Opinion
Criminal No. 02-127 ADM/AJB
October 28, 2002
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Defendant Thomas James Martin's ("Martin") Objections [Docket No. 143] to the September 16, 2002, Report and Recommendation ("RR") of Magistrate Judge Arthur J. Boylan [Docket No. 134], Defendant Joseph Paul Biernat's ("Biernat") Objections [Docket No. 147] to the September 16, 2002, RR [Docket No. 135], and Biernat's Appeal [Docket No. 146] from Judge Boylan's September 16, 2002, Order [Docket No. 133]. For the reasons set forth below, the RR is adopted as explained herein, and the Order is affirmed. The factual background for this matter is adequately set forth in the RR and is incorporated by reference for the purposes of Defendants' present objections and appeal.
II. DISCUSSION A. Objections to the RR
A district court shall make an independent, de novo evaluation of those portions of the RR to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.1(c)(2).
Biernat objects to the RR's conclusions on (1) the suppression of Biernat's March 7 and 8, 2002, oral and written statements, (2) severance and joinder, (3) the constitutionality of the Hobbs Act Count, and (4) the lack of impairment to Biernat's right to a fair trial. Martin objects to the portions of the RR relating to (1) severance, (2) suppression of statements obtained via civil subpoena, and (3) Count I, arguing no interstate commerce nexus exists, and Count V, arguing Martin's alleged aiding and abetting conduct does not trigger a taking of "property" within the meaning of the mail fraud counts and 18 U.S.C. § 1341 1346.
1. Suppression
Whether or not a defendant was in custody during questioning is determined on the totality of the circumstances. United States v. Axsom, 289 F.3d 496, 500 (8th Cir. 2002). "Custody occurs when a suspect is deprived of his freedom of action in any significant manner." Id. at 500 (citing United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990); Miranda v. Arizona, 384 U.S. 436, 444 (1966)). A court must consider the presence and extent of physical and psychological restraints upon the subject's liberty during questioning to determine whether a reasonable person in the subject's situation would have understood his situation to be one of custody. Axsom, 289 F.3d at 500 (citing Griffin, 922 F.2d at 1347). Thus, if a defendant reasonably believed, from an objective viewpoint, that his freedom was restrained to a "degree associated with formal arrest," then he was held in custody during interrogation. Id.
The six common indicia of custody are:
(1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning.
Id. (citing Griffin, 922 F.2d at 1349). The first three are mitigating factors, the latter three are aggravating factors. Id. at 500-01.
a. March 7, 2002, Statements of Biernat
Upon careful review, the evidence of record establishes that all six factors support the finding that Biernat's statements were not made under circumstances of custodial interrogation. Biernat was informed at least four times that his participation was voluntary. Biernat voluntarily assented to the meeting, and participated in determining where the meeting was to take place. He was cognizant that he was not under arrest and free to leave at all relevant times. While sitting in the public cafeteria of the Hennepin County Medical Center, Biernat's freedom was unrestricted beyond the ordinary confines of being seated at a table in a public cafeteria. No strong arm tactics were used to force Biernat to participate in the meeting. No promises, threats, or physical violence of any form occurred during any part of the meeting. While there were two police officers at this meeting with the Defendant, the evidence does not support the contention that the questioning in the cafeteria was in an atmosphere "dominated" by the police. Biernat was not arrested at the end of the meeting. The statement Biernat signed stated clearly that "I acknowledge that no one has threatened, coerced or promised me anything," and the signatory "with full knowledge and consent, voluntarily make[s] the following statement." Govt. Ex. 3. After FBI Special Agent Sean Boylan wrote Biernat's statements in cursive long-hand, Biernat read and edited the statement, making substantive changes, and then signed the document and initialed each page. The editing in Biernat's own hand is strong probative evidence of the "knowing" element of his disclosures, but also undermines his current position that his statements were coerced and not voluntarily made. United States v. Griffin, 922 F.2d 1343, 1351 (8th Cir. 1990).
