Opinion
04-CR-30A(F).
March 17, 2005
SAKHWAT ULLAH, JR., Pro Se, Buffalo Federal Detention Facility, Batavia, New York.
MICHAEL A. BATTLE, United States Attorney, Attorney for Government, ALLISON P. GIOIA, Assistant United States Attorney, of Counsel, Buffalo, New York.
REPORT and RECOMMENDATION DECISION and ORDER
JURISDICTION
This case was referred to the undersigned by Honorable Richard J. Arcara, on February 23, 2004, for pretrial matters including preparation of a report and recommendation on dispositive motions. The matter is presently before the court on Defendant's motions to dismiss the Indictment filed October 7, 2004 (Doc. No. 28), to dismiss the Indictment and to suppress evidence (Doc. No. 29), filed October 15, 2004, for discovery (Doc. No. 34), filed November 15, 2004, seeking in limine relief (Doc. No. 35) and for an evidentiary hearing (Doc. No. 36), filed November 19, 2004, to dismiss the Superseding Indictment (Doc. No. 37), filed November 22, 2004, and for the return of seized properties (Doc. No. 54), filed February 1, 2005.
Although Defendant seeks both dispositive and nondispositive relief in the seven motions pending before the court, the court addresses all issues in this combined Report and Recommendation and Decision and Order to facilitate consideration of the numerous issues presented.
BACKGROUND and FACTS
The Fact statement is taken from the charging documents and motion papers filed in this action.
When Agent Scarpino's interview of Ullah was completed at 10:30 P.M., it was determined that Ullah was not a "bona fide" visitor, and officers of the United States Bureau of Customs and Border Protection began routine processing for refusal of admission into the United States. Criminal Complaint ¶ 6. Ullah expressed a desire to voluntarily abandon his attempt to enter the United States and to return to Canada. Criminal Complaint ¶ 6. During the processing for refusal of entry, however, Ullah's fingerprints were captured using the automated IDENT and IAFIS systems and, when compared to fingerprints previously captured and retained in immigration and criminal databases, revealed a match with fingerprints belonging to Bangladesh citizen named Sakhwat Ullah, born on July 27, 1960. Id. ¶ 6. A check of another immigration database revealed Alien File No. A28776740 ("A-file"), which indicated that Ullah had been deported from the United States to Bangladesh on January 4, 2000. Id. ¶¶ 6-7. Customs and Border Protection Officers contacted the Law Enforcement Support Center in Vermont, the office responsible for Ullah's alien file, and copies of the documents relevant to Ullah's removal in 2000 were sent by facsimile and received by the Customs and Border Protection Officers in Niagara Falls at 11:50 P.M. Id.
A review of the documents by the border officers established that Ullah's previous removal had been properly executed and that Ullah had been warned of the penalties for attempting to reenter the United States without obtaining the requisite authority of the United States Attorney General. Id. ¶ 7. The specific reasons given for Ullah's removal included violating Immigration and Nationality Act ("INA") §§ 212(a)(6)(A)(i) and 212(a)(2)(A)(I). Warrant of Removal/Deportation, Exhibit A to Criminal Complaint. The prior deportation was based on Ullah's December 7, 1998 conviction on two counts of wilfully misrepresenting himself to be a United States citizen, in violation of 18 U.S.C. § 911, and one count of making a false statement to an agent of the Immigration and Naturalization Service, in violation of 18 U.S.C. § 1001. Affidavit of Assistant United States Attorney Allison P. Gioia (Doc. No. 44) ¶¶ 68-69 and Exhs. 33 and 34.
INA § 212(a)(6)(A)(i), codified at 8 U.S.C. § 1182(a)(6)(A)(i), provides that an alien who is present in the United States without having submitted to inspection by a border agent or who enters "the United States at any time or place other than as designated by the Attorney General, is inadmissible." INS § 212(a)(2)(A)(I), codified at 8 U.S.C. § 1182(a)(2)(A)(I), provides that any alien convicted of a crime involving moral turpitude is also inadmissible.
Specifically, Ullah was convicted on January 25, 1991, for violating 18 U.S.C. § 911 (making a false statement in the application and use of a United States passport), and 18 U.S.C. § 1542 (wilfully and knowingly using or attempting to use a passport secured by reason of a false statement). Gioia Affidavit ¶¶ 64-65, and Exhs. 28 and 29. Ullah's January 25, 1991 conviction was predicated on Ullah's execution on March 27, 1990 of a Delayed Registration of Birth Certificate ("the Delayed Birth Certificate"), which Ullah, on March 28, 1990, submitted to the State of California Department of Vital Statistics ("the California DVS"). Gioia Affidavit ¶ 63 and Exh. 27. In support of the Delayed Birth Certificate, Ullah submitted other documents that were later determined fraudulent, including a Voter's Registration Card issued by the Los Angeles County Registrar on March 5, 1984, a Social Security Card bearing number 559-87-2226 issued by the Social Security Administration in Sacramento, California on December 18, 1985, and an Affidavit of Birth made by Ullah's father, Mafzular Rahman. Gioia Affidavit ¶ 63 and Exh. 27. Although deportation proceedings were never commenced against Ullah based on the January 25, 1991 conviction, on June 17, 1998, the Immigration and Naturalization Service ("INS") advised the California DVS of Ullah's conviction. Gioia Affidavit ¶ 67. As a result, the California DVS sealed the Delayed Birth Certificate filed for Sakhwat Ullah, Jr. Gioia Affidavit ¶ 67 and Exh. 32. As Ullah had used the falsified California birth certificate to obtain other identification papers, including a United States passport, on May 26, 1998, Ullah was indicted by a federal grand jury in the Central District of California with two counts of wilfully representing him self to be a United States citizen in violation of 18 U.S.C. § 911, and one count of making a false statement to an INS agent, in violation of 18 U.S.C. § 1001. Gioia Affidavit ¶ 68 and Exh. 33. On December 7, 1998, Ullah was convicted on all three counts of the May 26, 1998 indictment. Gioia Affidavit ¶ 69 and Exh. 34.
Upon further review, Ullah's A-file did not contain any application for the requisite authority to reenter the United States. Id. ¶ 8. Ullah was then placed under arrest for attempting to reenter the United States after having been removed and without first obtaining the permission of the United States Attorney General, but was not advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1996) (" Miranda warning") until the next morning.
On December 23, 2003, at the initial appearance on the Criminal Complaint before the undersigned, Ullah expressed his desire to be represented by legal counsel and Assistant Federal Public Defender John F. Humann was appointed to represent Ullah. The Government moved to have Ullah detained pending trial based on a serious risk of flight. A detention hearing was originally scheduled for January 27, 2004, and was later adjourned to February 10, 2004.
Based on information proffered by the Government at the February 10, 2004 detention hearing, the undersigned, on February 11, 2004, ordered Ullah be committed to the custody of the United States Attorney General. The order was based on a finding of a serious risk that Ullah would not appear as Ullah was not a United States citizen but was an alien without any legal status in the United States, had no demonstrable ties to the United States and was subject to exclusion if released based on having previously been convicted of falsely using or claiming United States citizenship.
An indictment (" the original Indictment") (Doc. No. 7) charging Ullah with one count of violating § 1326 was returned on February 18, 2004. During his arraignment on the original Indictment on February 19, 2004, Ullah sought to reopen the detention proceedings, asserting that he had a birth certificate establishing Ullah was born in the United States, but that Mr. Humann refused to present it to the court. Arraignment T. at 9-17. According to Mr. Humann, he was reluctant to present the birth certificate to the court because he had not been able to establish its validity. Id. at 23-25. The fact of a conflict in legal strategy between Ullah and Mr. Humann was noted. Id. at 12-13.
References to "Arraignment T." are to the pages of the copy of the transcript of Ullah's February 19, 2004 arraignment before the undersigned, attached as Exhibit 5 to the Affidavit of Assistant United States Attorney Allison P. Gioia (Doc. No. 44).
On March 30, 2004, Mr. Humann filed a motion to withdraw as counsel (Doc. No. 14), citing irreconcilable differences with Ullah. The motion was granted on April 22, 2003, and the court appointed David R. Addelman, Esq. as Ullah's new counsel.
At a May 20, 2004 discovery status conference, the Government indicated it had produced many of the items Ullah requested, and that if defense counsel would reduce to writing any additional items sought, the Government would attempt to make such items available to the defense. The undersigned ordered the Government to respond to Ullah's discovery requests by June 11, 2004.
A scheduling order issued on May 24, 2004, established June 11, 2004 as the deadline for completing voluntary discovery and June 30, 2004 as the deadline for filing both dispositive and non-dispositive pretrial motions. On June 9, 2004, the Government responded to Ullah's discovery requests by indicating which requested items would be produced or made available upon Ullah's request. In an amended scheduling order issued on July 2, 2004, the pretrial motion filing deadline was extended to September 15, 2004.
On September 15, 2004, Mr. Addelman filed a motion seeking to withdraw as Ullah's appointed counsel, citing an inability to work with Ullah based on Ullah's desire to represent himself. A hearing on the motion and on Ullah's request to proceed pro se was conducted on October 5, 2004, at which the Government stated its intention to file a superseding indictment charging Ullah with unlawfully attempting to reenter the United States in violation of 8 U.S.C. § 1326(a), and making materially false statements and representations to United States immigration officers to gain entry into the United States, in violation of 18 U.S.C. § 1001(a)(2). After finding Ullah capable fo making an informed waiver of his Sixth Amendment right to counsel, the court granted Mr. Addelman's motion to withdraw, as well as Ullah's request to proceed pro se. During oral argument, the Government mentioned it had received a letter from Ullah dated September 27, 2004, requesting extensive discovery, and indicated its intention to treat the letter as an omnibus discovery motion. Ullah objected to the filing of the letter to avoid stopping the Speedy Trial Clock. As the letter was never filed, however, the Government advised it would not formally respond to the letter unless directed by the court. When asked by the court if he wanted the September 27, 2004 letter requesting discovery treated as a discovery motion, Ullah initially responded that he did; however, when the court explained that the speedy trial clock would not run while the motion was pending, Ullah objected to treating the letter as a motion.
Although Ullah, by letter to the court dated September 27, 2004, expressed his desire to proceed pro se, Ullah never filed a form al motion on the issue.
On October 7, 2004, Ullah filed a motion (Doc. No. 28) seeking severance and dismissal of the Indictment, attached to which is Ullah's "Declaration with Affirmation in Support of the Motions" ("Ullah Declaration Supporting Dismissal of the Indictment"). On October 15, 2004, Ullah filed another motion (Doc. No. 29) seeking to dismiss the Indictment and to suppress evidence, attached to which is Ullah's "Affidavit in Support of the Motion" ("Ullah Affidavit Supporting Dismissal and Suppression").
To date, Ullah has not explained his theory for severance. Accordingly, the court construes Ullah's denomination of the motion as seeking severance as a misnomer, especially given that when the motion was filed, Ullah was the sole defendant in the single-count Indictment.
