United States v. Okon
| Decision Date | 09 September 2022 |
| Docket Number | 19-CR-492 (MKB) |
| Parties | UNITED STATES OF AMERICA, v. EMMANUEL ASUQUO OKON, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
On October 24, 2019, a grand jury returned an indictment against Defendants Quincy Thorpe and Emmanuel Asuquo Okon, charging them with conspiracy to steal cargo in violation of 18 U.S.C §§ 659, 371, and 3551 et seq. (“Count One”), and stealing cargo in violation of 18 U.S.C. §§ 659, 2, and 3551 et seq. (“Count Two”). (Indictment ¶¶ 1-3 Docket Entry No. 7.) The Indictment alleges that Okon and Thorpe, together with others, conspired to steal, and stole a bag “containing United States and foreign currency of approximately $258,205.” (Id.)
On March 17, 2021, Okon moved pursuant to the Fourth Amendment of the U.S. Constitution to suppress the fruits of a search conducted on September 29, 2019, of a blue Nissan Sentra belonging to Okon's domestic partner, Sergeant Ayanna Giddens.[1] Okon also seeks the immediate production of all exculpatory and impeachment material. (Id.) The Government opposes the motion.[2] For the reasons set forth below, the Court denies Okon's motion.
The Indictment charges that, on or about September 24, 2019, Okon and others intentionally and unlawfully “[took] and carried away” from John F. Kennedy (“JFK”) International Airport “a stolen bag containing United States and foreign currency of approximately $258,205 in value, which . . . constituted an interstate shipment of freight, express and other property, with intent to convert said goods and chattels to their own use.” (Indictment ¶ 3.) Okon is charged in Count One of the Indictment with conspiracy to steal cargo, and in Count Two of the Indictment with stealing cargo. (See Id. ¶¶ 1-3.) The Indictment alleges that Okon drove “the car containing the stolen bag and its contents away from JFK Airport.” (Id. ¶ 2(d)). Security surveillance showed that the vehicle was “a blue Nissan Sentra,” and a witness identified the Nissan Sentra driver as Okon. (Gov't Opp'n 3.) Okon's domestic partner, Sergeant Giddens, owned a blue Nissan Sentra. (Aff. of Sergeant Giddens (“Giddens Aff.”) ¶ 4, annexed to Def.'s Mot., Docket Entry No. 38.)
Sergeant Giddens was a New York City Police Department (“NYPD”) officer with twenty-six years of experience. (Tr. of Criminal Cause for Suppression Hearing dated Dec. 9, 2021 (“Tr.”), at 126:13-15, Docket Entry No. 50.) On September 24, 2019, the date of the alleged theft of funds, Sergeant Giddens was not in the United States. (Giddens Aff. ¶ 5.) Upon her return on September 29, 2019, at JFK Airport, Federal Bureau of Investigations (“FBI”) Special Agents Robert Carasiti and Regina Lau introduced themselves and asked to speak to her about a cargo theft at the airport. (Tr. 127:13-17, 148:7-14.) The FBI agents advised Sergeant Giddens that they knew she was out of the country at the time of the incident and that she was not a suspect. (Tr. 148:21-25.) Special Agent Carasiti explained that Sergeant Giddens was not being detained and was free to go and asked whether she would voluntarily answer some questions. (Decl. of Special Agent Carasiti (“Carasiti Decl.”) ¶ 7, annexed to Gov't Opp'n, Docket Entry No. 40-2.) Sergeant Giddens was cooperative and agreed to speak to the agents.
(Id.; Giddens Aff. ¶ 11 ().) In response to a question by Special Agent Carasiti about the location of her blue Nissan Sentra, Sergeant Giddens answered that because she had been out of the country, she did not know, (Carasiti Decl. ¶ 9), but she was aware of the theft that the agents were investigating, (id. ¶ 8). Sergeant Giddens' demeanor during the interview was casual, and she agreed that the FBI agents could contact her in the future for any further questions. (Id. ¶¶ 10-11.)
After the FBI agents left the room, two officers from the NYPD Internal Affairs Bureau (“IAB”), Lieutenant Mobeen Yasin and Sergeant Konsantin Klebenov, met Sergeant Giddens to place her on modified duty.[3] (Tr. 132:8-10; Decl. of Lieutenant Yasin (“Yasin Decl.”) ¶¶ 1, 5, 11, annexed to Gov't Opp'n, Docket Entry No. 40-1.) Sergeant Giddens then left JFK with the IAB officers to drop off her luggage and retrieve her firearms from her home. (Tr. 133:8-18.) Lieutenant Yasin stated that the IAB agents asked Sergeant Giddens to retrieve the firearms with them and that “she did so willingly.” (Yasin Decl. ¶ 12.) Sergeant Giddens stated that she was not free to leave the custody of the IAB agents and that the IAB agents never told her she was free to leave. (Tr. 134:12-17.)
