United States v. Fautz

• Decision Date: 15 August 2011
• Docket Number: Criminal No. 08–352 (MLC).
• Citation: 812 F.Supp.2d 570
• Parties: UNITED STATES of America v. Raymond C. FAUTZ, Defendant.
• Court: U.S. District Court — District of New Jersey

812 F.Supp.2d 570

UNITED STATES of America

v.Raymond C. FAUTZ, Defendant.

Criminal No. 08–352 (MLC).

United States District Court, D. New Jersey.

Aug. 15, 2011.

Paul J. Fishman, United States Attorney, Jennifer L. Davenport, Assistant United States Attorney, for the United States of America.

Anthony J. Fusco, Jr., Fusco & Macaluso, LLC, Attorneys at Law, for Defendant, Raymond C. Fautz.

MEMORANDUM OPINION

MARY L. COOPER, District Judge.

+----------------------------------+
                ¦PRELIMINARY STATEMENT         ¦578¦
                +----------------------------------+
                

                I. FINDINGS OF FACT                                                     578
                

   A.   Issuance of the search warrants                                 579
                   B.   Preparations for search warrant execution                       583
                   C.   Events at apartment prior to the arrest                         585
                   D.   Events at both premises subsequent to the arrest                593
                   E.   Events during post-arrest transport of defendant                596
                   F.   Indictment and prosecution                                      599
                

                II. CONCLUSIONS OF LAW                                                  599
                

   A.   Fourth Amendment: The search warrants                           600
                   B.   Fourth Amendment: Seizure and arrest of defendant               608
                   C.   Fourth Amendment: Conduct of the search                         615
                   D.   Fifth Amendment: Pre-arrest statements                          616
                   E.   Fifth Amendment: Post-arrest statements during transport        633
                   F.   Physical evidence: The firearms and ammunition                  648
                

CONCLUSION                                                              650
                

PRELIMINARY STATEMENT

A grand jury returned a one-count indictment charging that on or about June 26, 2007, defendant, Raymond C. Fautz, having previously been convicted of a felony, knowingly possessed a loaded .22 caliber Smith and Wesson handgun, in violation of 18 U.S.C. § 922(g)(1). Defendant has filed an omnibus motion seeking to suppress (1) all property, including the charged firearm, seized during the execution of search warrants on that date; and (2) all statements made by defendant allegedly in violation of the Fifth and Sixth Amendments, and all evidence obtained from those statements.

The Court conducted an evidentiary hearing and has considered the arguments of the parties in their briefs and oral argument. This opinion sets forth our rulings on the suppression aspect of the motion pursuant to Federal Rule of Criminal Procedure 12(d). We will suppress defendant's pre-arrest statements, but we will deny the motion as to his post-arrest statements and the physical evidence.¹

I. FINDINGS OF FACT

The Court finds the following facts, based upon the court records and the evidence submitted on this motion. Most of the chronological facts are undisputed. Such conflicts as arise in the evidence are noted and resolved based upon our evaluation of credibility and the record.

A. ISSUANCE OF THE SEARCH WARRANTS

Defendant, Raymond C. Fautz, previously pled guilty and was sentenced in this United States District Court for violating 18 U.S.C. § 1001 (false statements), a Class D felony, in connection with misbranded parts supplied to United States Department of Defense (“DoD”) prime contractors. United States v. Raymond C. Fautz, Crim. No. 96–179–02 (D.N.J.), Judgment of Conviction filed 3–10–97 (Crim. No. 96–179–02, dkt. 14). He received a sentence of three years probation, with a restitution amount to be paid to the Department of Defense. ( Id., dkt. 14 at 3.) ²

The instant action commenced with a criminal complaint filed against Mr. Fautz in this Court on June 26, 2007, followed by an indictment filed on May 14, 2008, and a superseding indictment filed on April 9, 2009. (Complaint, Mag. No. 07–1127, dkt. 1; Indictment, Crim. No. 08–352, dkt. 1; Superseding Indictment, id., dkt. 15.) The charge against defendant in this case is that on or about June 26, 2007, in the District of New Jersey, defendant, having been convicted in a federal court of the felony offense in Criminal Action No. 96–179, did knowingly possess ammunition and a firearm, namely one .22 caliber Smith and Wesson Model 34 handgun bearing serial number Ml57464, loaded with four rounds of ammunition. (Superseding Ind., dkt. 15.) ³ The pending suppression motion pertains to the events that surrounded the arrest of Mr. Fautz at his home on June 26, 2007, during the execution of a federally-issued search warrant.

