely in her home: Fontes accompanied her to the bathroom and stood outside the door, and accompanied Faux to her bedroom when she wanted to get a sweater. The agents testified that the restrictions on Faux's movement and on her ability to communicate (her cell phone was seized) were for the purposes of (1) officer safety and (2) evidence preservation; but there is “no indication that Faux was ever informed of those rationales.” Faux , 94 F.Supp.3d at 266.

828 F.3d 134

Both agents testified that the questioning was conversational and that they did not raise their voices. McPhillips testified that Faux seemed calm and comfortable and at one point even joked with the agents. Fontes testified that Faux seemed “worried.” Faux's affidavit stated that she felt threatened, scared, and intimidated by the agents and that she did not think she was free to leave. Both agents testified that Faux never expressed a desire to terminate the interrogation and that she would have been free to leave the residence if she had asked.

Faux was never specifically informed that her participation was voluntary, that she did not have to answer questions, or that she was free to leave. However, 20 minutes into the interview she was told that she was “not under arrest.”4 Faux says that she asked McPhillips whether she needed a lawyer, and Faux says that McPhillips responded “not yet.” Both agents denied that McPhillips made that statement and that Faux ever asked about a lawyer. The district court made no specific finding as to whether Faux actually requested a lawyer.

After the investigation was complete, Faux was indicted for health care fraud.5 Faux moved to suppress the statements she made during the execution of the search warrant; she argued that the interview was under circumstances that amounted to a custodial interrogation and that her statements must be suppressed because she was never given Miranda warnings. The district court granted the motion, and the Government now appeals that suppression ruling.6

DISCUSSION

On appeal from a suppression ruling, we review factual findings for clear error and we review questions of law de novo. United States v. Rodriguez , 356 F.3d 254, 257–58 (2d Cir. 2004). We have sometimes posited that on a suppression motion we review facts both for clear error and in the light most favorable to the prevailing party; but we have...

To continue reading

Request your trial
51 cases
  • United States v. Mansour, 15-CR-160-A.
    • United States
    • U.S. District Court — Western District of New York
    • April 27, 2017
    ...S.Ct. 1602, that suggests to a reasonable person that she is restrained in a way comparable to formal arrest. See United States v. Faux , 828 F.3d 130, 137–37 (2d Cir. 2016) (where 10–15 agents were present for search of defendant's home "for a paperwork fraud scheme," concluding that the "......
  • United States v. Gomez
    • United States
    • U.S. District Court — Southern District of New York
    • July 29, 2016
  • State v. Brandon
    • United States
    • Connecticut Supreme Court
    • December 30, 2022
    ...his or her own home, or while incarcerated, or during the course of a traffic stop or other lawful detention. See United States v. Faux , 828 F.3d 130, 135–36 (2d Cir. 2016) (recognizing that suspect might not feel free to leave or terminate interrogation conducted in his or her own home, b......
  • United States v. Santillan
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 24, 2018
    ...to leave; and (2) there was a restraint of freedom of movement akin to that associated with a formal arrest. See United States v. Faux , 828 F.3d 130, 135 (2d Cir. 2016). For the second step, relevant factors are whether the suspect is told that he or she is free to leave, the location and ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT