Opinion
Criminal No. 01-162 (JRT/FLN)
January 21, 2003
Mark D. Larsen and Michelle E. Jones, Assistant United States Attorneys, Minneapolis, MN, for plaintiff.
Gary R. Bryant-Wolf, LAW OFFICE, Minneapolis, MN, for defendant Agboola.
Leon A. Trawick, TRAWICK SMITH, P.A., Minneapolis, MN, for defendant Aihe.
ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Defendant Olusoji Michael Agboola ("Agboola") was indicted by a grand jury on April 13, 2000, for bankruptcy fraud and other charges in Criminal File No. 00-100. Agboola's brother-in-law, defendant Michael Ediale Aihe ("Aihe"), was indicted on April 30, 2001 for obstruction of justice in Criminal File No. 01-124. Both defendants were indicted on June 13, 2001 for conspiracy in relation to an alleged real estate "flipping" scheme in Criminal File No. 01-162. This Court consolidated the three cases on October 31, 2001. Both defendants made pretrial motions to suppress evidence and statements. Magistrate Judge Franklin L. Noel issued a report and recommendation dated January 30, 2002.
Agboola's pre-trial motions in Criminal File Nos. 01-100 [Docket No. 101] and 01-162 [Docket Nos. 32, 35, 37 and 92] are duplicative and seek to suppress the same evidence. The Court therefore addresses the duplicative motions together. Similarly, Aihe's pre-trial motions in Criminal File Nos. 01-124 [Docket Nos. 42 43] and 01-162 [Docket Nos. 79 and 80] are duplicative and seek to suppress the same evidence, and the Court considers them together.
The Magistrate Judge recommended that Agboola's motion to suppress evidence and statements be denied, and that Aihe's motion to suppress statements, admissions, and answers be granted in part and denied in part. Agboola objected to the recommendation that his motion to suppress be denied. The government objected to that portion of the report and recommendation involving the suppression of statements made by Aihe on March 20, 2001. Aihe does not object to the report and recommendation. The Court has conducted a de novo review of the government's and Agboola's objections pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the January 30, 2002 Report and Recommendation of the Magistrate Judge.
Background
Prior orders of this Court, and of the Magistrate Judge, have discussed the background facts surrounding this case. Therefore only the facts pertinent to resolving the instant matter will be set out. The following facts were recited by the Magistrate Judge in his Report and Recommendation dated January 30, 2002, and are based on the testimony of several law enforcement agents.
On September 16, 1999, two law enforcement officers went to Agboola's business to serve him with a grand jury subpoena in the bankruptcy fraud case. The agents approached Agboola to identify him, and Agboola admitted to the officers that his aliases included "Soji", "Michael", and "Olusoji." The agents then served the subpoena, and told him about the execution of a search warrant at his home. Agboola was not in custody, and the officers did not display any force. The officers told Agboola he was not required to go to his home, but that if he did choose to return to his home, the agents would follow him. Agboola initially indicated he would return home, but then chose to remain at his business.
Sometime in January, law enforcement officers received information that led them to believe Agboola had left Minnesota in an attempt to evade arrest. As part of the subsequent investigation, agents went to Aihe's home, and informed Aihe's wife, Morenike Aihe, of the arrest warrant for her brother, Agboola. A few days later, agents served defendant Aihe with a grand jury subpoena in the bankruptcy fraud case, and informed him of the arrest warrant for his brother-in-law, Agboola. Agboola was subsequently indicted in the bankruptcy fraud case.
In March, law enforcement officers had reason to believe Agboola could be found at a Lake Mary, Florida address. On March 14, 2001, law enforcement agents in Orlando, Florida went to that Lake Mary, Florida address. When the agents arrived, they found that Aihe occupied the residence. With his consent, agents searched the residence. The agents also briefly interviewed Aihe, and he informed them that Agboola had been to his house to visit Ms. Aihe. Aihe also informed agents that Agboola was currently living near Atlanta, Georgia. Aihe told agents that he would contact them if he obtained any information about Agboola's whereabouts.
On March 20, 2001, law enforcement agents arranged an apparent "set up" to arrest Agboola at First American Title Insurance ("First American") in Lake Mary, Florida. First American had arranged with Agboola to sign documents involved in a sham real estate transaction. Agents Havill and Petricka, who work with the IRS Criminal Investigation Division, were involved in the arrest. Havill waited in a surveillance vehicle in the parking lot of the title company, while Petricka posed as an employee inside the office.
As Havill was parked in his surveillance vehicle, he noticed a green minivan circle the parking lot, and then park in front of the title company. Havill observed Aihe exit the green minivan and enter the title company office. After a few minutes, Aihe exited the title company office, and waited by the front door to the office. Havill then observed Agboola exit the minivan and walk toward the title company. Aihe and Agboola then entered the title company office together.