The Department of Defense has an Office of Inspector General, which includes a unit named Defense Criminal Investigative Service (“DCIS”). DCIS maintains offices in various locations around the nation. At the times relevant to this action, DCIS had an office named the DCIS New Jersey Resident Agency, located in Edison, New Jersey. DCIS Special Agent Zachary P. Hatcher (“Agent Hatcher”) was one of the agents assigned to that office.

On June 20, 2007, Agent Hatcher, accompanied by an Assistant United States Attorney, appeared before U.S. Magistrate Judge John J. Hughes at the federal courthouse in Trenton, and presented an Application and Affidavit for Search Warrant, seeking to search two specified premises in Morris County, New Jersey. The addresses were an apartment in Denville and a storage facility in Montville. The Magistrate Judge witnessed the signature of Agent Hatcher on the sworn Application and Affidavit, and issued two search warrants, one for each specified location. Those matters were sealed on the docket at the time the search warrants were issued.⁴

Agent Hatcher's search warrant affidavit (“Affidavit”) was Attachment B of the Application. It was 22 pages long, single-spaced. (Dkt. 5–2 at 2–3, 5–22.) The introductory text stated:

I am currently involved in an investigation into violations of Title 18, United States Code, Section 1001 (“False Statements”), Section 287 (“False Claims”), and Section 1343 (“Wire Fraud”) (“Specified Federal Offense”) by Electronic Connections Incorporated (“ECI”) and Transistor and Electronic Components Inc. (“TEC”). ECI was created by [named individual], President of ECI, on December 29, 1994, as a world wide independent stocking distributor of transistors, capacitors, tubing, hardware, terminal blocks, and electronic connectors for the aerospace, military and commercial industries. Investigation revealed ECI in-fact purchased nonconforming, substitute, remarked, military parts from Raymond Fautz (“Fautz”), owner of Transistor and Electronic Components Inc. (“TEC”).... TEC, in this case, manufactured and distributed electronic parts to ECI. ECI purchased the subject military parts from TEC and supplied those parts and certifications to the DoD. Investigation revealed that TEC is currently operating at [apartment address], Denville, NJ 07834 and maintains a storage unit at [storage facility address], Montville, NJ 07045. This Application and Affidavit is submitted in support of a request for a search warrant to search [the premises at those two stated addresses].

....

Based upon testing reports, contract files, and other documentation the investigation revealed probable cause that through ECI, TEC provided parts to the DoD, which were re-branded, re-marked, substitute and nonconforming items which cannot be used in the various military applications they were designed for and pose a serious safety concern to the applications and personnel operating those systems.

( Id. at 6.)

The Affidavit stated that Agent Hatcher had received information from the DoD Supply Center, Columbus, Ohio (“DSCC”), Counterfeit Material/Unauthorized Product Substitution group that 56 DSCC purchase orders awarded to ECI valued at $251,711.98 had been tested and were found to contain re-branded, re-marked, substitute and/or nonconforming military parts. Of that group of 56 purchase orders, 47 were identified as critical application items. ( Id. at 7.) ⁵ The Affidavit stated that investigation revealed that between February 26, 2001, and August 21, 2004, ECI entered into approximately 429 contracts with the DoD totaling approximately $1,085,045.39; that TEC supplied all of the parts on the contracts ECI had with the government; and ECI paid TEC approximately $858,066.84. ( Id.)

The Affidavit described four of those defense contracts in detail. The contracts were for transistors, semiconductors, connector plugs and thyristors [sic] to be used in military Tier I Weapons Systems including the Minuteman Missile, the B–1B Bomber, and the Nimitz class submarines, and all four contracts were for critical application items. It stated that the contracts cited the exact parts and exact companies that manufactured those parts, and ECI responded to the bid specifications by bidding that it would provide the exact part number manufactured by the exact company cited in the solicitation. ( Id.) The Affidavit averred:

The parts supplied to the DSCC resembled the required parts cited in the contract. However, the parts TEC provided to ECI which were then supplied to the DSCC were counterfeit parts. As more fully set forth below, the original markings on the parts were removed and a new part number was applied. Based upon the DSCC Electronic Testing Center ... reports, the items received from ECI were re-stamped with the part number ... cited in the contract. However, the presence of the original markings on the parts were still visible beneath the new applied markings. Based upon investigation, these parts were purchased from Raymond Fautz, TEC.

( Id.)

The Affidavit explained that the investigation to date had included execution of a search warrant at ECI headquarters, which yielded ECI vendor files and other business records. ( Id. at 7–8.) Those ECI records showed that the subject parts were obtained by ECI from TEC, after ECI had sent TEC the DoD bid specs for each prospective contract and TEC informed ECI if it could manufacture the part specified in the...