United States v. Morris
| Decision Date | 23 July 2021 |
| Docket Number | 5:21-cr-014-DCR-MAS-1 |
| Parties | UNITED STATES of America, Plaintiff, v. Randolph A. MORRIS, Defendant. |
| Court | U.S. District Court — Eastern District of Kentucky |
William P. Moynahan, AUSA, Andrea Mattingly Williams, AUSA, Assistant U.S. Attorneys, U.S. Attorney's Office, Lexington, KY, for Plaintiff.
REPORT & RECOMMENDATION
Before the Court is Defendant Randolph A. Morris's ("Morris") omnibus motion seeking: (1) suppression of various statements allegedly made to law enforcement agents on September 12, 2018; (2) dismissal of Counts 1 through 3 of the Indictment due to numerous claimed legal deficiencies; and (3) disclosure of grand jury minutes detailing the information reviewed by the grand jury prior to his indictment. [DE 20].1 Having thoroughly considered the evidence of record and the parties’ arguments, the Court recommends denial of the motion in full.
The Indictment alleges that Morris engaged in a scheme to defraud the Kentucky Department of Revenue by failing to report income earned as a professional basketball player for the Beijing Ducks ("Ducks") in the Chinese Basketball Association ("CBA") during the years 2015 through 2017. [DE 1]. During his tenure with the Ducks from 2010 through 2018, Morris earned more than $13 million in salary and bonuses. However, despite establishing Kentucky residency in December 2010, the Government alleges that Morris omitted his Ducks income from 2015, 2016, and 2017 Kentucky tax returns (KY Form 740) submitted via H&R Block's online tax preparation platform. Because the returns were transmitted interstate from an H&R Block server in Lenexa, Kansas to a Kentucky Department of Revenue server in Frankfort, Kentucky, the United States charges Morris with three violations of the wire fraud statute, 18 U.S.C. § 1343, for the 2015-17 years. [DE 1, Counts 1-3].
The Government also charges Morris with eight counts of making materially false statements on federal tax documents, in violation of 26 U.S.C. § 7206(1). [Counts 4-11]. Morris declared under penalty of perjury that his federal returns (IRS Forms 1040 and 1040A) for the years 2011 through 2018 were true and correct. However, per the Indictment, Morris's returns for those years reported no earned foreign income despite Morris's substantial income with the Ducks.
The focus of the suppression motion concerns an interview of Morris conducted by Special Agent Jeff Laber ("SA Laber") with the IRS, Criminal Investigations Division as well as IRS Special Agent Gordon Amegboh ("SA Amegboh") that occurred on September 12, 2018. During an evidentiary hearing held in response to the motions, SA Laber detailed the meeting. [DE 27 (Minutes); DE 30 (Tr.) at 3–4].
On the morning of September 12, SA Laber and SA Amegboh traveled to Morris's Lexington, Kentucky residence to speak with him, but found that no one was home. [Id. at 6]. SA Laber and SA Amegboh placed a business card on the front door and left, travelling to a nearby restaurant or coffee shop to attempt to call Morris's cellphone. [Id. ].
Shortly after leaving a voicemail for Morris on his cellphone, SA Laber received a text message from Morris stating that he was out of the country for the next three or four months trying out for a basketball team. [Id. at 8]. SA Laber responded to the text with his email address, suggesting that he and Morris exchange email addresses and communicate that way. [Id. ]. Morris immediately sent SA Laber an email and, as SA Laber was preparing to respond to that email, Morris called SA Laber's cellphone. [Id. ]. When SA Laber answered the call, Morris stated that his wife, Andrea Morris ("Mrs. Morris"), had advised Morris that the agents wanted to speak with him. Morris suggested that they return to his residence where Morris could call his wife via an audio/video application (such as Zoom, Duo, or FaceTime) and speak to the agents. [Id. at 8–9]. SA Laber asked Morris to check with his wife before the agents returned to the residence, and SA Laber and Morris then ended their call. [Id. at 9]. Soon after, Morris texted SA Laber advising, "Yes, this will work." [Id. ]. SA Laber then told Morris that he would be at the residence in roughly thirty minutes, at about 11:30 a.m. [Id. ].