The additional facts argued by Biernat about circumstances surrounding the March 7, 2002, meeting do not overcome the evidence of voluntariness on a totality of the circumstances examination. A reasonable person in Biernat's situation on March 7, 2002, would not have understood his or her freedom to be restrained to a degree consonant with a formal arrest. Accordingly, Miranda warnings were not required, and Biernat's statements, both oral and written, will not be suppressed.
b. March 8, 2002, Statements of Biernat
Similarly, the circumstances of Biernat's meeting with law enforcement officials on March 8, 2002, do not rise to the level of custodial interrogation. This meeting, which included Sheila Biernat, Defendant's wife, occurred in the living room of Biernat's residence. At no time was Biernat under arrest, or threatened with arrest. On this occasion Biernat's participation in the meeting was also voluntary and willing. Biernat was again informed that the meeting was voluntary and that he was not required to speak to the agents. Biernat's wife Sheila inquired as to whether or not a lawyer should be present, but at no time did she or Biernat indicate they were represented by counsel in this matter, nor was any request for the assistance of counsel made. At the end of the meeting Agent Boylan prepared a second handwritten statement, substantially similar to the one signed by Biernat on March 7, 2002, which Biernat also read and signed. Govt. Ex. 4. Consistent with his practice on the preceding day, Biernat read the statement with sufficient care to suggest word and phrase changes which he then initialed. This statement also stated clearly that "I acknowledge that no one has threatened, coerced or promised me anything," and that he was proceeding with full knowledge and consent to voluntarily make the statement. Id.
Biernat was free to leave his living room and residence, or ask the agent to leave. Biernat was not coerced at any time, and Biernat did not make any representation that he was represented by an attorney or that he had an attorney-client relationship with anyone in relationship to this case. As was the case on March 7, 2002, Biernat was not physically or psychologically coerced into speaking with the agents, or making any oral or written statements on March 8, 2002.
All of the mitigating and aggravating Griffin factors support the finding that Biernat's March 8, 2002, statements were not made under circumstances of custodial interrogation. Again, the additional facts noted by Biernat pertaining to the March 8, 2002, meeting are insufficient to overcome the weight of the factors against suppression on a totality of the circumstances examination. A reasonable person in Biernat's situation on March 8, 2002, would not have understood his or her freedom to be restrained to a degree consonant with a formal arrest. Accordingly, Miranda warnings were not required, and Biernat's statements, both oral and written, will not be suppressed.
c. Martin's Statements Obtained Via Civil Subpoena
Martin argues that United States v. LaSalle Bank, 437 U.S. 298 (1978), and Garrity v. State of New Jersey, 385 U.S. 495 (1967), preclude admission of his statements obtained via civil subpoena by prohibiting use of civil process as a means for gathering evidence in a criminal investigation. In LaSalle Bank, the exercise of IRS civil authority after referral of a taxpayer's case to the Justice Department for criminal prosecution was prohibited. Id. at 298-99. Section 7602 of the Internal Revenue Code of 1954 permits use of a summons "[f]or the purpose of ascertaining the correctness of any return, . . . determining the liability of any person for any internal revenue tax . . ., or collecting any such liability." Id. at 298. To enforce a summons under § 7602, "the primary requirement is that it be issued before the IRS recommends to the Department of Justice the initiation of a criminal prosecution relating to the subject matter of the summons." Id. Here, Department of Labor subpoenas were used to procure evidence against Martin. No such restriction applies to Department of Labor subpoenas under 29 U.S.C. § 521, and they are therefore not limited to non-criminal matters. See Securities and Exchange Commission v. Dresser Indus., Inc., 628 F.2d 1368, 1379 (D.C. Cir. 1980) (holding that SEC "retain[s] full powers of investigation and civil enforcement" even after the commencement of a criminal investigation).
In Garrity, the defendant police officers were forced to choose between self-incrimination and job forfeiture. Garrity, 385 U.S. at 496. Such coercion vitiated their confessions. Id. Here, Martin was only required to produce records in his capacity as a union officer; no choice between self-incrimination and job forfeiture entailed. Garrity is inapposite to this case; neither LaSalle Bank nor Garrity require the suppression of Martin's statements obtained via civil subpoena. Martin has identified no other basis for suppression of the evidence obtained in the course of the Department of Labor civil investigation. These statements will not be suppressed.