In a superseding indictment ("Superseding Indictment") returned on October 20, 2004, Ullah was again charged with one count of violating 8 U.S.C. § 1326, and one new count of violating 18 U.S.C. § 1001(a)(2) (knowing and wilfully making material false statement and representation), relative to Ullah's attempt to enter the United States at the Rainbow Bridge on December 22, 2003. At his arraignment on the Superseding Indictment, conducted on October 21, 2004, Ullah stated he desired to continue representing himself and requested the Government provide two items of discovery, including Ullah's parents' alien files ("A-files"), and a transcript of the administrative proceedings held before the Immigration Judge ("IJ") in December 1999. The court then set several deadlines, including November 5, 2004 for completing voluntary discovery, November 22, 2004 for the Defendant to file additional motions, and December 20, 2004 for the Government to respond both to Ullah's pending motions and any new motions filed. Oral argument on the motions was schedule for December 23, 2004.
On November 15, 2004, Ullah filed a motion seeking discovery (Doc. No. 34), attached to which is a "Memorandum of Points and Authorities" explaining Ullah's asserted grounds for the requested discovery ("Discovery Memorandum"). On November 19, 2004, Ullah filed a motion in limine (Doc. No. 35), attached to which are "Arguments Memorandum of Points of Authorities of the Challenged Items and Materials in Motions In Limine" (" In Limine Memorandum"), and a motion for an evidentiary hearing (Doc. No. 36), attached to which is Ullah's "Affidavit in Support of the Motion" ("Ullah Affidavit Supporting Evidentiary Hearing"). On November 22, 2004, Ullah filed a motion to dismiss the Superseding Indictment (Doc. No. 37), attached to which is Ullah's "Affidavit in Support of the Motion" ("Ullah's Affidavit Supporting Dismissal of Superseding Indictment"). On November 29, 2004, Ullah filed a "Memorandum of Law Defendant's Arguments with Points of Authorities" (Doc. No. 39) ("Defendant's Memorandum"), in support of the four motions.
On December 20, 2004, the Government filed responses to Ullah's motions, including "Government's Response to Defendant's Notice of Motion/Request for Discovery Filed November 15, 2004" (Doc. No. 41) ("Government's Response to Discovery Motion"), "Government's Response to Defendant's Motion Filed on October 7, 2004 to Dismiss the Indictment and Motion Filed on November 22, 2004 to Dismiss the Superseding Indictment" (Doc. No. 42) ("Government's Response to Motions to Dismiss"), "Government's Response to Defendant's Motions In Limine Filed on November 19, 2004" (Doc. No. 43) ("Government's Response to In Limine Motion"), and "Government's Response to Defendant's Motion filed on October 15, 2004 and November 19, 2004" (Doc. No. 45) ("Government's Response to Defendant's Motions for Evidentiary Hearing, Suppression and Dismissal"). The Government also filed on December 20, 2004, the Affidavit of Assistant United States Attorney Allison P. Gioia (Doc. No. 44) ("Gioia Affidavit"), attached to which are Government Exhibits No. 1 through 42.
Oral argument on Ullah's motions was held before the undersigned on December 23, 2004, following which Ullah was given ten days to file supplemental papers in support of his motions, with the Government's response due ten days thereafter. Ullah's time to file supplemental papers was subsequently extended at his request to January 25, 2005. On January 27, 2005, Ullah filed an Affidavit (Doc. No. 53), in further support of his pending motions ("Ullah's Reply Affidavit"). On February 11, 2005, the Government filed the "Government's Response to Defendant's January 27, 2005 Affidavit" (Doc. No. 55) ("Government's Sur-Reply"), attached to which are Government's Sur-Reply Exhibits 1 through 3.
On February 1, 2005, Ullah filed "Defendant's Motion to Return the Unlawfully Seized Properties" (Doc. No. 54), supported by Ullah's attached Affidavit/Affirmation ("Ullah Affidavit Supporting Return of Seized Property"), and Defendant's Exhibits 1 through 3. On February 16, 2005, the Government filed "Government's Response to Defendant's 'Motion to Return the Unlawfully Seized Properties' Filed February 1, 2005" (Doc. No. 56) ("Government's Response to Defendant's Motion to Return Seized Property").
Based on the following, Defendant's motion to dismiss the Indictments (Doc. No. 28), should be DENIED; Ullah's motion to dismiss the Indictment and to suppress evidence (Doc. No. 29), should be DENIED in part and GRANTED in part; Ullah's motion for discovery (Doc. No. 34), is GRANTED in part, DENIED in part, and DISMISSED as moot in part; Ullah's motion seeking in limine relief (Doc. No. 35), is DENIED; Ullah's motion for an evidentiary hearing (Doc. No. 36), is DENIED; Ullah's motion to dismiss the Superseding Indictment (Doc. No. 37), should be DENIED, and Ullah's motion for the return of seized properties (Doc. No. 54), is DENIED.
DISCUSSION
1. DiscoveryUllah makes 21 separately enumerated requests for discovery from the Government, and also makes numerous assertions that the Government has repeatedly failed to respond to such requests or to provide the requested material. See e.g., Notice of Motion for Discovery at 2 ("The Government has failed to provide the requested discovery materials in due time"); Discovery Memorandum at 1 (asserting that the Government is "holding back" on providing much of the discovery requested by Ullah); Discovery Memorandum at 8 ("To this date the Government has not turned over any Brady [ sic] materials nor [has it] responded to the request made to them months ago where the defendant requested a prompt response from the Government.") The Government maintains that it has responded to each of Ullah's discovery requests made through Ullah's prior two appointed defense attorneys, as well as to Ullah in his present pro se status. Government's Response to Discovery Motion at 2-3. The Government further advises that with the exception of Ullah's motion for discovery presently before the court, the only other discovery request received directly from Ullah is the September 27, 2004 letter which Ullah refused to permit the court to file as a formal motion. Governement's Response to Discovery Motion at 3. While the Government acknowledges that it did not formally respond to Ullah's September 27, 2004 letter, the Government maintains that the present discovery motion seeks information identical to that Ullah requested in the September 27, 2004 letter, to which the Government fully responded, and that the Government has responded to all discovery requests made by Ullah's prior counsel. Id. at 4.
A. Defendant's Statements
Ullah seeks copies of any written or recorded statements he made, the substance of any statements the Government intends to offer into evidence at trial, as well as any statement summaries appearing in the "handwritten notes of any government agent." Discovery Memorandum at 3-4. The Government maintains that there were no written or recorded statements of Ullah regarding the crimes charged in the Superseding Indictment, that copies of any written reports of summaries prepared by Government agents regarding Ullah's oral statements have already been provided to Ullah, and that any handwritten notes made by Government agents will be preserved and produced in accordance with the Government's obligations under the Jencks Act, 18 U.S.C. § 3500 (" Jencks Act") Government's Response to Discovery Motion at 4. Ullah does not challenge the Government's response and, as such, Ullah's request is DISMISSED as to this issue as moot insofar as the Government has already provided Ullah with material responsive to such request.
B. Arrest Reports, Notes and Dispatch Tapes
Ullah requests the Government produce arrest reports, notes and dispatch tapes, including both notes taken by Government agents in connection with the investigation, as well as copies of any surveillance tapes of his primary and secondary inspection taken by surveillance cameras at the Rainbow Bridge on December 22, 2003, Discovery Motion at 4-5 (Request No. 2). The Government responds it has already produced any written reports or summaries prepared by Government agents in connection with this investigation, and advises it will instruct the Government agents to retain notes taken during the investigation so that such notes can be produced as necessary at trial in accordance with Jencks Act requirements, i.e., after the particular Government witness testifies on direct examination at trial. Government's Response to Discovery Motion at 5. As to Ullah's request for any surveillance tapes, the Government maintains no such tapes exist, and that the surveillance cameras Ullah observed while undergoing primary and secondary inspection at the Rainbow Bridge "are used exclusively to monitor the interview and not to record the events taking place." Government's Response to Discovery Motion at 6. As such, no tapes or recordings responsive to Ullah's request exist. Id. Ullah has not challenged the Government's response.
Accordingly, Ullah's request is DISMISSED as moot insofar as the Government has already provided Ullah with material responsive to such request and agreed to produce any handwritten notes as required under the Jencks Act. C. Jencks Act Material
Ullah makes requests for material whose disclosure is subject to the Jencks Act, such as Ullah's prior statements and witness testimony from all prior trials, including transcripts from the trial and all other proceedings related to Ullah's two prior convictions regarding his claim of United States citizenship, in Tucson, Arizona, and in Los Angeles, California. Discovery Motion at 13-14 (Request No. 20). According to Ullah, the requested transcripts are "essential to show the massive irregularities that took place during those trials and also to establish the facts in this case by the testimony given by the witnesses in those trials." Discovery Motion at 14. Ullah also makes a generic request for Jencks Act material, explaining that he seeks pretrial production of Jencks Act material so as to avoid unnecessary delays and recesses at trial to permit Ullah, who is proceeding pro se, to review such materials and properly prepare for cross examination. Discovery Motion at 12 (Request No. 16). The Government maintains that it does not intend to rely on any statements made in Ullah's prior legal proceedings for its case-in-chief, although the Government may attempt to utilize such statements as impeachment evidence, in which case the Government acknowledges its obligation to produce such statements in accordance with the Jencks Act. Government's Response to Discovery Motion at 21.
Pursuant to Fed.R. Crim . P. 16, any relevant prior statement of Ullah, whether oral, written or recorded, made in response to interrogation and which the Government intends to use at trial in the instant case must be disclosed to Ullah upon Ullah's request.
Of course, such "irregularities" are irrelevant to the issues presented in the Superseding Indictment.
The Jencks Act "permits disclosure of statements made by 'a witness called by the United States [who] has testified on direct examination.'" United States v. Jackson, 345 F.3d 59, 76 (2d Cir. 2001) (quoting 18 U.S.C. § 3500(b)) (bracketed text in original). The Jencks Act further "provides that 'no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness . . . shall be the subject of . . . discovery . . . until said witness has testified on direct examination in the trial of the case.'" Jackson, supra (quoting 18 U.S.C. § 3500(a)). See also Fed.R.Crim.P. 26.2(a) (providing for disclosure "[a]fter a witness . . . has testified on direct examination," of "any statement of the witness that is in [the government's] possession and that relates to the subject matter of the witness's testimony"). The Jencks Act thus "categorically concerns statements made by 'a witness . . . [who] has testified,' 18 U.S.C. § 3500(b), and it mandates disclosure only after 'said witness has testified on direct examination in the trial of the case,' 18 U.S.C. § 3500(a)." Jackson, supra.
As such, the Jencks Act does not mandate disclosure of statements made by any person who does not testify. Id. Further, the Second Circuit has specifically instructed that the District Court has no authority to require pretrial disclosure of Jencks Act material. United States v. Scotti, 47 F.3d 1237, 1249-50 (2d Cir. 1995) (denying pretrial production of Jencks Act material and citing United States v. Sebastian, 497 F.2d 1267, 1269-70 (2d Cir. 1974) (holding the court cannot compel pretrial production of Jencks Act material)).
In the instant case, Ullah's request for Jencks Act material is DISMISSED as moot insofar as the Government maintains that it does not intend to rely on any statements made in Ullah's prior immigration proceedings or criminal trials for its case-in-chief. Nevertheless, the Government is reminded of its obligation under the Jencks Act should the Government later decide to rely on such statements for its case in chief. The Government, nevertheless, is not required to disclose to Ullah at any time statements intended to impeach any Government witness unless such statements "rise to the level of materiality prescribed by [United States v.] Agurs[, 427 U.S. 97 (1976)] and [United States v.] Bagley[, 473 U.S. 667 (1985)] for mandated production." United States v. Coppa (In re United States), 267 F.3d 132, 145-46 nn. 10 12 (2d Cir. 2001).
