United States v. Folks

• Decision Date: 06 April 2020
• Docket Number: Criminal No. 18-1
• Citation: 452 F.Supp.3d 238
• Parties: UNITED STATES of America, v. James FOLKS, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

452 F.Supp.3d 238

UNITED STATES of America,

v.James FOLKS, Defendant.

Criminal No. 18-1

United States District Court, W.D. Pennsylvania.

Signed April 6, 2020

Craig W. Haller, United States Attorney's Office, Pittsburgh, PA, for Plaintiff.

Linda E. J. Cohn, Federal Public Defender's Office, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION

Nora Barry Fischer, Senior U.S. District Judge

I. INTRODUCTION

In this case, Defendant James Folks is charged with one count of attempt to possess with intent to distribute 100 grams or more of methoxyacetyl fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(vi) and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). (Docket No. 11). Presently before the Court is a motion to suppress evidence filed by the Defendant and the Government's opposition thereto. (Docket Nos. 47; 50). Specifically, Defendant seeks suppression of the methoxyacetyl fentanyl seized by law enforcement in an international mail package shipped to him from South Korea, statements he made upon his arrest, and drug paraphernalia and a firearm seized upon the search of his residence. (Docket No. 47; 70). The Court held a suppression hearing on November 19, 2019, the official transcript of which was filed on December 20, 2019. (Docket Nos. 57; 59). The Government filed its proposed findings of fact and conclusions of law on January 3, 2020, and after receiving several extensions from the Court, Defendant made his submission of same on February 28, 2020. (Docket Nos. 61; 70). The parties declined to submit any responses by the Court's deadline of March 6, 2020, at which time the Court took the matter under advisement. (Docket Nos. 67). After careful consideration of the parties' filings and the credible evidence of record, and for the following reasons, Defendant's Motion to Suppress [47] is denied.

II. BACKGROUND

At the hearing, the Government presented the testimony of U.S. Postal Inspector Steven Celletti and introduced a photograph of the international mail parcel as an exhibit. (Docket No. 59; Govt. Ex. 1). Defendant did not call any witnesses and instead relied upon cross-examination of Inspector Celletti. (Docket No. 59). The two warrants issued by U.S. Magistrate Judge Maureen P. Kelly including a Tracking Warrant dated December 6, 2017 and a Search Warrant for Defendant's residence and vehicle dated December 7, 2017 were also made part of the record. (Def. Ex. 1; Docket No. 50-1). In this Court's opinion, Inspector Celletti offered credible testimony concerning the events in question, despite efforts to impeach him. See United States v. Garcia , 521 F. App'x 71, 73 (3d Cir. 2013) (quoting Anderson v. City of Bessemer , 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ) (" ‘[w]hen findings are based on determinations regarding the credibility of witnesses ... for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said.’ "). He also presented as an experienced law enforcement officer and investigator.

To this end, Inspector Celletti is a college graduate who joined the U.S. Postal Service after a few years of private employment. (Docket No. 59 at 74). He initially started as a mail carrier but completed a 14-week training course to become a postal inspector in 2004, a position he has held for the past 15 years. (Id. ). For the first year, Inspector Celletti was assigned to the Cleveland office where he worked on internal theft cases but then transitioned to narcotics and money laundering and transferred to the Pittsburgh office near the end of 2007. (Id. ). He now has extensive experience investigating narcotics and money laundering facilitated through the use of the United States mail, serving as case agent for many cases in this District. (Id. at 6-7). Inspector Celletti told the Court he has learned through his experience that Southeast Asia is a known source location for the production of fentanyl and fentanyl-related controlled substances imported into the United States. (Id. at 16). He further explained that illegal fentanyl production largely takes place in China but as parcels from that country have become a focus of law enforcement efforts to interdict packages, oftentimes traffickers will send them to another location, such as South Korea, to have them imported into the United States with less scrutiny. (Id. at 77).

Inspector Celletti is the case agent for the investigation and prosecution of Defendant and is a part of a team that also includes law enforcement officers from the Department of Homeland Security/Homeland Security Investigations ("DHS/HSI"); the United States Postal Investigation Service ("USPIS"); the Pennsylvania Attorney General's Office ("PAAG"); and the Pennsylvania State Police ("PSP"). (Docket No. 59 at 7). Among others on the team, PSP Trooper Dave Williams and DHS Agent Christopher McKelvy played significant roles. (Id. at 6-7, 17-18).

