United States v. Harder
| Citation | 180 F.Supp.3d 355 |
| Decision Date | 15 April 2016 |
| Docket Number | Crim. No. 15-1 |
| Parties | United States of America v. Dmitrij Harder. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Adam L. Small, Leo R. Tsao, Jason Dean Linder, U.S. Department of Justice, Washington, DC, Michelle Morgan, U.S. Attorney's Office, Philadelphia, PA, for United States of America.
Ian M. Comisky, Matthew David Lee, Blank Rome Comisky & McCauley LLP, Stephen Lacheen, Lacheen Dixon Wittels & Greenberg LLP, Philadelphia, PA, for Dmitrij Harder.
Diamond
, J.
Upon his return to the United States from abroad, Defendant Dmitrij Harder—a Russian national and U.S. lawful permanent resident—was questioned in New York's Kennedy Airport by federal agents. Subsequently charged with participating in an international bribery scheme, Harder has moved to suppress his statements, arguing that the agents failed to provide him with Miranda
warnings. (Doc. No. 38.) The Government responds that warnings were unnecessary because Defendant was not “in custody,” and that Miranda requirements are relaxed during border questioning. (Doc. Nos. 56, 75, 96.) I will deny Defendant's Motion.
On January 6, 2015, the grand jury returned a fourteen-count Indictment, charging Defendant with conspiracy to violate the Foreign Corrupt Practices and Travel Acts, substantive violations of the FCPA and Travel Act, conspiracy to commit international money laundering, substantive violations of the international money laundering statute, and aiding and abetting. (Doc. No. 1, Cts. 1-14); 18 U.S.C. § 371
; 15 U.S.C. § 78dd-2 ; 18 U.S.C. § 1952 ; 18 U.S.C. § 1956(h), (a)(2)(A) ; 18 U.S.C. § 2. The grand jury returned a Superseding Indictment on December 15, 2015 with the same counts and several wording changes. (Doc. No. 62.) The Government alleges that from 2007 to 2009, Defendant conspired to pay and conceal some $3.5 million in bribes to Tatjana Sanderson, the sister of European Bank of Reconstruction and Development officer Andrej Ryjenko. These payments, which Defendant funneled through Chestnut Consulting Group (his company), were intended to obtain EBRD business and favorable EBRD treatment for two of Defendant's Russian clients: Irkustsk Oil and Gas Company and Vostok Energy.
On October 16, 2015, Defendant filed the instant Motion to Suppress. (Doc. No. 38.) On December 10, 2015, I held a suppression hearing at which the Government called FBI Agent Michael DiCaprio and Immigration and Customs Enforcement Agent Peter Angelino. ( The Government also introduced photographs and a drawing of the secondary inspection area at JFK Airport. (Gov. Exs. 1-4.) Defendant called his wife, Sophia Moskalenko, and Customs and Border Protection Officer Hermanio Segui. (Tr. at 95-101 (Moskalenko), 102-107 (Segui).) He also introduced photographs of the secondary inspection area, cell phone records, and related exhibits. (Def. Exs. 1-8.) The Parties stipulated to the testimony of Port Authority Detective Shawn Russell. (Tr. at 107:13-108:11; Def. Ex. 9.) Both sides have submitted Proposed Findings of Fact and Conclusions of Law, and Responses. (Doc. Nos. 75, 76, 95, 96.)
On March 1, 2016, Defendant filed a second Suppression Motion, which I denied after an evidentiary hearing on March 21, 2016. During that hearing, I announced that I would deny the instant Motion and issue findings and conclusions. See Fed. R. Crim. P. 12(d)
.
I credit the testimony of Agents DiCaprio and Angelino, that of Officer Segui, and the stipulated testimony of Detective Russell. I partially credit the testimony of Defendant's wife. I find that the Government has proven the following facts by a preponderance of the evidence.
On February 26, 2010, Defendant—a lawful permanent resident (i.e., a “green card” holder)—returned to the United States from a ten-day business trip to London, Baku, and Moscow. (Doc. No. 38 at 3; FBI-302, Def. Ex. 2; Tr. at 10.) After his flight landed in Kennedy Airport at approximately 5:28 p.m., Defendant proceeded to primary customs inspection. (Tr. at 10:6-15, 92:18-21; Def. Ex. 7.) The previous day, the FBI's Philadelphia Field Office had learned that Defendant—whom that Office suspected of participating in an EBRD bribery scheme—would be arriving at JFK on the 26th. (Tr. at 8-9, 29, 44-45.) The FBI had also learned that Ryjenko and Sanderson had been arrested by the City of London Police for participating in the EBRD scheme. (Id. at 72:10-15; FBI-302 at 5.) Agent DiCaprio was assigned to interview Defendant when he arrived at JFK, and to serve him with three grand jury subpoenas. (Tr. at 45:3-8, 47:12-16; FBI-302 at 6.) DiCaprio was stationed at Kennedy Airport and had no knowledge of the EBRD investigation. (Id. at 8:11-19, 25:1-12.) Rather, he was a member of the FBI's Joint Terrorism Task Force. (Id. at 8:20-9:3.)