D. Reports of Scientific Tests or Examinations
Ullah seeks discovery of any reports of scientific tests or examinations conducted with regard to the evidence in this case, including fingerprint analysis, photo analysis and handwriting analysis. Discovery Motion at 5-6 (request No. 3). The Government maintains that while it expects to present fingerprint evidence and analysis to the jury, no such evaluation or analysis has been conducted to date, but that as soon as such analysis is generated, it will be promptly produced to Ullah in accordance with Fed.R.Crim.P. Government's Response to Discovery Motion at 6-7. The Government further maintains that it has no present intention to rely on any photo or handwriting analysis, although should the Government later decide to use such evidence, it will disclose the evidence to Ullah as required. Id. at 7.
Ullah's request is GRANTED insofar as it seeks fingerprint evidence and analysis which the Government expects to introduce at trial. The request is, however, DISMISSED as moot insofar as Ullah requests material which the Government presently has no intention of using.
E. Defendant's Record
Ullah requests a copy of his criminal record which the Government intends to use at trial, as well as any immigration records, including school records, in Ullah's name or in names similar to Ullah's. Discovery Motion at 6-7 (Request No. 4). According to Ullah, such information is crucial to Ullah's preparation of his defense based on theories that because of irregularities in Ullah's prior removal proceedings, as well as in prior criminal proceedings pertaining to Ullah's prior criminal convictions, Ullah's prior deportation order was obtained in violation of his right to due process and, thus, unlawful. Id. The Government responds that all such records Ullah requests have already been made available to Ullah's prior counsel, who had Ullah's entire A-file copied, but, notwithstanding, a separate copy of Ullah's A-file, as well as a criminal history printout, were provided to Ullah on December 15, 2004. Government's Response to Discovery Motion at 7-8. Ullah has not challenged the Government's claims as to the production of such records. Accordingly, Ullah's request for copies of his criminal, immigration and school records is DISMISSED as moot.
While the constitutionality of the underlying deportation is open for the defense, irregularities or alleged wrongful prior conviction for unlawful reentry is not. See United States v. Paredes-Batista, 140 F.3d 367, 376 (2d Cir. 1998) (holding that 8 U.S.C. § 1326 does not, on its face, require that the earlier deportation have been 'lawful' to support a conviction for illegal reentry."); and United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987) ("a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of an alien to obtain judicial review.").
F. Exculpatory Material
Among the exculpatory evidence Ullah requests from the Government is material under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, including the immigration or "A-files" of Ullah's biological parents, Discovery Motion at 7-8 (Request No. 5), evidence of any Government witness's bias or motive to lie, Discovery Motion at 10 (Request No. 10), impeachment evidence, Discovery Motion at 11 (Request No. 11), any evidence, including any medical or psychiatric report or evaluation, demonstrating impairment to any prospective Government witness's ability to perceive, remember, communicate or tell the truth, or that any Government witness has ever had any substance abuse problem, Discovery Motion at 12 (Request No. 13), the identification of any witnesses favorable to Ullah, Discovery Motion at 12 (Request No. 14), any witness statements relevant to Ullah's defense, Discovery Motion at 12 (Request No. 15), and material pursuant to Giglio v. United States, 405 U.S. 150 (1972), Discovery Motion at 13 (Request No. 17). The Government acknowledges its affirmative and continuing duty to provide exculpatory evidence, including impeachment evidence, but maintains that Brady does not create a constitutional right to pretrial discovery of such material, nor does it require that the prosecution identify its witnesses prior to trial. Government's Response to Discovery Motion at 8, 16, 18-19.
Brady and its progeny require the prosecution provide the defense with any evidence favorable to the accused where the evidence is material to guilt or punishment. "Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness." Coppa, supra, at 139 (citing Giglio v. United States, 405 U.S. 150, 154 (1972) (holding the defense is entitled to pertinent evidence regarding a material witness's credibility or reliability, including evidence of any agreement or promises of leniency between the government and a government witness)). For example, the Government's failure to reveal evidence of an understanding in return for testimony will violate due process. United States v. Pfingst, 477 F.2d 177 (2d Cir. 1973); Feola, supra, at 1135.
There is, however, no absolute right to pretrial discovery of Brady material. Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Rather, the prosecution must disclose such evidence "in a timely matter to assure a fair trial," and should not postpone the disclosure of Brady material until it is too late for effective use at trial. Coppa, supra, at 144 ("there is no Brady violation unless there is a reasonable probability that earlier disclosure of the evidence would have produced a different result at trial.").
Although Brady does not authorize a general right of pretrial discovery and primarily seeks to avoid unfair trials resulting from suppression of exculpatory material, courts nonetheless have ordered pretrial disclosure of Brady material. United States v. Taylor, 707 F.Supp. 696, 703 (S.D.N.Y. 1989) (ordering disclosure of Brady materials one week prior to trial, except that impeachment materials pertaining to government witnesses should be disclosed the day before that witness will take the stand); United States v. Biaggi, 675 F.Supp. 790 (S.D.N.Y. 1987) (disclosure of Brady materials at the same time as disclosure of Jencks Act materials; Feola, supra, (disclosure thirty days prior to trial). The Second Circuit recently has observed that the timing of disclosure of material under Brady depends "upon the anticipated remedy for a violation of the obligation to disclose: the prosecutor must disclose 'material' . . . exculpatory and impeachment information no later than the point in which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made." Coppa, supra, at 142. Linking the scope of Brady's disclosure obligation to the remedy for its breach creates a burden for the prosecutor who must determine "the significance of the undisclosed evidence in light of the strength of all the evidence indicating guilt." Id. at 143. As such, "a prosecutor 'anxious about tacking too close to the wind will disclose a favorable piece of evidence.'" Id. at 143 (quoting Kyles v. Whitley, 514 U.S. 419, 439 (1995)).
Given that the Government has indicated its intention to disclose all Brady exculpatory and Giglio impeachment materials, the Government is reminded of its duty to timely provide such information at the risk of depriving Ullah of due process of law, requiring a reversal of any conviction obtained. Ullah's motion, insofar as it seeks disclosure of exculpatory and impeachment material under Brady and its progeny, is DISMISSED as moot.
G. Evidence Seized
Ullah requests the Government provide him with "[e]vidence seized because of any search," and challenges the admissibility of such evidence at trial as illegally seized. Discovery Motion at 8 (Request No. 6). Although Ullah has not specified the evidence that allegedly was seized from him, the Government construes Ullah's request as seeking copies of the documents he presented during primary and secondary inspection at the Rainbow Bridge in his attempt to gain entry to the United States, including Canadian Passport No. JL614873 and Canadian Citizenship Card No. A8685236, and the documents which Ullah claimed to be traveling to the United States to mail. Government's Response to Discovery Motion at 13. The Government maintains that it has already provided Ullah with copies of the documents, but asserts that Ullah's challenge to the admissibility of the documents at trial should be resolved at trial. Id. at 13-14.
Significantly, Ullah does not challenge the Government's construction of his request for evidence seized, and there is no indication in the record that any other items were taken from Ullah in connection with the pending charges. Nor has Ullah denied that he received copies of the documents specified by the Government in response to the motion, or identified any other documents which he maintains are responsive to the request and which the Government has failed to produce. As such, Ullah's request is DISMISSED as moot insofar as Ullah seeks copies of documents seized from him during his attempt to enter the United States on December 22, 2003. Furthermore, Ullah's challenge to the admissibility of such documents as evidence at trial is not a pretrial matter which this court is authorized to consider and, as such, will not be addressed at this time. Rather, this matter may be presented to the District Judge at trial.
H. Preservation of Evidence
Ullah requests the Government to produce "all videotapes, dispatch tapes, or any other physical evidence that may be destroyed, lost, or otherwise put out of [ sic] possession, custody, or care of the Government," and which relate to Ullah's arrest on the pending charges. Discovery Motion at 8-9 (Request No. 7). The Government maintains that no such evidence exists as no recordings of any kind were made either at primary or secondary inspection. Government's Response to Discovery Motion at 14. Ullah does not argue further in support of this request, nor does Ullah challenge the Government's assertion that no such evidence exists.
As such, Ullah's request for preservation of evidence is DISMISSED as moot.
I. Tangible Objects
Ullah requests the opportunity to inspect and copy all documents and tangible items that are material to the defense or that the Government intends to use in its case-in-chief. Discovery Motion at 9-10 (Request No. 8). Ullah maintains that despite a request made in February 2004, the Government has yet to produce the tape recordings of his alleged unlawful administrative removal proceedings conducted before the IJ in California in December 1999, although Ullah does acknowledge receiving copies of such tape recordings on computer disks. Discovery Motion at 9. Ullah, however, maintains that Batavia Federal Detention Facility in which he is housed seized the disks as contraband. Id. Accordingly, Ullah also requests the Government to have the recordings transcribed, and the transcripts forwarded to Ullah. Id. at 9-10.
The Government maintains that it has provided Ullah with copies of all documents and recordings. Government's Response to Discovery Motion at 14-15. The Government further states that the issue of Ullah's inability to listen to the recordings of the 199 administrative removal proceedings was discussed at the proceedings before the undersigned on October 21, 2004, when Ullah was proceeding pro se, and the Government advised the court it would inquire as to whether it was possible for Ullah to have access to a tape player at the Batavia Federal Detention Facility to review the tapes. Id. at 15. According to the Government, such inquiry was made and the Government has confirmed that, contrary to his representations, Ullah has had the opportunity to review, at the facility, the tape recordings of his 1999 administrative removal proceedings. Id.
The Government's representations that it provided Ullah with tape recordings pertaining to his 1999 administrative removal proceedings, and that it would inquire as to whether Ullah could be provided with access to a tape player to review such recordings is consistent with the Minute Entry appearing on the docket for the October 20, 2004 proceedings before the undersigned. Significantly, although Ullah filed further papers in support of his pending motions, Ullah has not challenged the Government's assertion that it had "confirmed that the defendant [Ullah] indeed had the opportunity to review the proceedings provided." Government's Response to Discovery Motion at 15. Accordingly, Ullah's request is DISMISSED as moot.
J. Information Regarding Informants and Cooperating Witnesses
Ullah requests "all relevant information concerning any informants or any cooperating witnesses involved in this case." Discovery Motion at 10 (Request No. 9). Ullah alternatively requests that, "at a minimum," the Government identify any such informant or witness. Id. The Government maintains that it is not aware of any informant or cooperating witness in this case, but that should it become aware of such informant or witness, the Government will address the issue in light of Roviaro v. United States, 353 U.S. 54 (1957). Ullah has not further pursued this request.
As such, Ullah's request for information as to informants or cooperating witnesses involved in this case is DISMISSED as moot.
