United States v. O'Brien
| Citation | 926 F.3d 57 |
| Decision Date | 07 June 2019 |
| Docket Number | Docket No. 17-2087-cr,August Term, 2018 |
| Parties | UNITED STATES of America, Appellee, v. Michael O'BRIEN, aka Jeremy Soto, aka Stephen Conte, aka George Manolas, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
MARGARET LEE, Assistant United States Attorney, Brooklyn, New York (Richard P. Donoghue, United States Attorney for the Eastern District of New York, Amy Busa, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee.
SUSAN G. KELLMAN, Brooklyn, New York (Sarah Kunstler, Offices of Susan G. Kellman, Brooklyn, New York, on the brief), for Defendant-Appellant.
Before: KEARSE, LIVINGSTON, and CARNEY, Circuit Judges.
Defendant Michael O'Brien appeals from a judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Roslynn R. Mauskopf, Judge , convicting him of five drug trafficking offenses, to wit, importing methylone and anabolic steroids, and conspiring to do so, in violation of 21 U.S.C. §§ 952(b), 960(b)(3), 960(b)(5), and 963 (Counts Two and One); possessing with intent to distribute those substances, and conspiring to do so, in violation of id . §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(E), and 846 (Counts Four and Three); and operating a stash house, in violation of id . §§ 841(a)(1), 856(a)(1), and 856(b) (Count Five); and sentencing him principally to 144 months' imprisonment, to be followed by a five-year term of supervised release. On appeal, O'Brien contends principally (a) that the district court erred in denying his pretrial motion to suppress, on Fourth and Fifth Amendment grounds, his postarrest statements and evidence seized from his apartments, arguing that his statements and any consents to search were unknowing and involuntary because he was incapacitated by his addiction to and withdrawal from a human growth hormone called Gamma-Hydroxybutyrate ("GHB"); and (b) that the evidence at trial was insufficient to establish that he knew the substances he was importing and possessing for distribution were controlled substances. He also contends that the designation of methylone as a controlled substance, making trafficking in that substance unlawful, was implemented through an unconstitutional delegation of Congress's legislative power to the United States Attorney General, and that the designation process--publication in the Federal Register--did not constitute notice sufficient to afford due process. Finding no merit in his contentions, we affirm the judgment.
The present prosecution had its origin in seizures on September 20, 2013, by United States Customs and Border Protection ("CBP") officers, of three packages at the mail facility of John F. Kennedy International Airport, each addressed to a different person--none of them O'Brien--at the locations of different mailbox stores in Brooklyn, New York. Each package was field-tested and found to contain approximately one kilogram of methylone (commonly referred to as "Molly"). CBP informed agents of Homeland Security Investigation ("HSI"), who took possession of the packages.
HSI agents replaced the methylone in each intercepted package with a sham substance, and they conducted controlled deliveries on September 23. One of the addressees, Kimberly Ruud, arrived at the mailbox store to which a seized package had been sent to a different addressee; she picked up that package, along with a nonintercepted package that was addressed to her, and began to drive away. Ruud was stopped and arrested. She consented to a search of her car. In addition to the two packages she had just collected, which were in the car's passenger area, agents found, inter alia , four packages in the trunk and two cellphones. Although the labels on the packages identified their respective contents as various uncontrolled substances, the six packages contained a total of nearly three kilograms of methylone and nearly three kilograms of anabolic steroids. An ensuing search of Ruud's cellphones revealed a series of communications on September 23 with a contact listed as "Big," who was eventually identified as O'Brien.
On October 10, 2013, pursuant to a 2011 New York State bench warrant issued by the Suffolk County Superior Court ("county court") for the arrest of O'Brien on a firearms charge on which he had pleaded guilty but had become a fugitive, O'Brien was arrested by members of a state-and-federal task force that included HSI Special Agent Vincent Marino and Special Agent Edward Alahverdian of the United States Drug Enforcement Administration ("DEA"). The arrest warrant was executed at O'Brien's apartment on College Point Boulevard in Queens, New York (the "College Point Apartment" or "Apartment").