Aihe then exited the title company alone, and walked toward the minivan. Havill received a radio communication that he should stop Aihe. Havill exited his vehicle, approached Aihe, displayed his badge, and told Aihe to stop. Havill told Aihe that he needed to talk to him. Havill ordered Aihe to place the keys to the green minivan on the ground. Havill completed a "pat-down" search for weapons. About the time Havill completed the pat down, several Lake Mary offices arrived in two marked police cars. Law enforcement officers also came out of the title company and joined Havill in the parking lot. A Lake Mary officer asked for permission to search the minivan, and Aihe acquiesced. The search of the minivan revealed a maroon briefcase. Aihe was asked if he was the owner of the case, he replied that he was not, but that it belonged to Agboola. Aihe was also asked how Agboola arrived at the title company. Aihe replied that he did not know. Agent Havill took the briefcase into the title company.
Meanwhile, Agboola was inside the title company completing the sham real estate transaction. Agents arrested Agboola after he signed the real estate papers, and while he was being handcuffed, he made spontaneous and incriminating statements. Agents then gave Agboola his Miranda warning. Agents showed Agboola the maroon briefcase, which he acknowledged belonged to him and he consented to a search of it. However, before the agents searched the briefcase, Agboola withdrew his consent and asked to speak with an attorney.
Agboola was transported to the local police station for processing and identification. During the processing and identification, Agboola made incriminating statements regarding the validity of the information on his Florida identification card. Several weeks after the interaction at the title company, Aihe was charged by complaint with obstruction of justice. When Aihe was arrested, he made an incriminating statement, despite having received the Miranda warning.
ANALYSIS I. Agboola's Motion to Suppress Statements and Evidence
Agboola objects to the Magistrate Judge's determination that all evidence seized and statements made are admissible. The Magistrate Judge found that Agboola was not in custody on September 16, 1999, for purposes of application of the Miranda rule. Miranda v. Arizona, 384 U.S. 436, 466-68 (1966), and as a result, the statements made on September 16, 1999 were admissible. The Magistrate Judge also recommended that statements Agboola made during the March 20, 2001 arrest were admissible. The Magistrate Judge determined that statements Agboola made before receiving the Miranda warning were not the product of interrogation, and that although Agboola was not accorded his rights under the Vienna Convention, his statements made after receiving the Miranda warning need not be suppressed.
A. Suppression of Agboola's September 16, 1999 Statements
The Court finds that Agboola's September 16 statements were not made in violation of his rights under Miranda, 384 U.S. at 466-68. A suspect is "in custody" for purposes of Miranda when that person is arrested, or when the suspect is "deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444; United States v. Johnson, 64 F.3d 1120, 1125 (8th Cir. 1995). To determine if a suspect who has not been arrested is nonetheless in custody, a court must consider whether a reasonable person in the suspect's position would have understood the situation to be one of custody. Berkemer v. McCarty, 468 U.S. 420, 442 (1984); Johnson, 64 F.3d at 1125. A court must make this objective determination by looking at the totality of the circumstances. United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990).
An examination of the circumstances surrounding the September 16 interaction between Agboola and law enforcement officers reveals that Agboola was not in custody. Agboola was simply identified by the officers, served with a subpoena and informed about the search of his home. The agents did not arrest Agboola at the close of the brief interaction, and although they told him they would follow him if he chose to return to his home, it is clear he was free to return to his residence. At no time did the agents indicate that Agboola's freedom of movement was restrained. Further, although two law enforcement officers were present, the interaction occurred at Agboola's place of business, and cannot be described as "police dominated." See Griffin, 922 F.2d at 1349 (atmosphere dominated by police supports finding of custody). In sum, the interaction was not "custodial" for purposes of application of the Miranda rule, and Agboola's motion to suppress statements made on September 16, 1999 is denied.
B. Suppression of the March 20, 2001 Statements
In contrast to the September 16 statements, Agboola was clearly in custody after he was arrested on March 20, 2001. The analysis, therefore, turns to whether his pre-Miranda statements were made in response to interrogation, and to whether his post-Miranda statements should be suppressed either because they were made in violation of his rights under the Vienna Convention, or because they were involuntary.
1. Suppression of Statements made before Agboola was given the Miranda Warning
Agboola made incriminating statements immediately after he was arrested, but before he was given the Miranda warning. Spontaneous or volunteered statements are not the result of interrogation, and therefore do not violate a suspects Miranda rights. See Rhode Island v. Innis, 446 U.S. 291, 299-300 (1980); Griffin, 922 F.2d at 1356-57. The record reveals that Agboola's statements were made spontaneously, and were not in response to any form of interrogation. See United States v. Gonzalez, 875 F.2d 875, 881 (D.C. Cir. 1989) (statements made simultaneous to arrest not a result of interrogation). Therefore, the Court denies Agboola's motion to suppress the statements made at the time of arrest.