2. Severance
The RR correctly determines that the parties were properly joined and severance has not been required to date. However, in consideration of the admissibility of Biernat's March 7 and 8, 2002, statements, the impact of those statements in light of Bruton v. United States, 391 U.S. 123 (1968), must be examined. In Bruton, the Supreme Court held that a non-testifying co-defendant's out-of-court statement that he and the defendant committed a crime violates the defendant's right under the Confrontation Clause of the Sixth Amendment to confront the witnesses against him. Bruton, 391 U.S. at 126. In the context of a joint trial, limiting instructions are not an adequate substitute for a defendant's constitutional right of cross-examination. Id. at 137; Cruz v. New York, 481 U.S. 186, 193 (1987).
If the non-testifying defendant's confession is capable of being redacted to eliminate any indication that the defendant existed, such a statement loses its prejudicial impact. Richardson v. Marsh, 481 U.S. 200, 209 (1987). To avoid violation of the Confrontation Clause, a statement must be "redacted to eliminate not only the defendant's name, but any reference to his or her existence." Id. at 211. "[T]here is no violation where the confession implicates the defendant only when linked to other evidence." U.S. v. Logan, 210 F.3d 820, 822 (8th Cir. 2000), cert. denied, 531 U.S. 1053 (2000) (citations omitted). Where a redacted statement leaves "no indication whatever that there had been a redaction," no link to the defendant remains. Id. at 823. Redactions replacing the defendant's name with "another individual," or words like "we," "they," and "someone" are permissible. See Logan, 210 F.3d at 821; United States v. Edwards, 159 F.2d 1117, 1125-26 (8th Cir. 1998). However, where a redacted statement has obviously been redacted, it "point[s] a finger directly at the defendant" even without mentioning his or her name. Id. "[R]edactions that replace a proper name with an obvious blank, the word `delete,' a symbol, or similarly notify the jury that a name has been deleted are similar enough to Bruton's unredacted confessions as to warrant the same legal results." Gray v. Maryland, 523 U.S. 185, 195 (1998).
The operative question here is whether or not the statements of Biernat and Martin can be redacted to delete the non-confessing Defendants' names such that the redaction does not "notify the jury" that the Defendants' names have been deleted. Careful scrutiny of the relevant statements makes clear that they cannot be adequately redacted to sufficiently protect Biernat and Martin's right to confrontation. Accordingly, Bruton requires that this case be severed and each Defendant tried separately.
3. Constitutionality of the Hobbs Act
Biernat argues the Government did not plead a sufficiently substantial connection to interstate commerce for the Hobbs Act claims against him to be constitutional. United States v. Lopez, 514 U.S. 549, 559 (1995) (holding that regulation under the Commerce Clause requires that "the regulated activity `substantially affects' interstate commerce").
A district court is not to consider the sufficiency of the Government's evidence concerning the relationship to interstate commerce in the context of a Rule 12(b) motion to dismiss. United States v. Voss, 787 F.2d 393, 397-98 (8th Cir. 1986), cert. denied, 479 U.S. 888 (1986); accord United State v. Nukida, 8 F.3d 665, 672 (9th Cir. 1993); see also, United States v. Smith, 794 F.2d 1333, 1336 (8th Cir. 1986), cert. denied, 479 U.S. 938 (1986). While only a de minimus impact on interstate commerce is required to prove a Hobbs Act violation, the quantum of impact determination is inappropriate for resolution on a pretrial motion to dismiss. Nukida, 8 F.3d at 672 (citing United States v. Pascucci, 943 F.2d 1032, 1035 (9th Cir. 1991)). Biernat's objection on this ground is denied.
4. Fair Trial Issues
Biernat argues his constitutional right to a fair trial is threatened by excessive publicity and the pretrial publication in the media of his March 7 and 8, 2002, statements. Biernat also argues that because the prosecutor inadvertently provided the documents to a journalist during the course of a hearing, dismissal of the indictment is appropriate. No evidence suggests that the disclosure was intentional, therefore no prosecutorial misconduct occurred requiring dismissal of charges or suppression of evidence. United States v. Wadlington, 233 F.3d 1067, 1077 (8th Cir. 2000). Moreover, the issue of suppression regarding these statements has now been decided, and in light of the admissibility of the statements, the danger of taint to the potential jury pool is lessened. Biernat's constitutional right to a fair trial has not been adversely affected.
