U.S. v. Sasson, 03-CR-489(ERK).

• Decision Date: 13 September 2004
• Docket Number: No. 03-CR-489(ERK).,03-CR-489(ERK).
• Citation: 334 F.Supp.2d 347
• Parties: UNITED STATES of America, v. Ezra SASSON and Zakay Sasson, Defendants.
• Court: U.S. District Court — Eastern District of New York

334 F.Supp.2d 347

UNITED STATES of America, v. Ezra SASSON and Zakay Sasson, Defendants.

No. 03-CR-489(ERK).

United States District Court, E.D. New York.

September 13, 2004.

Jed E. Davis, Assist. U.S. Atty, (Roslynn R. Mauskopf, U.S. Atty.), Brooklyn, NY, for U.S Donald Bierman, Scholat & Sale, Miami, FL, for defendants.

MEMORANDUM

KORMAN, Chief Judge.

Ezra Sasson and Zakay Sasson have been charged in a two count superseding indictment for their alleged participation in a money laundering conspiracy. Count One alleges that, from September 1999 until December 2002, the Sassons, along with three other co-defendants, conspired to conduct financial transactions involving the proceeds of specified unlawful activity, namely narcotics trafficking in violation of 21 U.S.C. §§ 841(a) and 846, and that those transactions were designed to conceal the nature, location, source, ownership and control of the proceeds of said narcotics trafficking, in violation of 18 U.S.C. § 1956(a)(1)(B)(i). Count Two alleges that, during the same time period, the Sassons, along with nine other co-defendants, knowingly conducted, controlled, managed, supervised, directed, and owned all or part of an unlicensed money transmitting business, in violation of 18 U.S.C. §§ 1960, 1962, and §§ 3551 et seq. They are pending trial.

On March 25, 2004, the Sassons moved to suppress all evidence that the United States Attorney has obtained through a wiretap placed on the cellular phone of one of their co-defendants, Natan Banda. In 1993, some nine years before the wiretap application was submitted, the Sassons had engaged in informal proffer sessions with a different United States Attorney in connection with a different crime. Before the proffer sessions, the Sassons had received assurances that any statements would be given pursuant to the derivative use provisions of 18 U.S.C. § 6002, and after the sessions, they were awarded transactional immunity for their past crime. The Sassons now contend that the wiretap application in this case relied on statements they had made in the informal proffer sessions nine years earlier. Consequently, they claim that the admission at trial of evidence procured through the wiretap would violate their Fifth Amendment privilege against self-incrimination. At oral argument held on July 13, 2004, I denied the Sassons' motion.

I write here to explain my reasoning more fully. The Sassons argue that they received the same use and derivative use immunity that they would have received had their testimony been compelled and that they therefore spoke at the proffer sessions with the assurance that (1) the immunized statements would never be used in the investigation of a future crime, and (2) if they were used, any resulting fruits of those statements would have to be suppressed. As Justice Frankfurter observed in Nardone v. United States, 308 U.S. 338, 340, 60 S.Ct. 266, 84 L.Ed. 307 (1939), "[a]ny claim for the exclusion of evidence logically relevant in criminal prosecutions is heavily handicapped. It must be justified by an over-riding public policy expressed in the Constitution or the law of the land." There is no such policy that supports the Sassons' argument in the circumstances of this case.

Background

In September 1992, federal authorities performed a routine car stop in northern Florida and seized $1.7 million in cash from Ezra Sasson. During the ensuing investigation, Ezra Sasson and his brother, Zakay Sasson, decided to cooperate with the United States Attorney for the Northern District of Florida. They became witnesses in an ongoing criminal investigation of a Colombia-based cocaine trafficker for whom they had laundered money. Neither Ezra Sasson nor Zakay Sasson was compelled to testify against himself. To the contrary, the Sassons provided their assistance in the hopes of receiving transactional immunity, or agreements of non-prosecution. Because the United States Attorney needed assurance that the Sassons had information sufficiently valuable to trade for transactional immunity, he needed to first hold a proffer session. On the other hand, the Sassons needed assurance that, if the proffer was found wanting, their statements would not be used to prosecute them for crimes they disclosed. The use immunity, as correspondence between the Sassons and the United States Attorney demonstrates, was simply an interim step by which the Sassons hoped to secure transactional immunity.

On November 2, 1993, Assistant United States Attorney Steven P. Preisser memorialized an invitation to engage in immunized proffer sessions in a letter to Ezra Sasson's attorney. It stated:

Ezra Sasson has agreed to meet with agents of the Drug Enforcement Administration and Internal Revenue Service/CID and to provide a detailed debriefing to those agents ... The debriefing will be given pursuant to the restrictions found in Rule 11(e)(6) of the Federal Rules of Criminal Procedure, Rule 410 of the Federal Rules of Evidence and the derivative use provisions of Title 18, U.S.C. § 6002.