K. Evidence of Criminal Investigation of any Government Witness
Ullah requests the Government disclose as to any witness the Government intends to call to testify during trial whether such witness is under investigation by any law enforcement authority for any criminal conduct. Discovery Motion at 11 (Request No. 12). According to Ullah, such information is crucial because he has previously been the subject of false criminal charges for which he was wrongfully convicted based on false testimony by Government agents. Id. The Government asserts as a threshold matter that it has yet to determine what witnesses will be called at trial and that neither the Constitution nor Rule 16 obliges the Government to disclose the identities of its witnesses prior to trial. Government's Response to Discovery Motion at 17. Nevertheless, the Government states that it expects to call to testify as witnesses government agents who initiated the instant prosecution and records custodians, and acknowledges the practice of the court to require the Government's disclosure of a witness list prior to trial, and that the Government is prepared to comply with such request. Id. The Government further maintains it is not aware of any criminal investigation involving any witness the Government may call to testify at trial, but acknowledges that if the Government becomes aware of such information, the disclosure would fall within the Government's obligations under Brady and Giglio. Id.
Rule 16 does not require the government to furnish the names of witnesses prior to trial. United States v. Bejasa, 904 F.2d 137, 139 (2d Cir. 1990). It is well established that the district courts may, in their discretion, compel the government to identify its witnesses. United States v. Cannone, 528 F.2d 296, 301-302 (2d Cir. 1975). However, it is not an abuse of discretion for the court to refuse to compel such disclosure "in the absence of 'a specific showing that disclosure was both material to the preparation of [the] defense and reasonable in light of the circumstances surrounding [the] case.'" Bejasa, supra, at 139-40 (quoting Cannone, supra, at 301 (emphasis in original)).
In the instant case, based on the Government's statements that it intends to comply with any court order requiring the disclosure prior to trial of Government witnesses, as well as the Government's assertion that it is unaware of any criminal investigation against any such witnesses and, as well, that Ullah knows the identity of the agents who investigated him and as such are likely to testify, Ullah's motion is DISMISSED as moot. The Government, however, is reminded that under United States v. Kyle, 514 U.S. 419, 437 (1995), "the prosecutor has a duty to learn of any favorable evidence known to the others, acting on the government's behalf in the case, including the police." See also United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995) ("The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation).
L. Government Examination of Law Enforcement Personnel Files
Ullah requests that the Government examine the personnel files, as well as any other files within the Government's control, as to any agent who may have controlled or contacted any confidential informants in this case, for evidence of perjurious conduct, dishonesty, or any other impeachment or exculpatory evidence. Discovery Motion at 13 (Request No. 18). Ullah further asks for a court order directing the Government to produce any such materials to Ullah prior to trial. Id. The Government maintains the this request is premised on Ullah's incorrect assumption of the existence of an informant or cooperating witness. Government's Response to Discovery Motion at 19. The Government maintains that there is no such informant or cooperating witness in this case, but that should the Government become aware of such an informant or witness, it will address the issue more thoroughly in light of Roviaro v. United States, 353 U.S. 54 (1957). Id. at 20. Alternatively, the Government asserts that insofar as Ullah requests information relative to impeachment material of a Government witness, the Government understands and intends to comply with its obligations under Giglio, supra. Id. Ullah does not argue otherwise.
Accordingly, insofar as no informant or cooperating witness was used by the Government in investigating this case, Ullah's request is DISMISSED as moot. However, should the Government become aware of such an informant, the Government is directed to review the personnel file of any law enforcement officer having contact with such witness for any impeachment or exculpatory material. See Gonzalez-Pena v. Herbert, 2005 WL 27496, *12 (W.D.N.Y. Jan. 5, 2005) ("'A duty to search files maintained by governmental agencies closely aligned with the prosecution may be triggered when there is some reasonable prospect or notice of finding exculpatory evidence.'") (quoting United States v. Preston, 1996 WL 254379, *15 (D. Kan. 1996)).
M. Government's Expert Witnesses
Ullah requests the Government provide the name, qualifications, and anticipated testimony of any expert witness the Government intends to call at trial, pursuant to Fed.R.Crim.P. 16(a)(1)(G). Discovery Motion at 13 (Request No. 19). The Government states that it presently expects to present to the jury at trial fingerprint evidence and analysis, but that no evaluation or analysis has yet been conducted by an expert. Government's Response to Discovery Motion at 20-21. The Government nevertheless reserves its right to offer the testimony of an expert witness and, if such a witness is to be used, the Government assures that it will fully comply with the requirements of Fed.R.Crim.P. 16(a)(1)(G), as well as Federal Rules of Evidence 702, 703 and 705. Government's Response to Discovery Motion at 20-21.
Both Ullah and the Government refer to Fed.R.Crim .P. 16(a)(1)(E) as governing expert witnesses. However, Rule 16 was am ended in 2002, and Rule 16(a)(1)(E) was relettered as 16(a)(1)(G).
Accordingly, Ullah's request for Rule 16(a)(1)(G) discovery of written summary of any expert witness testimony is DISMISSED as moot insofar as the Government does not intend to offer such evidence; however, should the Government later decide to offer such testimony, Ullah's request pursuant to Rule 16(a)(1)(G) is GRANTED.
N. Grand Jury Transcripts
Ullah requests the Government provide him with full transcripts and all exhibits used in the Grand Jury Proceedings which resulted in the Indictment and Superseding Indictment. Discovery Memorandum at 14 (Request No. 21). According to Ullah, the requests testimony and exhibits were not true or valid. Id. The Government maintains that such request falls under the Jencks Act and, as such, need not be disclosed until after direct examination at trial of any witness who testified before the Grand Jury. Government's Response to Discovery Motion at 21-22.
The grand jury exists not to determine guilt or innocence, but to assess whether there is an adequate basis for bringing a criminal charge. Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972). As such, "[a]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more." Costello v. United States, 350 U.S. 359, 364 (1956) (declining to enforce the hearsay rule in grand jury proceedings as to do so "would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules"). "A grand jury is neither an officer nor an agent of the United States, but a part of the court." Falter v. United States, 23 F.2d 420, 425 (2d Cir.), cert. denied, 277 U.S. 590 (1928). However, to ensure a grand jury's independence, a court has limited supervisory authority over the grand jury. United States v. Williams, 504 U.S. 36, 46-47 (1992). Any power which a federal court may have over a grand jury is highly circumscribed, not "remotely comparable" to the power which state courts maintain over their own proceedings. Williams, supra, at 50. In Williams, the Court went beyond Costello, supra, holding that a challenge to the sufficiency of the grand jury evidence, recast as a claim that the prosecutor's presentation was incomplete or misleading, would be an insufficient grount to require dismissal of an indictment. Williams, supra, at 54.
Further, grand jury proceedings carry a presumption of regularity. Hamling v. United States, 418 U.S. 87, 139-40 (1974). A review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct. See United States v. Torres, 901 F.2d 205, 232-33 (2d Cir. 1990); United States v. Wilson, 565 F.Supp. 1416, 1436-37 (S.D.N.Y. 1983) (denying inspection of the grand jury minutes where defense counsel agreed that "a certain degree of discovery is necessary in order to fully verify and document these federal and state grievances and it is imperative that certain information be supplied to the defense, which is essential to mounting and successfully advancing this legal attack"). The secrecy of the grand jury will not be compromised by an order to disclose grand jury minutes without a showing of "particularized need." Dennis v. United States, 384 U.S. 855, 871-72 (1966).
The Supreme Court has held that an indictment voted by a federal grand jury may not be challenged on the ground that it is supported by inadequate or incompetent evidence. Costello, supra, at 363. In United States v. Olin Corp., 465 F.Supp. 1120 (W.D.N.Y. 1979), the court held that unsupported suspicions of grand jury abuse by the prosecution did not justify disturbing the secrecy of the grand jury's proceedings. The court also noted that, while several New York state cases supported such disclosure under state law, such holdings were inapplicable to federal grand jury proceedings, and absent any evidentiary showing of grand jury abuse, disclosure would not be granted. Olin, supra, at 1127, n. 5.
Pursuant to New York Criminal Procedure Law § 190.25(4)(a) (McKinney 1994), grand jury proceedings are to be kept secret and the nature or substance of any grand jury proceeding may be disclosed only pursuant to a written court order.
In the instant case, Ullah has failed to specify any factual basis for his assertion that testimony and exhibits presented to the Grand Jury which returned the Superseding Indictment were invalid. As such, Ullah has failed to establish the requisite "particularized need" to compel disclosure of the Grand Jury testimony and exhibits and his request for the same is, therefore, DENIED.
2. Motions to Dismiss
Ullah seeks to dismiss the Superseding Indictment for (1) pre-indictment delay; (2) violations of the Sixth Amendment Speedy Trial Clause; (3) selective prosecution; (4) "lapse and absence of Statute of Limitation"); (5) alleged due process violations that occurred in connection with prior removal proceedings; (6) Fourth and Fifth Amendment violations; and (7) vindictive prosecution. The Government maintains the motions to dismiss should be denied because Ullah has failed to meet the burden of proof relevant to any of the theories asserted in support of dismissal.
A. Pre-Indictment Delay
Ullah argues the Superseding Indictment must be dismissed because he was not indicted within 30 days from the date the Complaint was filed as required under the Speedy Trial Act, 18 U.S.C. § 3161(b). Ullah Declaration Supporting Dismissal of the Indictment ¶ 15. Rather, the original Indictment was returned on February 18, 2004, 58 days after the Complaint was filed on December 23, 2003. Id. The Government argues in opposition that Ullah, at his initial appearance in this court on December 23, 2003, agreed to delay a preliminary hearing until a detention hearing had been held, as well as to exclude from the time in which he was to be indicted as Ullah's interest in preparing for the detention hearing outweighed Ullah's and the public's interest in an early indictment on the matter. Government's Response to Motions to Dismiss at 5-6. The detention hearing was initially scheduled for January 27, 2004, but was adjourned to February 10, 2004, to permit Ullah and his then counsel, the Federal Public Defender, additional time to review Ullah's voluminous A-File. Government's Response to Motions to Dismiss at 5. Ullah's detention hearing was held on February 10, 2004, following which Ullah was ordered detained and a preliminary hearing was scheduled for February 19, 2004. Id. at 6. The original Indictment was returned by a federal grand jury on February 18, 2004. Id. The Government thus maintains that although the original Indictment was not filed until 58 days after the Complaint, the Superseding Indictment must not be dismissed for pre-indictment delay because Ullah agreed to delay scheduling a preliminary hearing until after a detention hearing was held and, in any event, Ullah has not demonstrated that he suffered any actual prejudice resulting from the delay. Id. at 5-7. Ullah replies in further support of dismissal that he never agreed to adjourn the detention and preliminary hearing for 30 days, but that such request was made only by Ullah's then counsel Assistant Federal Public Defender John Humann. Ullah's Reply Affidavit ¶ 8.
As relevant, the Speedy Trial Act provides that "[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." 18 U.S.C. § 3161(b); United States v. Gaskin, 364 F.3d 438, 451 (2d Cir. 2004). The failure to timely file an indictment can result in the dismissal of the indictment. 18 U.S.C. § 3162(a)(1); Gaskin, supra. Specifically,
[i]f in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.18 U.S.C. § 3162(a)(1).
As relevant to the instant case, 18 U.S.C. § 3161(h) provides for excluding from the computation of time within which an information or an indictment must be filed
(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to —
* * *
(F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion;
* * *
(8)(A) Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice serve by taking such action outweigh the best interest of the public and the defendant in a speedy trial.18 U.S.C. § 3161(h)(8)(A).