5. Martin's Objections Regarding Counts I and V
To the extent the Court understands Martin's Objection to Judge Boylan's ruling regarding the nexus with interstate commerce, this issue has been addressed above in response to Biernat's objection to the constitutionality of the Hobbs Act. The analysis given by Judge Boylan in the RR sufficiently addresses Martin's argument that the alleged aiding and abetting conduct does not trigger a taking of "property" within the meaning of the mail fraud counts and 18 U.S.C. § 1341 1346, and Martin has added no argument to support his objection to this recommendation. Martin's Objections regarding Counts I and V are denied.
B. Appeal from the Order
In ruling on an appeal from a non-dispositive matter decided by a magistrate judge, a district court must affirm an order by a magistrate judge unless it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2). This standard of review is extremely deferential. See Reko v. Creative Promotions, Inc., 70 F. Supp.2d 1005, 1007 (D.Minn. 1999); Banbury v. Omnitron Int'l, Inc., 818 F. Supp. 276, 279 (D.Minn. 1993). "A finding is `clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Chakales v. Comm'r of Internal Revenue, 79 F.3d 726, 728 (8th Cir. 1996) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
Biernat appeals from the portions of Judge Boylan's Order of September 16, 2002, which address discovery and Brady evidence, ¶ 1, Jencks Act material, ¶ 5, severance and Bruton issues, ¶¶ 8, 12 and 13, Biernat's request for disclosure of the Government's witness list, ¶ 10, and a potential juror questionnaire, ¶ 11.
1. Discovery and Brady Evidence
Paragraphs 1 and 4 of Judge Boylan's Order concern Brady evidence and disclosure of statements of defendants, physical evidence, criminal history evidence, an itemized list of computerized evidence, and medical and scientific evidence. Judge Boylan ordered that the Government disclose evidence as required by Rule 16 and all exculpatory evidence as required under Brady v. Maryland, 373 U.S. 83 (1963). The Government was not ordered to disclose statements of co-defendants or to create itemized lists of computerized evidence. Biernat argues that not all Brady materials have been disclosed, but no argument is presented by Biernat as to why Judge Boylan's ruling is clearly erroneous or contrary to law. Paragraphs 1 and 4 of Judge Boylan's Order are affirmed.
2. Jencks Act Material
Judge Boylan denied Biernat's motion to require disclosure of Jencks Act materials two weeks prior to trial. Paragraph 5 of the Order states that the Government may not be compelled to disclose Jencks material prior to presentation of witness testimony at trial. Biernat asserts that this Court has the authority to order early disclosure, and that such an order is in the interest of judicial economy. Biernat appears to recite the same factors considered by Judge Boylan, and offers no authority that Judge Boylan's order is contrary to law, or clearly erroneous. Paragraph 5 is affirmed.
3. Severance and Bruton issues
This appeal concerns Judge Boylan's orders regarding the disclosure of statements of co-defendants, improper joinder, and severance. Each of these issues has been analyzed in response to the Defendants' Objections to the RR above.
4. Request for Disclosure of Witness List
Biernat appeals Judge Boylan's denial of his motion for disclosure of the Government's witness list, to the extent it is inconsistent with a July 17, 2002, letter from the Court stating that: "All voir dire jury instructions, witness and exhibit lists, and any motions in limine shall be filed and served on or before September 30, 2002." The July 17, 2002, letter pertains to all materials required to be submitted. "Criminal defendants . . . have no right in noncapital cases to disclosure of the names of government witnesses under Rule 16(a)." Arcoren v. United States, 929 F.2d 1235, 1242 (8th Cir. 1991), cert. denied, 502 U.S. 913 (1991). Paragraph 10 of Judge Boylan's Order is not contrary to law and is affirmed.