That same night, FBI agents found Sergeant Giddens' blue Nissan Sentra parked on a public street in Queens, New York. (Carasiti Decl. ¶ 13.) The vehicle was locked with no passengers inside. (Id.) The FBI agents confirmed that it was Sergeant Giddens' vehicle and, “[t]hrough the windows,” Special Agent Carasiti “saw a gallon bottle of water on top of a manila envelope.” (Id.) Special Agent Carasiti called Lieutenant Yasin and spoke with Sergeant Giddens.[4] (Carasiti Decl. ¶ 14; Yasin Decl. ¶ 13; Tr. 135:23-136:7.) Special Agent Carasiti explained to Sergeant Giddens that the FBI had found her Nissan Sentra and asked for her consent to search the car. (Tr. 136:10-20; Yasin Decl. ¶ 14; Carasiti Decl. ¶ 14.) Special Agent Carasiti testified that Sergeant Giddens said, “well, you're only going to impound the car if I say ‘no,' so ‘yes.'” (Yasin Decl. ¶ 14; Carasiti Decl. ¶ 14.) After Sergeant Giddens provided consent, she agreed to search for her car keys and provide them to the FBI. (Tr. 136:16-20, 159:12-18, 161:17-19.)
Sergeant Giddens stated in her affidavit that because she felt her job, livelihood, and youngest child's future was at stake, she felt that she “had no choice but to give them the keys and consent to the search.” (Giddens Aff. ¶ 14.) Sergeant Giddens did not express to the agents that she thought she could be suspended or fired if she declined to provide consent. (Tr. 161:1116.)
After Sergeant Giddens' conversation with Special Agent Carasiti, the IAB officers drove Sergeant Giddens back to her home, but Sergeant Giddens was unable to locate the car keys. (Tr. 137:18-22, 163:19-22.) When Special Agent Carasiti called a second time, Sergeant Giddens told Special Agent Carasiti that she could not find her car keys. (Carasiti Decl. ¶ 16; Tr. 163:19-164:5.) Special Agent Carasiti then told Sergeant Giddens that Emergency Services Unit (“ESU”) was on site and that the FBI “could have the car opened and would try not to damage it, as long as she still consented,” and again asked for her consent to search the car. (Carasiti Decl. ¶ 16; Tr. 138:5-7, 164:2-5, 164:13-165:3.) Special Agent Carasiti testified that Sergeant Giddens agreed and stated that she did not want to lose use of the car. (Carasiti Decl. ¶ 16.) At no time did any FBI agent or IAB officer inform Sergeant Giddens that she was not free to leave. (Yasin Decl. ¶ 16.) Sergeant Giddens stated that the FBI informed her that “if [she] didn't consent to them breaking into the vehicle without the keys they would seize [her] car,” and she felt that she “had no choice but to do what they wanted” because her job, livelihood, and youngest child's future were at stake. (Giddens Aff. ¶¶ 16, 18.) Special Agent Carasiti denied threatening Sergeant Giddens with “any negative repercussions to her whatsoever should she have chosen not . . . to consent to a search of her car,” (Carasiti Decl. ¶ 17), and Lieutenant Yasin did not recall hearing Special Agent Carasiti making such a threat, (Yasin Decl. ¶ 15).
That evening, the FBI gained access to the blue Nissan Sentra and a search of the vehicle yielded a manila envelope on the floor of the car, which contained a Delta Airlines Cargo Air Waybill for Delta Flight 1226 and receipts from Loomis International, the security company from which the cargo was stolen. (Carasiti Decl. ¶ 19.)
“On a motion to suppress, the defendant bears the initial burden of establishing that a government official acting without a warrant subjected him to a search or seizure,” United States v. Davis, 111 F.Supp.3d 323, 331 (E.D.N.Y. 2015) (quoting United States v. Herron, 18 F.Supp.3d 214, 221 (E.D.N.Y. 2014)), and that the defendant “had a reasonable expectation of privacy in the place or object searched,” United States v. Delva, 858 F.3d 135, 148 (2d Cir. 2017). Once the defendant has shown a basis for his motion, the burden shifts to the government to demonstrate that the search or seizure did not violate the Fourth Amendment. Id. (collecting cases); see also United States v. Chandler, 164 F.Supp.3d 368, 376 (E.D.N.Y. 2016) .
Okon argues that fruits of the search of Sergeant Giddens' vehicle should be suppressed because Sergeant Giddens' consent was not voluntary. (Def.'s Mem. 6-7; Def.'s Post-Hearing Letter Brief (“Def.'s Letter”), Docket Entry No. 51.) In support, Okon contends that Sergeant Giddens was not advised that she could refuse to consent and that consent was obtained upon the threat to her employment. (Def.'s Mem. 7; Def.'s Letter.)
The Government argues that Sergeant Giddens voluntarily consented to the search. (Gov't Opp'n 10; Gov't Post-Hearing Letter Brief (“Gov't Letter”) 4 Docket Entry No. 49;...
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