2. Suppression of Statements made after Agboola was given the Miranda Warning a. Suppression under the Vienna Convention
Agboola complains that his rights under the Vienna convention were violated because the officers did not inform him of his right to speak with a consulate from his home country prior to making his statements.
The Vienna Convention provides that government authorities should inform those arrested in a foreign country of the right to communicate with their home country's consulate. See Vienna Convention on Consular Relations, art. 36, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, 1969 WL 97928. The Vienna Convention came into force in the United States on December 24, 1969, see 21 U.S.T. 77, and the requirement to advise foreign nationals of their right to speak to a member of their consulate is codified in Department of Justice Regulations at 28 C.F.R. § 50.5.
As this Court recently noted, however, it is not clear that the Vienna Treaty creates rights that are privately enforceable in federal courts. See United States v. Rumbo Rosendiz Manzanares-Valle, Crim. No. 01-186 JRT/FLN, Order (D.Minn., Nov. 26, 2001). Further, even if the Treaty does create privately enforceable rights, every circuit to address the question has determined that suppression is not the appropriate remedy for violations of Article 36. See United States v. Minjares-Alvarez, 264 F.3d 980, 986 (10th Cir. 2001); United States v. Jimenez-Nava, 243 F.3d 192, 198-200 (5th Cir. 2001); United States v. Page, 232 F.3d 536, 540 (6th Cir. 2000); United States v. Chaparro-Alcantara, 226 F.3d 616, 621-22 (7th Cir. 2000); United States v. Cordoba-Mosquera, 212 F.3d 1194, 1196 (11th Cir. 2000); United States v. Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir. 2000) (en banc); United States v. Li, 206 F.3d 56, 60 (1st Cir. 2000) (en banc). The Court discussed at length the rationale for this holding in United States v. Rumbo Rosendiz Manzanares-Valle, Crim. No. 01-186 JRT/FLN, Order (D.Minn., Nov. 26, 2001). In that order, the Court concluded that the purpose and history of both the exclusionary rule and the Convention support the determination that the exclusionary rule is an inappropriate remedy for a violation of Article 36. In sum, the Court reasoned that the Vienna Convention does not purport to create rights on par with those guaranteed in the Fourth, Fifth, or Sixth Amendments to the United States Constitution. Id.
Finally, Agboola has not shown that he was prejudiced by the failure to advise him of his rights under the Convention. Agboola has not demonstrated that he has contacted the Nigerian consulate, and he does not suggest that he would not have made the statements had he contacted the consulate. Therefore, even if suppression was an appropriate remedy in certain cases, the suppression of Agboola's statements is unwarranted. See United States v. Miranda, 65 F. Supp.2d 1002, 1006-07 (D.Minn. 1999) (holding defendant not entitled to suppression of evidence to remedy an Article 36 violation because he did not demonstrate prejudice).
b. Alternate grounds for suppression
The Magistrate Judge also considered whether Agboola's statements should be suppressed for reasons other than Article 36 of the Vienna Convention. The Magistrate Judge determined that the statements are admissible because they were made after proper Miranda warnings were given, and they were otherwise voluntary.
"A statement is involuntary when it was extracted by threats, violence, or express or implied promises sufficient to overbear the defendant's will and critically impair his capacity for self-determination." Simmons v. Bowersox, 235 F.3d 1124, 1132 (8th Cir. 2001); see also Hutto v. Ross, 429 U.S. 28, 30 (1976). In applying this test, the Court looks at the totality of the circumstances surrounding the interrogation. Simmons, 235 F.3d at 1132.
In this case, Agboola has put forth no evidence or argument that his statements were coerced or the result of any inappropriate government action. See Colorado v. Connelly, 479 U.S. 157, 167 (1986). The fact that Agboola effectively withdrew his consent to search his briefcase undermines any argument that Agboola was unable to resist government pressure. Therefore, the Court finds that Agboola's statements were voluntary and his motion to suppress is denied.
c. Suppression of statements made during the booking process
Finally, Agboola argues that statements made during the booking process were obtained in violation of his Miranda rights and therefore must be suppressed. Suppression for violation of Miranda rights requires a finding both of custody and interrogation. Rhode Island v. Innis, 446 U.S. 291 (1980). The Supreme Court has defined "interrogation" as "questioning initiated by law enforcement officers." Miranda, 384 U.S. at 444. That questioning can be either express or by "any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response." Innis, 446 U.S. at 300-01. Routine booking questions, such as those asked to Agboola in this matter, do not fall within that definition. See United States v. Brown, 101 F.3d 1272, 1279 (8th Cir. 1996). "A request for routine information necessary for basic identification purposes is not interrogation under Miranda, even if the information turns out to be incriminating." United States v. McLaughlin, 777 F.2d 388, 391-92 (8th Cir. 1985).