During late summer/early fall 2017, the investigative team received several credible leads linking Defendant to fentanyl trafficking. (Docket No. 59 at 7-11). In August of 2017, Inspector Celletti was told by a PSP Trooper that a known informant advised him that Defendant was receiving fentanyl in the mail. (Id. at 7-8). A month later, DHS personnel in New York City intercepted an international mail parcel addressed to Defendant which was searched and contained a white powdery substance that tested positive as a form of fentanyl. (Id. at 9). In November of 2017, the investigative team received information that another known informant had told the PAAG that Defendant was due to receive additional fentanyl through the mail in late November or early December of 2017. (Id. at 9). The team also conducted an investigation of Defendant and learned all of the following: that he had several prior convictions for drug crimes; he lived at a residence on Ridge Avenue in East Pittsburgh, Pennsylvania; and also had a P.O. Box at the Homestead, Pennsylvania Post Office. (Id. at 10-12). After considering all of this information, Inspector Celletti placed a parcel watch with the Postal Service System on any addresses known to be used by Defendant which would alert Inspector Celletti by email of any parcels within 24-48 hours of delivery to Defendant. (Id. at 10-12).

On December 5, 2017, Inspector Celletti received an alert that an international mail parcel addressed to Defendant at his P.O. Box in Homestead was scheduled to arrive in Pittsburgh the next day. (Docket No. 59 at 11-12). The parcel was shipped from South Korea to Pittsburgh through J.F.K. International Airport in New York, and its origin in Southeast Asia raised Inspector Celletti's suspicion that it contained fentanyl. (Id. at 12). The investigative team decided to have Homeland Security conduct a border search of the parcel in Pittsburgh, rather than New York, so that they could further investigate Defendant's involvement in fentanyl trafficking. (Id. at 12-13). When the parcel arrived at the Postal Service's North Side distribution facility on the morning of December 6, 2017, Inspector Celletti retrieved it and brought it directly to the U.S. Postal Inspection Service Pittsburgh Office in Robinson Township, where Agent McKelvy of DHS/HIS and Trooper Williams joined him. (Id. at 12-14). The parcel had not yet cleared customs and was not opened at this time. (Id. at 13, 18).

Inspector Celletti described the parcel as approximately 10 to 12 inches long and 8 to 9 inches wide. (Docket No. 59 at 15). The entire box was wrapped in black paper and heavily taped so that the cardboard was not visible. (Id. at 16). The Korea Post/United States Postal Service shipping label states that it is from "Tel: 82-2-2662-8851"; "Zhirong Koreanair Cargo Terminal"; Zip 22381; "Rep. of Korea"; and also contains a reference to "China." (Gov. Ex. 1; Def. Ex. 1). The parcel is addressed to: James Folks, P.O. Box 591, Homestead, Pennsylvania 15120, United States of America. (Id. ). The associated customs declaration claims that the contents of the package are "warm clothing" with a weight of 1273 grams and a value of $10.00 U.S. currency. (Id. ). Inspector Celletti explained that a stamp on the bottom of the shipping label indicated that it was placed in the mail in South Korea on November 19, 2017 and to be delivered to the United States through J.F.K. International Airport, a process which he explained can take 10-15 days. (Docket No. 59 at 77-78).

The parcel was taken to a ventilated room within the office which is specially designed for opening these types of parcels and Inspector Celletti, Agent McKelvy and Trooper Williams put on gloves and masks to protect themselves from exposure to potentially harmful chemicals. (Docket No. 59 at 45; 76). Agent McKelvy then exercised his authority as a Homeland Security Agent and conducted a border search of the parcel. (Id. at 17-18).

Upon opening the parcel, the law enforcement officers all observed that the parcel contained approximately 1 kilogram of a white powdery substance. (Id. at 18-19). Trooper Williams utilized a TruNarc device to field test the substance. (Id. ). Inspector Celletti explained that a TruNarc is a handheld mechanical scanning device which can be used by law enforcement to field test narcotics by scanning the substance. (Id. at 18-19). The device maintains a library of controlled substances and will alert if the material scanned contains one of the controlled substances in the library. (Id. ). The device will work through glass or clear plastic but not through cardboard or black paper. (Id. at 44-45). He testified that the TruNarc device does not need to be calibrated and can be used by pointing it at the suspected controlled substance and scanning. (Id. at 46).

The TruNarc device also generates scan reports which can be printed. (Def. Ex. 1). Those reports indicate that Trooper Williams conducted...