Upon arriving at Morris's residence at the agreed time, the agents identified themselves to Mrs. Morris, displayed their credentials, and were invited into the home. [Id. at 10]. The trio exchanged casual pleasantries as they walked from the entryway to the kitchen area. [Id. ]. With Mrs. Morris standing on one side of the kitchen island and the agents on the other, she called Morris and propped the phone up facing the agents. [Id. ]. SA Laber testified that he was able to clearly see and hear Morris on the video call, and there was no delay or lag. [Id. at 11].
It is undisputed that neither agent read Morris his Miranda2 rights. SA Laber described the interview of Morris that followed as "business-like" and "cordial," and he testified that Morris gave appropriate and detailed answers. [Id. at 14]. While Mrs. Morris voluntarily remained in the kitchen during the bulk of the interview, her freedom of movement was in no way restrained and she was not asked or forced to remain in the area. [Id. ]. Morris never requested that questioning cease and that there were no threats, displays of weapons, or raised voices during the entirety of the video call.
About halfway through the video call, the connection cut out and the video froze. [Id. at 15-17]. All parties realized the connection had dropped at that time, and the interview momentarily paused. After Morris exchanged messages with his wife, Mrs. Morris confirmed she could not re-establish the video connection. Consequently, she suggested the parties could use the audio-only version of the application. [Id. ]. The agents agreed to continue with only audio, and SA Laber testified that the remainder of the phone call was clear, and all parties could hear one another and communicate effectively. Toward the end of the call, when SA Laber perceived that Morris was having difficulty clearly remembering some details, SA Laber advised that Morris did not have to answer any question if he did not want to or did not know the answer to it. But if Morris did provide an answer, it had to be a truthful response as a false statement could constitute a crime. [Id. at 13].
In total, the interview lasted approximately eighty minutes, and the agents left Morris's residence following its conclusion. [Id. at 17].
Morris maintains that any statements he made during the September 12, 2018 interview must be suppressed because (1) they were taken in violation of Miranda ; (2) they were involuntary; and (3) they are unreliable. The Court addresses each argument below.
The Fifth Amendment precludes an individual from being "compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. To help safeguard this right, the Supreme Court enacted the familiar prophylactic rule outlined in Miranda : "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." 384 U.S. at 444, 86 S.Ct. 1602. The Miranda rule applies only to custodial interrogations—i.e. , "questioning by a law enforcement officer after a person has been taken into custody or otherwise deprived of his freedom of action in a significant way." Maranian v. Jackson , 14 F. App'x 310, 313 (6th Cir. 2001). In this case, the Government does not dispute that Morris was subject to interrogation. The central issue, rather, is whether Morris was "in custody" for Miranda purposes at the time of the questioning. Based on the totality of circumstances present, the Court concludes that Morris was not in custody on September 12.
United States v. Hinojosa , 606 F.3d 875, 883 (6th Cir. 2010).
To start, Morris was not in the same building—or even the same country or continent—as SA Laber and SA Amegboh. Though courts have, in some instances, found the circumstances surrounding a telephone interview so restrictive that the situation became custodial, no such restrictive circumstances were present here. Morris primarily relies upon United States v. Adoni-Pena , No. 1:09-CR-28, 2009 WL 3568488, at *1 (D. Vt. Oct. 23, 2009), and United States v. Arango-Chairez , 875 F. Supp. 609, 612 (D. Neb. 1994), aff'd , 66 F.3d 330 (8th Cir. 1995), to establish that telephone questioning may rise to the level of a custodial interrogation in some instances. But the circumstances of those cases are readily distinguishable. In Adoni-Pena , the defendant had been transported to a police station and placed in an interview room there prior...
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