Notice of Motion, Exhibit B (Letter, dated November 2, 1993). The letter also made clear that, if the United States Attorney was satisfied with the value of Ezra Sasson's cooperation, he and his family would be given transactional immunity.

If, after [ ] Ezra Sasson has been debriefed, the Office of the U.S. Attorney is of the opinion that Ezra Sasson has been totally candid and truthful in his disclosures and if the Office of the U.S. Attorney deems the information provided by Ezra Sasson to be of sufficient detail and value to warrant an investigation and/or prosecution of other individuals, then this Office would agree that Ezra Sasson, his wife Marlyn Sredni Sasson and his brother Zakay Sasson would not be subject to criminal prosecution within this district for the conduct occurring in this district on or about September 19, 1992 [the cash seizure].

Id. Regardless of whether or not the United States Attorney was ultimately willing to extend transactional immunity, however, Ezra Sasson would receive use immunity for his statements.

After the initial proffer session, the United States Attorney for the Northern District of Florida was apparently satisfied with Ezra Sasson's candor and level of cooperation. Thus, the informal immunity agreement was confirmed and memorialized in a letter to Ezra and Zakay Sasson:

I am writing in follow up of my letter of November 2, 1993. EZRA SASSON has met with agents of the Drug Enforcement Administration and the Internal Revenue Service/CID and has provided a debriefing to those agents. Based upon the limited information provided to me by those agents and by the monitoring Assistant United States Attorney in Tallahassee, FL, it is my judgment that the United States would agree to the negotiated settlement as set forth in its November 2, 1993, letter. Specifically, the United States Attorney for the Northern District of Florida agrees that EZRA SASSON will not be subject to prosecution for the conduct occurring in this district on or about September 19, 1992.

Notice of Motion, Exhibit B (Letter, dated December 6, 1993). The second letter also confirmed the immunity provisions of the agreement:

All statements given by EZRA SASSON will be as delineated in the November 2 1993, letter. You of course recognized that this office can not bind other offices relative to the non-prosecution agreement. However, I believe that the November 2, 1993, letter does protect EZRA SASSON as it pertains to the use of any statements that he might provide to agents in furtherance of this agreement.

Id. Finally, the letter explicitly extended the entire immunity agreement from Ezra Sasson to Zakay Sasson:

In order to facilitate an orderly disposition of these matters, this office is also willing to extend the same offer to ZAKAY SASSON. Specifically, any information provided by ZAKAY SASSON will be given pursuant to the restrictions found in 11(e)(6) of the Federal Rules of Criminal Procedure, Rule 410 of the Federal Rules of Evidence, and the derivative use provisions of Title 18, United States Code, Section 6002.

Id. The Sassons' cooperation ultimately led to indictments against two of their co-conspirators, Beatriz Dror and Carlos Kipershmit, and Ezra Sasson testified before the grand jury and at the sentencing of Ms. Dror. See Notice of Motion, Exhibit C; Defendants' Memorandum of Law, at 6. As a result, neither Ezra Sasson nor Zakay Sasson was ever charged with a criminal offense arising out of the 1992 cash seizure or their confessed money laundering activity.

Some eight years after the Sassons engaged in their principal proffer sessions, in November 2001, the United States Attorney for the Eastern District of New York began to investigate Ezra and Zakay Sasson's current co-defendant, Natan Banda, for an unrelated money laundering scheme. The Drug Enforcement Agency reported to investigators that it had learned from Dutch police that Banda was negotiating with Amsterdam-based drug traffickers to launder the proceeds of narcotics sales through Houston, Texas. See Notice of Motion, Exhibit F, at 5 (Letter Brief from Jonathan E. Davis to Judge Sifton in continued support of wiretap, dated July 15, 2002, hereafter "Letter Brief"). Then, in December 2001, investigators learned that an associate of Banda named Menachem Cohen had confirmed with the Israel National Police that Banda had laundered hundreds of thousands of dollars for the Amsterdam-based drug traffickers, and that Banda laundered money for a living. Id. Finally, investigators learned from the United States Customs Service that in August 2001, Customs inspectors had found Banda with a cash-counting machine concealed in his luggage upon returning to the United States from Amsterdam. Id.

These facts led the United States Attorney's Office for the Eastern District of New York to begin analyzing the call activity of Banda's cellular phone. Id. The phone's records...