Here, the record unequivocally establishes that at Ullah's initial appearance on the Criminal Complaint on December 23, 2003, the Government moved for a detention hearing on the basis that Ullah presented a serious risk of flight. Initial Appearance T. at 13. Ullah, through his then counsel Mr. Humann, informed the court that Ullah wished to adjourn a hearing on the detention motion for thirty days in conjunction with a preliminary hearing. Initial Appearance T at 13-15. The undersigned, upon determining that Ullah's interest in preparing for the hearing outweighed both Ullah's and the public's interest in an early indictment on the matter, then ordered that the detention hearing and preliminary hearing be held together on January 27, 2004 until which time thirty days would remain on the Speedy Trial Act clock. Id. at 15-16. Upon appearing before the undersigned as scheduled on January 27, 2004, Mr. Humann advised that additional time was needed to permit Ullah and defense counsel to review Ullah's voluminous A-file that had been received only a couple of days earlier. January 27, 2004 Minute Entry. The matter was adjourned until February 10, 2004 and Ullah again agreed to exclude from the calculation of time in which he must be indicted under the Speedy Trial Act as Ullah's interest in preparing for the detention hearing outweighed his and the public's interest in an early indictment on the matter. Id. The detention hearing was held on February 11, 2004, February 11, 2004 Minute Entry, and the original Indictment was returned on February 18, 2004, well within the 30 day statutory period. As to Ullah's assertion that he did not agree with Mr. Humann's request to adjourn the detention and preliminary hearing for 30 days, Ullah Reply Affidavit ¶ 7, there is no suggestion in the record that Ullah objected to the request and, thus, Ullah acquiesced in the request. See United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999) (where defendant, who was being prosecuted for tax evasion, failed to object to defense counsel's waiver of defendant's Sixth Amendment right to confrontation by stipulating to IRS agent's hearsay account of a conversation crucial to criminal charges pending against defendant, defendant acquiesced in such waiver). Nor does any legal authority support Ullah's claim that all Speedy Trial Act waivers must be made by the Defendant in writing and that the 30 days in which to indict cannot be excluded or delayed for any reason. Ullah's Reply Affidavit ¶ 8. Rather, the Speedy Trial Act specifically provides that the court must "set forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)8) (A). Moreover, the court's research provides no legal authority supporting Ullah's bald assertion that 30-day period in which to indict cannot be extended under the Speedy Trial Act clock. To the contrary, 18 U.S.C. § 3162(a)(1) acknowledges that the time limit in which indictment is required under § 3161(b) may be extended under § 3161(h).
Exhibit 2 to Gioia Affidavit.
There is a discrepancy in the record as to the date of the detention hearing. In particular, although the January 27, 2004 Minute Entry indicates that the detention hearing was adjourned until February 10, 2004, both the February 11, 2004 Minute Entry and the Order of Detention Pending Trial (Doc. No. 6), indicate that the detention hearing was held on February 11, 2004. The Government admits that although the detention hearing was scheduled for February 10, 2004, the hearing was not held until February 11, 2004 and, as a result, the grand jury had only 29, rather than 30 days, in which to indict Ullah for violating 8 U.S.C. § 1326. Government's Sur-Reply at 13-14.
The record thus establishes that the delay between the filing of the Criminal Complaint on December 23, 2003 and the return of the original Indictment on February 18, 2004 is excludable from the thirty days permitted under the Speedy Trial Act because the delay resulted from the Government's moving for detention, Ullah's counsel's need to prepare for the combine preliminary and detention hearing, and that Ullah's interest in preparing for the hearing outweighed Ullah's and the public's interest in an early indictment on the matter. Accordingly, there is no merit to Ullah's assertion that the Superseding Indictment must be dismissed for a violation of the Speedy Trial Act because 58 days elapsed between the filing of the Criminal Complaint and the return of the original Indictment.
Ullah did not appeal the court's detention order, although on July 1, 2004, Ullah filed a motion, pro se, seeking reconsideration of the Order or Detention based on a change in family circumstances which Ullah maintained warranted his release on bond.
Furthermore, even assuming, arguendo, that a Speedy Trial Act violation had occurred based on pre-indictment delay, dismissal of the Superseding Indictment would not be required as the sanction of dismissal is neither constitutionally mandated and "has 'very limited application.'" Gaskin, supra, at 451 (quoting United States v. Napolitano, 761 F.2d 135, 137 (2d Cir. 1985)). "[T]he purpose of the Speedy Trial Act is simply 'to expedite the processing of pending criminal proceedings,' not to supervise prosecutorial discretion in investigating and charging crimes not actually pending before the court," Gaskin, supra, at 452 (quoting United States v. Hillegas, 578 F.2d 453, 456 (2d Cir. 1978)), but "the statute of limitations is 'the primary guarantee against bringing overly stale criminal charges." United States v. Cornielle, 171 F.3d 748, 751 (2d Cir. 1999) (quoting United States v. Marion, 404 U.S. 307, 322 (1971)). In order to merit dismissal of an indictment brought within the applicable statute of limitations, the defendant must demonstrate that preindictment delay "cause[d] 'substantial prejudice' to the defendant's ability to present his defense and 'the delay was an intentional device to gain [a] tactical advantage over the accused.'" Cornielle, supra, at 752 (quoting Marion, supra, at 324). If the defendant demonstrates that both prongs of this "heavy burden" have been met by the preindictment delay, the delay will have so far departed from the fundamental notion of "fair play" as to support a due process violation and require dismissal. Cornielle, supra, at 752 (citing United States v. Lovasco, 431 U.S. 783, 795 (1977), United States v. Scarpa, 913, 993, 1014 (2d Cir. 1990), and United States v. Hoo, 825 F.2d 667, 671 (2d Cir. 1987)).
In the instant case, the statute of limitations for the non-capital crimes with which Ullah is charged is five years. 18 U.S.C. § 3282(a). Accordingly, both the original Indictment and the Superseding Indictment were returned well within the statute of limitations as measured from Ullah's arrest on December 22, 2003 and should not be dismissed as filed more than 30 days after the filing of the Criminal Complaint unless Ullah demonstrates that his ability to present his defense was substantially prejudiced by the preindictment delay, and that the Government intended the delay to gain a tactical advantage over Ullah. Cornielle, supra, at 752.
Ullah has not pointed to anything in the record demonstrating either that he suffered any prejudice as a result of preindictment delay, or that the Government intentionally delayed seeking an indictment so as to gain a tactical advantage over Ullah. Accordingly, the motion to dismiss based on preindictment delay should also be DENIED on this ground.
B. Sixth Amendment Speedy Trial Clause and Speedy Trial Act
Ullah moves to dismiss the Superseding Indictment for unspecified violations of the Sixth Amendment Speedy Trial Clause and the Speedy Trial Act, 18 U.S.C. § 3161, other than the pre-indictment delay discussed above, that allegedly caused Ullah to suffer severe prejudice. Ullah Declaration Supporting Dismissal of the Indictment ¶¶ 14-15. The Government argues in opposition that despite numerous bald asserted violations of the Sixth Amendment Speedy Trial Clause and the Speedy Trial Act, Ullah fails to specify any valid basis supporting any such violation. Government's Response to Motions to Dismiss at 3-7; Government's Sur-Reply at 10-20.
Initially, the court observes that Ullah did not, in his motion to dismiss for violations of the Speedy Trial Act, specify any other factual basis for such dismissal other than the alleged pre-indictment delay discussed above. Discussion, supra, at 303-6. Nevertheless, in papers filed in further support of the motion, Ullah challenges that certain periods of time either were not excluded or were improperly excluded. Ullah's Reply Affidavit ¶¶ 2-3, 8-11, 13-16. For example, Ullah maintains that although the court's February 20, 2004 Scheduling Order set April 2, 2004 as the deadline for filing dispositive motions, the filing of the Scheduling Order did not stop the speedy trial clock from running and that as no motions were filed under March 30, 2004, i.e., forty days after the original Indictment was returned, those forty days must be counted against the 70 days permitted under the Speedy Trial Act. Ullah's Reply Affidavit ¶ 10.
Ullah further states that "to my understanding and belief Speedy Trial Act waivers must be executed in writing by the Defendant himself with full understanding of it and not by any vague assumption by the Court." Ullah's Reply Affidavit ¶ 8.
As discussed above, Discussion, supra, at 33, there is no requirement that Speedy Trial Act waivers must be executed in writing by the Defendant. Furthermore, the Government, in responding to Ullah's motion, has provided a thorough analysis of each of the periods of time which Ullah claims either were not excluded from the computation of the Speedy Trial Act clock, or were improperly excluded, and has accounted for all the time between Ullah's arrest on December 23, 2003 up to and including the present and established that to date, only one day of the 70 days available under the Speedy Trial Act clock is unexcludable. See Government's Sur-Reply at 10-20.
Specifically, the 30 days between December 22, 2003 to January 27, 2004 were excluded because the undersigned determined that Ullah's interest in preparing for the detention and preliminary hearing outweighed Ullah and the public's interest in an early indictment, a permissible ground for exclusion under 18 U.S.C. § 3161(h)(8)(A) ("§ 3161(h)(8)(A)"). December 23, 2003 Pretrial Proceedings Transcript (Gioia Affidavit Exh. 2), at 16). The detention and preliminary hearing scheduled for January 27, 2004 was adjourned for an additional 30 days, at Ullah's request, and the 30 days between January 27, 2004 and February 10, 2004 were also excluded under § 3161(h)(8)(A). January 27, 2004 Minute Entry, Doc. No. 4. The nine days between February 11, 2004, the rescheduled date of the detention hearing, and the actual return of the original Indictment on February 19, 2004, are excluded because although the Indictment was returned on February 18, 2004, the arraignment at which Ullah entered his not guilty plea, thereby triggering the running of the Speedy Trial Act clock, did not occur until February 19, 2004. United States v. Nixon, 779 F.2d 126, 129-31 (2d Cir. 1985) (holding 70-day period under Speedy Trial Act commences on date defendant enters a not-guilty plea). Although the Government is willing to concede that one day may be non-excludable based on the fact that Ullah was arraigned one day after the original Indictment was returned, Government's Sur-Reply at 13-14, there is ample caselaw establishing that the period prior to arraignment is excludable. See Nixon, supra, at 129-31; United States v. Segura, 2001 WL 286851, *1 (D.Conn. March 21, 2001) (interpreting 18 U.S.C. § 3161(c)(1) as providing that the Speedy Trial Act requires that "all criminal defendants shall be brought to trial within 70 days of the date of their indictment or arraignment, whichever occurs later"). Cf. United States v. Kelly, 45 F.3d 45, 47-48 (2d Cir. 1995) (holding time between date superseding indictment is returned and date of defendant's arraignment thereon is excludable under Speedy Trial Act, provided government has not acted in bad faith or with dilatory motive). Accordingly, the court will not count any days as not excluded during this period of time.
As to Ullah's assertion that forty of the days between the court's February 20, 2004 Scheduling Order setting the deadline for filing dispositive motions at April 2, 2004, and the date the Government filed its pretrial motion on March 30, 2004 should not be excluded because the Speedy Trial Act clock is not automatically stayed pending the filing of motion, Ullah's Reply Affidavit ¶ 10, is without merit. First, the undersigned specifically found that the period of time between the date of the February 20, 2004 Scheduling Order and the date of any oral argument on such motions was excludable. See February 20, 2004 Scheduling Order (Doc. No. 9) at 2. Further, this court has held that the time necessary for the preparation of motions is properly excluded from the Speedy Trial Act clock. United States v. Oberoi, 295 F.Supp.2d 286, 295 (W.D.N.Y. 2003) (Arcara, C.J.).