5. Juror Questionnaire
Biernat appeals the order reserving Biernat's right to request pretrial written juror questionnaires, asking the Court to grant the Defendants' Joint Motion for mailing of written questionnaire to the panel returnable a week before trial. This Court will use a juror questionnaire of its own design. No questionnaires will be mailed to potential jurors before trial.
III. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Martin's Objections [Docket No. 143] regarding severance are DENIED,
2. Martin's Objections [Docket No. 143] regarding suppression of statements obtained via civil subpoena are DENIED,
3. Martin's Objections [Docket No. 143] regarding Count I, arguing no interstate commerce nexus exists, and Count V, arguing Martin's alleged aiding and abetting conduct does not trigger a taking of property, are DENIED,
4. Biernat's Objections [Docket No. 147] regarding the suppression of his March 7, 2002, statements are DENIED,
5. Biernat's Objections [Docket No. 147] regarding the suppression of his March 8, 2002, statements are DENIED,
6. Biernat's Objections [Docket No. 147] regarding severance and joinder are DENIED,
7. Biernat's Objections [Docket No. 147] regarding the constitutionality of the Hobbs Act Count are DENIED,
8. Biernat's Objections [Docket No. 147] regarding the lack of impairment to his right to a fair trial are DENIED,
9. Biernat's Appeal [Docket No. 146] to ¶ 1 of Judge Boylan's September 16, 2002, Order, addressing discovery and Brady evidence, is DENIED,
10. Biernat's Appeal [Docket No. 146] to ¶ 5 of Judge Boylan's September 16, 2002, Order, addressing Jencks Act material, is DENIED,
11. Biernat's Appeal [Docket No. 146] to ¶¶ 8, 12 and 13 of Judge Boylan's September 16, 2002, Order, regarding severance and Bruton issues, is DENIED,
12. Biernat's Appeal [Docket No. 146] to ¶ 10 of Judge Boylan's September 16, 2002, Order, regarding Biernat's request for disclosure of the Government's witness list, is DENIED,
13. Biernat's Appeal [Docket No. 146] to ¶ 11 of Judge Boylan's September 16, 2002, Order, regarding a potential juror questionnaire, is GRANTED in part,
14. Judge Boylan's September 16, 2002, RR [Docket Nos. 134 135] is ADOPTED IN PART,
15. Judge Boylan's September 16, 2002, Order [Docket No. 133] is AFFIRMED, 16. Martin's Motion to Suppress Statements, Admissions and Answers [Docket No. 48] is DENIED,
17. Martin's Motion to Dismiss Count I [Docket No. 49] is DENIED,
18. Martin's Motion to Dismiss Count V [Docket No. 50] is DENIED,
19. Martin's Motion for Change of Venue [Docket No. 126] is DENIED,
20. Martin's Motion for Severance [Docket No. 127] on Bruton grounds is GRANTED,
21. Biernat's Motion for Relief from Improper Joinder of Counts 9, 10, 11, 12, 13, 14, and 15 [Docket No. 64] of the Second Superseding Indictment is MOOT,
22. Biernat's Motion to Order Severance of Defendants for Trial [Docket No. 65] on improper joinder grounds is DENIED,
23. Biernat's Motion to Suppress Statements, Admissions and Answers [Docket No. 67] is DENIED,
24. Biernat's Motion to Dismiss Counts I and II for Unconstitutionality as Applied and for Lack of Jurisdiction [Docket No. 68] is DENIED,
25. Biernat's Motion to Dismiss Counts I and II for Unconstitutionality as Applied and for Lack of Federal Jurisdiction [Docket No. 69] is DENIED,
26. Biernat's Motion to Dismiss Count I for Legal Impossibility [Docket No. 71] is DENIED,
27. Biernat's Motion for Relief from Fair Trial Injuries [Docket No. 121] is DENIED,
28. The case against co-Defendants Martin and Biernat is SEVERED for trial. The case of United States of America v. Joseph Paul Biernat will be tried first, commencing on November 4, 2002. The trial date for the case of United States of America v. Thomas James Martin will be set upon the conclusion of the Biernat trial.