DiCaprio had previously interviewed some fifty to one hundred travelers “transiting in and out of JFK.” (Id. at 8:16-9:9.) When Defendant arrived at the Airport's primary inspection area, CBP officers escorted him (without any physical restraint) to a large waiting room in the secondary inspection area—a “large open area with seating around the perimeter.” (Id. at 10:16-25, 11:7-12:21; Gov. Ex. 1; Def. Ex. 4.)
At 6:07 p.m., while Defendant waited, Agent DiCaprio received an email from the Philadelphia Office with a list of questions to ask Defendant. (Def. Ex. 1.) The questions were organized under the following headings: “Immigration,” “Chestnut Consulting,” “Property,” “Travel,” “Overseas Financing Projects,” “Search Media Devices,” and “Arrest.” (Id.)
Defendant waited briefly in the secondary inspection area, when CBP officers called his name and escorted him (again, without physical restraint) to an interview room. (Id. at 12:23-13:9.) Defendant sent a text message to his wife at 6:20 p.m., just before the interview began. (Id. at 99:16-20; Def. Ex. 8.) The secondary inspection area has three “small,” “constricted” rooms, where interviews are customarily conducted. (Tr. at 13:13-20.) Agent DiCaprio chose a larger “open space” “office area” for Defendant's interview. (Id. at 13:13-14:9.) The area measured approximately 12 by 12 feet, with a large, window-like opening allowing occupants to see into the “high-traffic” hallway and those in the hallway to see inside. (Id. at 18:18-19:1, 20:10-15; Gov. Exs. 2-4; Def. Ex. 4.) DiCaprio accurately described the area as “not very private.” (Tr. at 20:15; id. at 22:18 (“It's a busy airport.”).) An ordinary office space with chairs, a desk, and a copy machine, the area was not equipped with a handcuff bar or any other means of restraint. (Tr. at 20:2-4.)
Four officers were present: Agents DiCaprio and Angelino, Officer Segui, and Detective Russell. (Id. at 20:17-20; FBI-302 at 1.) DiCaprio, Angelino, and Russell were in plainclothes and did not display their weapons. (Id. at 21:11-23.) Officer Segui was in uniform with a visible, holstered firearm, but did not participate in the interview. (Id. at 21:24-22:17.) Agents DiCaprio and Angelino sat across from Defendant at the desk in the middle of the room, while Detective Russell stood leaning on the nearby countertop of the large, window-like opening. (Id. at 20:24-21:9.) Defendant, who was not restrained, sat closest to the door, which remained open throughout. (Id. at 20:5-7, 21:6-9, 23:24-24:2, 27:23-28:9.) Although Officer Segui was positioned by the door, he was likely “in and out” of the room, addressing other matters. (Id. at 21:8-9, 22:12-23.)
At the outset, the Agents made it apparent that Defendant was not obligated to speak with them. The Agents identified themselves, told Defendant that they had a few questions for him, and asked “if he would take the time to speak with us.” (Id. at 23:9-14.) Agent Angelino credibly testified that Defendant could have refused to answer questions. (Id. at 81:19-21.) Defendant was cooperative and agreed to participate in this “gentlemen's interview,” which was “very friendly” and “cordial.” (Id. at 23:9, 24:5-19.) Defendant was “very cooperative, friendly.” (Id. at 24:18.) Food, water, and restroom facilities were available, had Defendant requested them. (Id. at 25:18-22.) The Agents did not know if Defendant had violated any laws. (Id. at 25:1-5.) The Agents did not tell Defendant that he was under arrest. (Id. at 23:21-23.) Defendant phoned his wife and spoke with her during the interview. (Id. at 84:9-17, 85:11-18, 99:23-100:12.) Had Defendant told the Agents he did not want to answer any more questions, the Agents would have ended the interview and escorted him out of the secondary inspection area. (See id. at 63:1-7; 81:19-21.)
The Agents credibly explained that they did not inform Defendant of his Miranda
rights because they did not believe Defendant was in custody. Agent DiCaprio testified as follows: (Id. at 51:16-19.) Agent Angelino testified similarly. (Id. at 81:10 (“[I]t's not a custodial interview.”).)
The interview took some two hours, which is the “average” length of such interviews. (Id. at 26:1-6.) Agent DiCaprio asked almost all the questions; Agent Angelino “might have asked one or two.” (Id. at 24:13-15.) The Agents spoke in normal tones of voice. (Id. at 24:3-25, 42:3-6, 69:21-23.)
Although the Philadelphia FBI Office had suggested that Agent DiCaprio ask Defendant almost one hundred questions, it is apparent that he did not do so, and did not address each of seven subject headings I have set out. DiCaprio's report (“FBI Form 302”) confirms that his interview of Defendant was far more abbreviated than that proposed by the Philadelphia Office. DiCaprio—who knew nothing about the underlying EBRD investigation—apparently received the email with the proposed questions on...
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