The Court finds that the routine identification questions asked of Agboola during the booking process do not amount to interrogation. Therefore, Agboola's motion to suppress the statements is denied.
C. Suppression of Evidence Seized on March 20, 2001
Agboola also objects to the Magistrate Judge's recommendation that his motion to suppress evidence be denied. He argues that law enforcement officials did not have probable cause to issue the search warrant for his briefcase.
"Probable cause exists when a practical, common-sense evaluation of the facts and circumstances shows a fair probability that contraband or other evidence will be found in the asserted location." United States v. Adams, 110 F.3d 31, 33 (8th Cir. 1997) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). The affidavit supporting the search warrant reflected the history of the case, and the charges against Agboola. The affidavit also reflected Agboola's admission to ownership of the briefcase at the time of the arrest, and the agent's belief that most individuals involved in similar criminal activities need immediate access to documents and tools used in furtherance of their schemes.
The affidavit contained more than enough information to show that a fair probability of contraband or other evidence would be found in the briefcase. Agboola's motion to suppress evidence seized is denied.
II. Aihe's Motion to Suppress Statements
The government objects to the portion of the Magistrate Judge's Report and Recommendation that determined that Aihe's statements made outside the First American Title office on March 20, 2001, be suppressed. The government does not object to the determination that the statements were obtained in violation of Aihe's Miranda rights and are therefore inadmissible in its case-in-chief. Rather, the government complains that the Magistrate Judge did not determine whether the Miranda-tainted statements were "involuntary" and thus inadmissible for impeachment purposes.
Statements made by a defendant in circumstances violating the strictures of Miranda, are nonetheless "admissible for impeachment if their `trustworthiness . . . satisfies legal standards.'" See Mincey v. Arizona, 437 U.S. 385, 397-98 (1978) (quoting Harris v. New York, 401 U.S. 222, 224 (1971)). However, any use in a criminal trial of a defendant's involuntary statements amounts to a denial of due process. Id. The Court examines the totality of the circumstances to determine if a statement was voluntary. Houston v. A.L. Lockhart, 866 F.2d 264, 266 (8th Cir. 1989). "Factors to be considered in evaluating the totality of the circumstances [include] the characteristics of the accused and the details of the interrogation." Id. (quoting Hall v. Wolff, 539 F.2d 1146, 1150-51 (8th Cir. 1976). Government action that overbears the free will of the interrogated, and that deprives him of his free will results in involuntary statements that cannot be admitted at trial for any reason. See Haynes v. Washington, 373 U.S. 503, 513-15 (1963); see also United States v. Astello, 241 F.3d 965, 967 (8th Cir. 2001), (quoting United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995) ("The appropriate test for determining the voluntariness of a confession is whether the confession was extracted by threats, violence, or direct or implied promises, such that the defendant's will was overborne and his capacity for self-determination critically impaired.")), cert. denied, 533 U.S. 962 (2001).
Although the Court finds that Aihe's statements made outside the title company probably were voluntary in this case, and therefore would be admissible for impeachment purposes, the Court reserves ruling on this objection until the Court has the opportunity to hear further argument. However, the Court finds that the issue of voluntariness was not before the Magistrate Judge. Neither party objects to the recommendation that the statements are Miranda-tainted and therefore the report and recommendation is adopted.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES the objections of defendant Agboola [Crim. File No. 01-162, Docket No. 104], OVERRULES the government's objections [Crim. File No. 01-162, Docket No. 103]. and ADOPTS the Magistrate Judge's Report and Recommendation [Crim. File No. 01-162, Docket No. 101]. Accordingly, IT IS HEREBY ORDERED that:
1. Defendant Agboola's Motion to Dismiss Evidence Seized and Statements Made [Crim. File No. 01-100, Docket No. 101; Criminal File No. 01-162, Docket No. 92] is DENIED;
2. Defendant Agboola's Motion to Suppress All Evidence Obtained in Search and Seizure [Crim. File No. 01-162, Docket Nos. 32, 35, 37] is DENIED;
3. Defendant Aihe's Motion to Suppress Statements, Admissions, and Answers [Crim. File No. 01-124, Docket No. 42; Crim. File No. 01-162, Docket No. 79] is GRANTED in part and DENIED in part as follows:
a. The motion is GRANTED insofar as the motion seeks to suppress statements made when he was stopped outside First American Title's Office on March 20, 2001;
b. In all other respects, the motion is DENIED;
4. Defendant Aihe's Motion to Suppress Evidence Obtained as a Result of Search and Seizure [Crim. File No. 01-124, Docket No. 43; Crim. File No. 01-162, Docket No. 80] is DENIED.
IT IS HEREBY FURTHER ORDERED that the Clerk of Court file a copy of this Order in Criminal Case File Nos. 01-101 and 01-124.