The remaining time periods were all excluded based on the filing of motions. The time between April 2, 2004 to April 22, 2004, was excludable based on Mr. Human's moving on March 30, 2004, to withdraw as Ullah's counsel and which was granted on April 22, 2004. April 22, 2004 Minute Entry (Doc. No. 15). The time between April 22, 2004 to May 20, 2004 was excluded to permit Ullah's newly assigned counsel, David Addleman, supra, time to familiarize himself with the case, in accordance with Mr. Addleman's request. April 22, 2004 Minute Entry (no docket number). At a May 20, 2004 status conference, the undersigned revised, at Ullah's request, the scheduling order, setting June 30, 2004 as the new deadline for filing pretrial motions and specifically excluded time through disposition of the motions. May 20, 2004 Minute Entry (Doc. No. 18). Accordingly, the time between May 20, 2004 and June 30, 2004 is excludable. See also Oberoi, supra, at 295. On July 1, 2004, Ullah, through his attorney, filed a motion to extend the deadline for filing pretrial motions and seeking reconsideration of the order of detention. Motion for Extension of Time to File and to Modify Conditions of Release (Doc. No. 19). Ullah also filed, pro se, on July 1, 2004, a motion seeking release from custody to attend to some urgent family matter. Motion for Reconsideration of Order of Detention (Doc. No. 21). In the Government's response to the motion, filed on July 2, 2004, the Government did not oppose the request for an extension of time for filing pretrial motions, but did oppose the motions insofar as they sought reconsideration of the detention order. Affidavit by Assistant United States Attorney in Response to Sakhwat Ullah Jr. (Doc. No. 22). By Order filed on July 2, 2004, the undersigned dismissed the motions for reconsideration of the detention order, and granted the request for an extension of time to file pretrial motions, setting October 15, 2004 as the new deadline for filing such motions. (Doc. No. 24). Accordingly, the time between July 2, 2004 and October 15, 2004 is excludable. Oberoi, supra, at 295. Finally, beginning on October 7, 2004, and continuing through February 1, 2005, Ullah filed seven motions which remain pending before this court. Because no single motion had been fully argued and submitted prior to the filing of additional motions, all time since October 15, 2004 has been excluded by operation of 18 U.S.C. § 3161(h)(i)(J).
In fact, Ullah most recently filed on March 4, 2004, additional papers in support of the pending motions (Docs. No. 57 and 58), and the Government's reply was filed on _____ (Doc. No.), thereby further delaying the Speedy Trial Act clock from running.
Accordingly, only one of the 70-days allowable under the Speedy Trial Act clock was not excludable and Ullah's motion to dismiss for violations of the Speedy Trial Act clock should be DENIED. The court next considers whether any delay in this case has violated Ullah's Sixth Amendment right to a speedy trial.
The Sixth Amendment guarantees all criminal defendants the right to a speedy trial. United States v. Blanco, 861 F.2d 773, 777 (2d Cir. 1988). In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court identified four factors that must be considered in determining whether a defendant's Sixth Amendment right to a speedy trial has been violated, including (1) the length of the delay between the indictment and the trial; (2) the reason for the delay; (3) when the defendant asserted the right to a speedy trial; and (4) the prejudice the defendant suffered as a result of the delay. Barker, supra, at 530. No one of these four factors is dispositive, rather, the four factors are related and must be considered with other relevant circumstances. Id. at 533.
As to the first factor, "[a] long delay between indictment and trial is presumptively prejudicial to the defendant and triggers an inquiry into the other three Barker factors." Blanco, supra, at 777-78 (citing United states v. Loud Hawk, 474 U.S. 302, 314 (1986). In the instant case, to date, approximately fifteen months have elapsed since Ullah's arrest on December 22, 2003. This delay is not particularly long and, when considered in connection with the other three Barker factors, is insufficient to establish a Sixth Amendment speedy trial violation. See United States v. Williams, 372 F.3d 96, 112-13 (2d Cir. 2004) (holding three year delay between indictment and trial did not violate right to speedy trial in light of other Barker factors).
The second Barker factor, i.e., the Government's asserted reason for the delay between the indictment and the trial, is closely related to the length of the delay. Barker, supra, at 531. "It is clear that the government has a constitutional duty to make a diligent, good faith effort to bring a defendant to trial promptly." Blanco, supra, at 778 (citing cases). While a deliberate attempt to delay a trial to hamper the defense would weigh heavily against the Government, more neutral reasons, including negligence and overcrowded courts, should be weighted less heavily against the Government and "a valid reason, such as a missing witness, should serve to justify appropriate delay." Id. Put another way, "'delay alone is insufficient to constitute a Sixth Amendment violation.' Where there is a reasonable explanation for a delay, its negative implications will be vitiated." Garcia Montalvo, supra, at 426 (quoting United States v. New Buffalo Amusement Corp., 600 F.2d 368, 372 (2d Cir. 1979)).
In the instant case, most of the delay between Ullah's arrest and now is attributed to motions filed on Ullah's behalf, Ullah's difficulties working with assigned counsel and his desire to proceed pro se, rather than to any lack of diligence by the Government in prosecuting the action. Accordingly, the second Barker factor weighs in the Government's favor.
Consideration of the third factor, i.e., the date when the defendant asserted the right to a speedy trial, also weighs in the Government's favor. Specifically, Ullah's motion to dismissing the Superseding Indictment based on a Sixth Amendment speedy trial violation was filed on October 7, 2004, i.e., eight days before the October 15, 2004 deadline for filing pretrial motions. Significantly, the record establishes that the original pretrial motion deadline of April 2, 2004 was extended to June 30, 2004 to accommodate the withdrawal of Ullah's first appointed counsel, with which Ullah concurred, and was later extended to October 15, 2004, again at Ullah's request. Accordingly, the third Barker factor also weighs in the Government's favor.
As to the fourth Barker factor, the Supreme Court has instructed that prejudice "should be assessed in the light of the interests of defendant which the speedy trial right was designed to protect." Barker, supra, at 532. Such interests include (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defendant's defense will be impaired. Id. The third interest is the most important as a defendant's inability "to adequately prepare his case skews the fairness of the entire system." Id. The death or disappearance of a witness and the inability of a defense witness to accurately recall past events are examples of prejudice that can result from a delay. Id. A lengthy pretrial incarceration may also hamper preparation of a defense. Id.
Here, however, Ullah points to no prejudice suffered as a result of the delay, as required under the fourth Barker factor. Accordingly, the fourth Barker factor does not favor Ullah.
The four Barker factors, in consideration with the circumstances of this case, do not require dismissal of the Indictment for violating the Sixth Amendment right to a speedy trial and Ullah's motion should be DENIED.
C. Selective Prosecution
Ullah asserts that the Superseding Indictment should be dismissed because the facts and evidence establish that the Government has subjected him to selective prosecution based on Ullah's race as an Asian who is often mistaken for an Arab, Hispanic or an East Indian. Ullah Declaration Supporting Dismissal of the Indictment ¶¶ 2, 13. The Government argues in opposition that Ullah has failed to meet his burden to substantiate a selective prosecution claim. Government's Response to Motions to Dismiss at 9-10.
Selective prosecution occurs when the government's decision to prosecute is based upon the defendant's race, religion or some other arbitrary classification. United States v. Armstrong, 517 U.S. 456, 463 (1996). A selective prosecution claim is not a defense on the merits to pending criminal charges but, rather, "an independent assertion that the prosecutor has brought the charge for reasons forbidden by the constitution." Armstrong, supra, at 463. On a selective prosecution claim, the defendant "asks a court to exercise judicial power over a 'special province' of the Executive," and the standard in such a case "is a demanding one." Armstrong, supra, at 464.
To establish selective prosecution, the claimant must demonstrate that the federal prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose. Wayte v. United States, 470 U.S. 598, 607 (1985). See also Armstrong, supra, at 1487. The claimant, however, cannot meet this burden merely by showing that a high percentage of persons prosecuted under a particular statute belonged to the same race; rather the claimant must also show that "similarly situated individuals of a different race were not prosecuted." Armstrong, supra, at 456. See United States v. Moon, 718 F.2d 1210, 1229 (2d Cir. 1983) (the claimant must show others similarly situated have not been proceeded against and government's selection of him for prosecution was invidious or in bad faith), cert. denied, 466 U.S. 971 (1984).
Further, as justifications for a rigorous standard for the elements of a selective-prosecution claim require a correspondingly rigorous standard for discovery in aid of such a claim, the Supreme Court has "concluded that a defendant seeking discovery in support of a claim of selective prosecution must present 'some evidence tending to show the existence of the essential elements of the defense,' discriminatory effect and discriminatory intent." Armstrong, supra, at 465 (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974)). "[A] credible showing of different treatment of similarly situated persons" is also required to establish eligibility for discovery on the selective prosecution claim. Armstrong, supra, at 465. See also United States v. Fares, 978 F.2d 52, 59 (2d Cir. 1992) (to warrant discovery with respect to a claim of selective prosecution, a defendant must present at least "some evidence tending to show the existence of the essential elements of the defense").
In the instant case, Ullah asserts in support of his selective prosecution claim that two other individuals who allegedly attempted to illegally enter the United states, including William Howard Jeffrey ("Jefrrey") and Juan Manuel Gonzalez-Belmontes ("Gonzalez-Belmontes"), were not subjected to similar prosecution by the United States Attorney for the Western District of New York. Ullah Declaration Supporting Dismissal of the Indictment ¶ 13. The Government, however, asserts that Jeffrey was criminally prosecuted for violating 8 U.S.C. § 1325, for improperly entering the United States so as to avoid inspection by border agents, and Gonzalez-Belmontes was criminally prosecuted for violating 8 U.S.C. § 1326, the same charge pending before Ullah for reentering the United States after deportation and without permission. Government's Response to Motions to Dismiss at 10-11. A review of the relevant docket for Jeffrey establishes that on September 9, 2003, Jeffrey pleaded guilty to one count of violating 8 U.S.C. § 1325(a), and was remanded to the INS for further proceedings. United States v. Jeffrey, 03-PO-1062, September 9, 2003 Minute Entry (Doc. No. 2). A review of the relevant docket for Gonzalez-Belmontes establishes that on August 13, 2004, Gonzalez-Belmontes also pleaded guilty to one count of violating 8 U.S.C. § 1326(a). United States v. Gonzalez-Belmontes, 04-CR-199S(F), August 13, 2004 Minute Entry and Plea Agreement (Doc. No. 8). Accordingly, there is no merit to Ullah's claim that Jeffrey and Gonzalez-Belmontes, were not also prosecuted for illegally entering the United States.
As such, Ullah has failed to point to any evidence demonstrating that "similarly situated individuals of a different race were not prosecuted," in relation to the charges against Ullah. Armstrong, supra, at 456. Ullah's motion to dismiss should be DENIED insofar as it is based on a selective prosecution theory.
