United States v. Durand, 041619 FED2, 16-4206-cr

Docket Nº:16-4206-cr
Party Name:United States of America, Appellee, v. Jacques Durand, Defendant-Appellant.
Attorney:FOR APPELLEE: J. Matthew Haggans, (Susan Corkery, on the brief), Assistant United States Attorneys for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY. FOR DEFENDANT-APPELLANT: Allegra Glashausser, Federal Defenders of New York, Inc., Appeals Bureau,...
Judge Panel:Present José A. Cabranes, Rosemary S. Pooler, Christopher F. Droney, Circuit Judges.
Case Date:April 16, 2019
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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United States of America, Appellee,

v.

Jacques Durand, Defendant-Appellant.

No. 16-4206-cr

United States Court of Appeals, Second Circuit

April 16, 2019

UNPUBLISHED OPINION

AMENDED SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of April, two thousand nineteen.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Glasser, J.).

FOR APPELLEE: J. Matthew Haggans, (Susan Corkery, on the brief), Assistant United States Attorneys for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY.

FOR DEFENDANT-APPELLANT: Allegra Glashausser, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY.

Present José A. Cabranes, Rosemary S. Pooler, Christopher F. Droney, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the case is REMANDED to the district court for an evidentiary hearing on Defendant-Appellant's motion to suppress.

In 2016, Defendant-Appellant Jacques Durand was convicted by a jury of thirteen counts of access device fraud in violation of 18 U.S.C. § 1029, and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). A judgment was entered on December 12, 2016, sentencing Durand to 51 months' imprisonment, as well as a term of supervised release, restitution, and forfeiture. During their investigation, postal inspectors obtained un-Mirandized statements from Durand that linked him to the offense conduct. These statements were introduced at trial. Durand had filed a pre-trial motion to suppress those statements, which the district court denied without an evidentiary hearing, concluding that Durand's statements merely contained pedigree information and therefore Miranda warnings were not required. Durand now appeals the denial of his motion to suppress. For the reasons that follow, we REMAND for a suppression hearing.

Background1

During the winter of 2014, inspectors of the United States Postal Investigation Service began investigating complaints of mail theft and identity fraud in Queens and Nassau Counties, New York. The postal inspectors had received reports from local residents that fraudulent credit cards had been issued in their names, stolen from their mailboxes, and then used to make substantial purchases and cash withdrawals. One complainant provided inspectors with a physical description of the perpetrator, which was based on her mother's observation of the perpetrator removing mail from their mailbox on two occasions. The complainant also told the inspectors that members of her family had credit cards issued in their names without their authorization.

Citibank, Capital One Bank, and Bank of America-financial institutions affected by the identify fraud-assisted the investigation in two ways. First, the banks' fraud detection units informed the inspectors that these fraudulent credit cards issued to the complainant's family and others were used at ATMs serviced by JPMorgan Chase Bank, NA and Capital One Bank. These ATM branches then provided inspectors with surveillance photographs depicting a person who matched the complainant's description of the person provided by the initial complainant.

Second, the banks provided the inspectors with logs of the phone numbers used to call the banks about the...

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