As set out in greater detail in Part I.B. below, after O'Brien was arrested and handcuffed, he was given Miranda warnings by Alahverdian. O'Brien said that he understood his rights and was willing to answer some questions; and when Alahverdian asked whether the agents could search the apartment, O'Brien said they could look anywhere they wanted. Searching the Apartment pursuant to that consent, the agents found, inter alia , several kinds of drug paraphernalia, including lists of anabolic steroid chemicals; vials of a liquid labeled "Genzyme" (a steroid brand name) and hundreds of sheets of additional "Genzyme" labels; currency-counting machines and more than $ 10,000 in cash; 18 cellphones and 12 laptop computers; identification documents in various names, along with blank identification cards and an identification-card printer; applications and receipts for mailbox rentals at mailbox stores throughout Brooklyn; 27 airway bills for packages mailed from China; and a ledger with annotated lists of anabolic steroids, locations, and phone numbers for pick-up.
In the meantime, O'Brien was driven to a police precinct in Suffolk County by Alahverdian, Marino, and a Suffolk County police officer. During the drive, O'Brien was talkative, stating that he made purchases of methylone and anabolic steroids from China online (describing the brand and color of the computer he used for that operation), and explaining that he had people in the United States rent local mailboxes and collect the packages he was importing.
After their arrival at the precinct, Alahverdian and Marino formally interviewed O'Brien. Marino stated that the agents knew O'Brien had a "stash house" in an apartment at 132-35 41st Road in Queens ("41st Road"), and asked for his consent to search it. After Marino read a Department of Homeland Security, U.S. Immigration and Customs Enforcement ("DHS/ICE") consent form aloud and gave it to O'Brien to read, O'Brien signed it. The form signed by O'Brien states as follows:
I, Michael O'Brien, have been informed by U.S. Immigration and Customs Enforcement (ICE) Special Agent Vincent Marino of my right to refuse to consent to a search of my property, described as: ...
(Consent To Search dated October 10, 2013 (O'Brien's "Written Consent To Search" (bolding in original)), attached to Affidavit of Michael O'Brien dated April 30, 2019 [sic ] ("O'Brien Suppression Motion Aff."), in support of motion to suppress.)
Based on this written consent, law enforcement agents searched the 41st Road apartment and found, inter alia , numerous pills, powders, and jugs of liquid, and approximately 11 kilograms of methylone. In addition, pursuant to a search warrant, HSI Special Agent Joshua Schottenfeld, who had participated in the search of the College Point Apartment, searched the computer that O'Brien told Alahverdian and Marino he used to order methylone and anabolic steroids from China. That computer contained receipts and a web browser history of orders from a website offering legal and illegal items, including narcotics.
After O'Brien signed the written consent form at the police precinct, he was taken to the county court pursuant to the bench warrant issued for his arrest as a fugitive. In that court proceeding, the prosecutor asked that bail be denied, noting that O'Brien apparently had access to large amounts of cash, as the search of his apartment at the time of his arrest found "lots of pills" and "kilos of cocaine" (People v. O'Brien , No. 2456-2009, Superior Court of the State of New York, County of Suffolk, October 10, 2013 ("County Court Transcript"), at 2-3). The court noted that it had issued the bench warrant for O'Brien's arrest in May 2011 and that O'Brien had remained a fugitive for more than two years, and it ruled that bail would thus be denied.
O'Brien's attorney then informed the court that O'Brien needed medical attention because he was addicted to GHB. O'Brien himself stated that the full name of GHB was Gamma-Hydroxybutyrate and explained its nature and effects. The proceeding ended with the court's scheduling O'Brien's next appearance.
Following that county court proceeding, O'Brien was admitted to a nearby medical center, where he remained for five days, prior to being sent to the ...
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