D. "Lapse and Absence of Statute of Limitations"
Ullah filed a Notice of Motion on October 15, 2004 (Doc. No. 29) seeking dismissal of the Superseding Indictment on several grounds, including "due to the lapse absence of Statute of Limitation." Notice of Motion (Doc. No. 29). According to the attached affidavit submitted in support of the motion, Ullah maintains that because he allegedly never was provided with a copy INS Form I-294 (Warning to Alien Ordered Removed or Deported), which warns of the penalties Ullah faced if he attempted to reenter the United States within ten years of his removal on January 4, 2000, without first obtaining the United States Attorney General's consent, Ullah cannot be subjected to such penalties. Ullah Affidavit Supporting Dismissal and Suppression ¶¶ 27-28; Ullah's Reply Affidavit ¶ 6.
The Government asserts that a copy of the Warning to Alien Ordered Removed or Deported dated December 30, 1999 pertaining to Ullah's removal demonstrates that Ullah was warned not to attempt to reenter the United States within ten years of his removal. Government's Response to Defendant's Motions for Evidentiary Hearing, Suppression and Dismissal at 3-4. Alternatively, the Government maintains that insofar as both of the criminal charges pending against Ullah are subject to five-year statutes of limitations, both the original Indictment and the Superseding Indictment were brought well within the applicable limitations period. Id. at 2-3.
A copy of Form I-294 is attached as Exhibit B to Exhibit 1 to the Gioia Affidavit.
Insofar as Ullah argues that he did not receive Form I-294 upon being removed on January 4, 2004, such fact, even if true, would not warrant dismissal of the Superseding Indictment based on a due process violation. As the court held in United States v. Samaniego-Rodriguez, 32 F.3d 242 (7th Cir. 1994)
According to a transcript of the administrative removal proceedings before the IJ on December 20, 1999 in Lancaster, California, ("Administrative Removal Proceedings T.") (Exhibit 3 to Government's Sur-Reply), Ullah was advised that for a period of ten years following his removal from the United States, Ullah could not return to the United States unless he first obtained the consent of the United States Attorney General, and Ullah responded that he understood the warning. Administrative Removal Proceedings T. at 47-49.
the defendants' reliance on Form I-294 to establish a due process violation is misplaced. The fair notice requirement of the Due Process Clause is satisfied if the criminal statute clearly defines the conduct prohibited and the punishments authorized. United States v. Batchelder, 442 U.S. 114, 123 (1979). Unquestionably, § 1326 satisfies these standards by clearly articulating the penalties for unlawful reentry.Samaniego-Rodriguez, supra, at 244.
At least one court within the Second Circuit has similarly held that "the I-294 notice is not a necessary requirement of due process." United States v. Mancebo-Santiago, 875 F.Supp. 1030, 1033 (S.D.N.Y. 1995) (citing United States v. Sanchez-Montoya, 834 F.Supp. 315, 318 (C.D. Cal. 1985) (holding that the purpose of Form I-294 could not be to preclude deportees from arguing ignorance of the law as a defense to prosecution under 18 U.S.C. § 1326 as "no Court has held, and thus the INS could not reasonably believe, that a deportee might successfully raise a pure ignorance of the law defense under § 1326"), vacated on other grounds, 30 F.3d 1168 (9th Cir. 1994)). Rather, the issuance of the warrant of deportation provides the requisite notice to trigger criminal sanctions for illegal reentry thereafter. Mancebo-Santiago, supra, at 1035-36.
Accordingly, the failure of the INS to provide Ullah with Form I-294, if true, would not warrant dismissal of the Superseding Indictment based on a due process violation. Alternatively, there is no merit to Ullah's motion to dismiss insofar as Ullah maintains that the Superseding Indictment was filed after expiration of the applicable statute of limitations.
The statute of limitations for the non-capital crimes with which Ullah is charged in five years. 18 U.S.C. § 3282(a). Accordingly, both the original Indictment, filed on February 18, 2004, and the Superseding Indictment, filed on October 20, 2004, were returned well within the statute of limitations as measured from Ullah's arrest on December 22, 2003. As such, there is no basis for dismissing the Superseding Indictment as untimely filed and this aspect of Ullah's motion to dismiss should be DENIED.
E. Due Process and Prior Removal Proceedings
Ullah moves to dismiss the Superseding Indictment on the basis that his prior removal from the United States on January 4, 2000, was the result of administrative removal proceedings that were lacking in due process and, as such, precludes the use of his prior removal as a basis for the § 1326 charge pending against him. Simply put, the motion is a collateral attack on Ullah's prior administrative removal proceedings. Although conceding that a collateral attack on a prior removal proceeding may be raised in conjunction with a prosecution for a violation of 8 U.S.C. § 1326, the Government asserts in opposition to the motion that Ullah has failed to make the requisite showing to establish the alleged due process deprivation. Government's Response to Defendant's Motions for Evidentiary Hearing, Suppression and Dismissal at 4-7.
"Section 1326 does not, on its face, require that the earlier deportation have been 'lawful' to support a conviction for illegal reentry." United States v. Paredes-Batista, 140 F.3d 367, 376 (2d Cir. 1998) (citing 8 U.S.C. § 1326, and United States v. Mendoza-Lopez, 481 U.S. 828, 834-35 n. 9 (1987)). Nevertheless, "a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of an alien to obtain judicial review." Mendoza-Lopez, supra, at 839. See United States v. McCalla, 38 F.3d 675, 680 (2d Cir. 1994) (acknowledging "that a severely deficient deportation proceeding which effectively deprives the defendant of his right of direct appeal may preclude use of the deportation as a predicate to prosecution under section 1326), cert. denied, 514 U.S. 1112 (1995). Specifically, "where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense." Mendoza-Lopez, supra, at 838.
Prior to collaterally attacking his prior removal, however, a defendant to a § 1326 charge "must first demonstrate that defects in the deportation proceedings effectively deprived him of his right to direct appeal of the I[mmigration] J[udge]'s decision." Paredes-Batista, supra, at 377. The Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA") amended 8 U.S.C. § 1326 to allow an alien defendant to collaterally challenge the validity of a prior removal order only where
the alien demonstrates that —
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
Significantly, all three requirements, stated in the conjunctive, must be met. United States v. Fernandez-Antonia, 278, 150, 157 (2d Cir. 2002) (stating that as three requirements set forth in 8 U.S.C. § 1326(d) are stated in the conjunctive, defendants must establish all three to successfully challenge removal order).
In the instant case, Ullah asserts a plethora of allegations challenging his prior removal proceedings on several grounds, including that the proceedings were predicated on an unlawfully obtained conviction, that he is a United States citizen by birth, that the Government refused to recognize as legitimate a birth certificate indicating Ullah was born in California, and that the Government created false documents in Ullah's name that were placed in Ullah's A-File to establish that Ullah is not a United States citizen but, rather, a citizen of Bangladesh. Even if such allegations are true, Ullah has not alleged any facts suggesting that he either exhausted administrative remedies that may have been available as relief against the removal order, or that he was deprived of the opportunity for judicial review. As stated, 8 U.S.C. § 1326 does not require "that the earlier deportation have been 'lawful' to support a conviction for illegal reentry," but, rather, only that the alien demonstrate he was deprived the right to obtain judicial review of the IJ's decision. Paredes-Batista, supra, at 376-77. Therefore, the court is without jurisdiction to consider Ullah's collateral attack on his 1998 conviction on which the prior removal proceedings were predicated.
According to the December 30, 1999 Warrant of Removal/Deportation, Ullah was subject to removal or deportation pursuant to INA § 212(a)(6)(A)(i) (an alien who enters the United States without submitting to inspection by a border agent and at a time and place other than as designated by the Attorney General is inadmissible), and § 212(a)(2)(A)(I) (an alien convicted of a crime involving moral turpitude is inadmissible).
Nor does the record establish that Ullah was denied any opportunity to apply for relief from the removal order, or to seek judicial review of the proceedings. Rather, the record establishes that Ullah, following the IJ's determination that Ullah was inadmissible because he entered the United States without submitting to inspection, in violation of 8 U.S.C. § 1182(a)(6)(A)(i), and based on his December 7, 1998 conviction of a crime involving moral turpitude, in violation of 8 U.S.C. § 1182(a)(2)(A)(I), was given the opportunity to apply for relief from removal. See Administrative Removal Proceedings T. at 29-37 (discussion regarding Ullah's assertion that he intended to apply for termination of the proceedings on the basis that Ullah was a United States citizen by birth, that Ullah's then attorney refused to file such motion on the basis that it was predicated on documents that had previously been declared fraudulent in the underlying criminal action, and that if the motion was denied, Ullah could face further charges of making materially false statements, and that Ullah advised the IJ that he intended to file the motion pro se.) The record further establishes that Ullah exercised his opportunity to obtain judicial review of the administrative removal proceedings. See Administrative Removal Proceedings T. at 38 (Ullah stating that he no longer was opposing removal as long as his appeal to federal court would not be impeded, and that he had legal counsel handling such appeal).
As to Ullah's assertion that he was never served with a Notice of Appearance advising of the immigration charges, that he never received the Form I-294 Warning to Alien Ordered Removed or Deported advising Ullah of the criminal consequences should Ullah attempt to reenter the United States within ten years of being deported without first obtaining the consent of the United States Attorney General, and that the IJ did not make the requisite findings for a valid removal order, the transcript of the administrative removal proceedings establishes otherwise. See Administrative Removal Proceedings T., passim, Exhibit 3 to Government's Sur-Reply. For example, Ullah's appearance before the IJ for the administrative removal proceedings on June 30, 1997 pursuant to the Notice to Appear establishes that Ullah received the requisite notice. Administrative Removal Proceedings T. at 1-3. In fact, the attorney who initially represented Ullah in connection with the administrative removal proceedings stated that Ullah had received the Notice to Appear, and Ullah did not then contest otherwise. Id. at 3.
As to Ullah's assertion that he never received Form I-294 advising Ullah of the criminal penalties for reentering the United States within 10 years or his removal without the express consent of the United States Attorney General, the administrative removal proceedings transcript establishes that the IJ fully advised Ullah of such penalties and Ullah responded that he understood the warning. Administrative Removal Proceedings T. at 47-49. Moreover, as discussed, Discussion, supra, at 47-48, due process does not require that Ullah actually receive a copy of Form I-294. Finally, the administrative removal proceedings transcript establishes that the IJ made the requisite findings for the removal order. See Administrative Removal Proceedings T. at 22 (referencing Ullah's criminal record as establishing Ullah's status as a criminal alien and rejecting Ullah's claim that he was a United States citizen by birth as such claim was predicated on a birth certificate and passport that had previously been determined to be fraudulent).
Accordingly, Ullah's motion seeking dismissal of the Indictment as predicated on a prior removal order that was obtained through removal proceedings containing violations of Ullah's right to due process should be DENIED.
F. Fourth and Fifth Amendment
Ullah asserts that the Superseding Indictment must be dismissed because it was obtained through presentation to the Grand Jury of evidence that was obtained in violation of Ullah's rights under the Fourth and Fifth Amendment. Ullah Affidavit Supporting Dismissal and Suppression ¶¶ 1-22. The Government argues in opposition that as there is no basis for suppressing the evidence that Ullah maintains was unlawfully obtained in violation of Ullah's Fourth and Fifth Amendment rights, there is likewise no basis for dismissing the Superseding Indictment as obtained by presenting such allegedly unlawfully seized evidence to the Grand Jury. Government's Response to Defendant's Motions for Evidentiary Hearing, Suppression and Dismissal at 8.
A federal Indictment may not be dismissed on the ground that inadmissible evidence was presented. Costello v. United States, 350 U.S. 359, 363-64 (1956); United States v. Casamento, 887 F.2d 1141, 1182 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990). Further, as discussed below, Discussion, infra, at 59-68, there is no merit to Ullah's assertion that his detention and interrogation by the border agents at the Rainbow Bridge on December 22, 2003, as well as the search of his person, possessions and vehicle, violated Ullah's rights under the Fourth and Fifth Amendments. Accordingly, there is no merit to Ullah's motion to dismiss the Superseding Indictment insofar as it was obtained by presenting evidence seized as a result of the detention, interrogation and search to the Grand Jury and the motion should be DENIED.
G. Vindictive Prosecution
Ullah urges the court to dismiss the Superseding Indictment pursuant to Fed.R.Crim.P. 48(b), asserting that the inclusion in the Superseding Indictment of Count II, charging Ullah with violating 18 U.S.C. § 1001(a)(2), i.e., knowing and wilfully making material false statement and representation in connection with Ullah's attempt to enter the United States on December 22, 2003, was untimely when filed ten months after the original Indictment. Ullah's Affidavit Supporting Dismissal of Superseding Indictment ¶¶ 1-2. According to Ullah, because there was no change in the facts or circumstances pertaining to the December 22, 2003 incident leading to Ullah's arrest, other than Ullah's decision to represent himself, there is no new basis for Count II. Id. ¶¶ 2-3. Ullah maintains that because the Government could have included Count II in the original Indictment and that the ten month delay in adding the new charge has unfairly prejudiced Ullah's preparation of his defense. Id. ¶ 4. Ullah further maintains that the Government has known Ullah's true identity since Ullah's arrest on December 22, 2003, id. ¶ 5, and that, by waiting ten months, specifically, until after Ullah rejected plea offers, to file the Superseding Indictment which added the second charge, the Government has engaged in vindictive prosecution. Id. ¶ 7. The Government argues in opposition that the circumstances under which the Superseding Indictment was filed do not support a vindictive prosecution claim. Government's Response to Motions to Dismiss at 11-12.
United States Attorneys retain broad discretion to enforce federal criminal laws. United States v. Armstrong, 517 U.S. 456, 464 (1996). Their prosecutorial decisions are supported by a presumption of regularity, and, absent clear evidence to the contrary, courts presume that the prosecutorial decisions are proper. Id. A decision to prosecute violates due process, however, when the prosecution is brought in retaliation for the defendant's exercise of legal rights. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978); Blackledge v. Perry, 417 U.S. 21, 27 (1974); United States v. White, 972 F.2d 16, 19 (2d Cir. 1992). "Accordingly, an indictment will be dismissed if there is a finding of actual vindictiveness, or if there is a presumption of vindictiveness that has not been rebutted by objective evidence justifying the prosecutor's action." United States v. Johnson, 171 F.3d 139, 140 (2d Cir. 1999) ( per curiam).
"A finding of actual vindictiveness requires 'direct' evidence, such as evidence of a statement by the prosecutor, which is available 'only in a rare case.'" Johnson, supra, at 140-41 (quoting United States v. Goodwin, 457 U.S. 368, 380-81 nn. 12-13, 384 n. 19 (1982); and citing United States v. King, 126 F.3d 394, 397 (2d Cir. 1997)). In the instant case, Ullah points to no direct evidence that would establish actual vindictiveness; thus, dismissal of the Superseding Indictment is warranted only upon a finding of a presumption of vindictiveness.
"A presumption of vindictiveness arises when the circumstances of the case create a 'realistic likelihood' of prosecutorial vindictiveness." Johnson, supra, at 141 (quoting King, supra, at 397). The Second Circuit has held in the context of a motion to dismiss a federal indictment charging the defendant with criminal weapons possession following an acquittal on separate federal RICO and RICO conspiracy charges, that a "'but for' causal connection" between the defendant's exercise of a constitutional right and the newly filed criminal charges is required. Johnson, supra, at 141 ("The relevant question, therefore, is whether there is a 'realistic likelihood' that the Government acted out of a vindictive motivation, rather than a legitimate one"). Here, Ullah fails to articulate any facts which, if true, would establish the requisite "but for" causal connection between Ullah's exercise of a constitutional right and the Government's decision to bring new charges against Ullah.
Moreover, the Second Circuit has held that "the presumption of prosecutorial vindictiveness generally does not arise in the pretrial setting." United States v. Koh, 199 F.3d 632, 639 (2d Cir. 1999) (citing United States v. Hinton, 703 F.2d 672, 678 (2d Cir.) (holding defendant not entitled to presumption of vindictiveness where decision to prosecute for bank fraud arose pretrial after prosecution had shifted from state to federal jurisdiction), cert. denied, 462 U.S. 1121 (1983)). Similarly, in the instant case, Ullah's vindictive prosecution claim pertains to the Government's pretrial decision to pursue additional criminal charges against Ullah and, as such, does not trigger the presumption of prosecutorial vindictiveness.
On this record, Ullah's motion to dismiss the Superseding Indictment for prosecutorial vindictiveness should be DENIED.
3. Motion to Sever
In his Notice of Motion filed on October 7, 2004 (Doc. No. 28), Ullah states that along with dismissal of the Indictment, he also seeks severance. When the motion was filed, however, Ullah was the sole defendant in a single-count indictment. Although the Superseding Indictment charges Ullah with two criminal acts, both acts arise from the same set of facts. See Fed.R.Crim.P. 8(a) (permitting the joinder of offenses in an indictment, specifically, that the indictment may charge a defendant in separate counts with two or more offenses, whether felonies or misdemeanors or both — provided the charges offenses "are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan"). Nevertheless, to date, Ullah has not explained his theory for severance. The Government states in opposition to the motion that it "is unable to determine the nature of the relief sought by the defendant in his motion for severance." Government's Response to Motions to Dismiss at 2. Nor has Ullah offered any clarification as to the relief he seeks, despite filing additional papers in support of his other motions.
As the charges arise from the same underlying course of conduct, no basis to sever the counts of the Superseding Indictment is available, even if Ullah's motion is construed as an attack on the Superseding Indictment.
Because Ullah has failed to explain the theory on which he seeks severance either in his initial motion papers, or in subsequent papers filed in support of the motion, Ullah's request for severance is DENIED.
4. Motion In Limine
Ullah filed a motion in limine seeking a court order that certain evidence is inadmissible at trial, either in the Government's case-in-chief, or as impeachment evidence, because the unduly discriminatory and prejudicial nature of such evidence outweighs its probative value. In Limine Memorandum at 2. Although the Government has yet to provide a list of the evidence it tends to offer at trial, Ullah maintains that consideration of the in limine motion now will permit more efficient use of the court's time as his trial approaches. In Limine Memorandum at 2-3. The Government argues that the motion is premature and should be denied without prejudice, and that Ullah should address his in limine concerns to the trial judge, i.e., Chief Judge Arcara.
"The purpose of an in limine motion is 'to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.'" Palmieri v. Difaria, 88 F.3d 136, 141 (2d Cir. 1996) (quoting Banque Hypothecaire Du Canton De Geneve v. Union Mines, 652 F.Supp. 1400, 1401 (D. Md. 1987)). Although a "motion in limine" is defined as "[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial," BLACK'S LAW DICTIONARY 791 (7th ed. 1999), that the Latin term " in limine" is defined as "preliminarily; presented to only the judge, before or during trial," id. at 1033, indicates that a motion in limine is not a pretrial matter that may be referred to a magistrate judge under the enabling statute, 28 U.S.C. § 636(b).
Accordingly, the undersigned is without authority to entertain Ullah's motion in limine and the motion is DENIED without prejudice.
5. Motions to Suppress Evidence and for an Evidentiary Hearing
Ullah has moved for the court to suppress evidence he maintains was obtained through a border search and seizure that was conducted without any probable cause or reasonable suspicion in violation of the Fourth and Fifth Amendments, Ullah Affidavit Supporting Dismissal and Suppression ¶¶ 1-23, and has also requested an evidentiary hearing relative to the motion to suppress. Ullah Affidavit Supporting Evidentiary Hearing ¶ 4. The Government maintains there is no legal basis for suppressing evidence and that Ullah's motion is premised on a misconception as to the standard procedures governing a border detention and a misapplication of relevant law. Government's Response to Defendant's Motions for Evidentiary Hearing, Suppression and Dismissal at 8.
Ullah asserts that on December 22, 2003, while seeking entry into the United States at the Rainbow Bridge in Niagara Falls, New York, he was subjected to racial profiling when, upon arriving at the primary inspection gate, he was directed by U.S. Border Agents ("border agents") to the secondary inspection area without probable cause in violation of the Fourth Amendment. Ullah Affidavit Supporting Dismissal and Suppression ¶¶ 1-3 and 17; Defendant's Memorandum at 31. Ullah remained in the secondary inspection area for five hours where, according to Ullah, the border agents asked him many questions, without first giving a Miranda warning, and the border agents searched Ullah's person, vehicle, attaché, and wallet without Ullah's consent or permission. Ullah Affidavit Supportins Dismissal and Suppression § 3. Ullah maintains that many of the questions put to him by the border agents pertained to Ullah's opinion of the September 11, 2001 terror attacks against the United States and Ullah's motives for entering the United States, thereby demonstrating the border agents were engaging in racial profiling and had "targeted [Ullah] as a suspect of some sort of terrorism related matter." Id. ¶¶ 4-5. According to Ullah, after the border agents checked his identification documents, Ullah informed the border agents that he would voluntarily accept the denial of entry and offered to return to Canada, and that the border agents initially agreed. Id. ¶ 11. Ullah was also asked to complete a denial of entry form and provide a fingerprint. Id. ¶¶ 13. A comparison of Ullah's fingerprint to the border agent's computer database resulted in a match, indicating that Ulah had previously been removed from the United States. Id. ¶¶ 12-14. The border agents then seized Ullah and his personal property. Id. ¶ 14. Ullah further asserts that the border agents physically threatened Ullah so as to intimidate Ullah and force Ullah to admit he was an aggravated felon who was previously prosecuted for his involvement in human smuggling, Id. ¶ 18, and that he was not given his Miranda warning until the next morning. Id. ¶¶ 20-21. Ullah maintains that the Government has since used his identification documents "to obtain additional documents from foreign authorities without any probable cause" and which should thus be suppressed. Id. ¶ 17. Ullah also requests the court to conduct a hearing regarding the issue. Ullah Affidavit Supporting Evidentiary Hearing Motion ¶¶ 4, 10-11.
The Government argues in opposition that Ullah's motion to suppress evidence is based on a misunderstanding of the law governing an alien's entry into the United States. Government's Response to Defendant's Motions for Evidentiary Hearing, Suppression and Dismissal at 8. According to the Government, neither probable cause nor reasonable suspicion is required for routine border inspections and courts, including the Second Circuit Court of Appeals, have held border inspections of much longer duration and more intrusive than the one to which Ullah was subjected at the Rainbow Bridge on December 22, 2003 to qualify as routine. Id. at 8-9. The Government further maintains that although Ullah has not specified in his motion the seized items he seeks to have suppressed from evidence, the suppression motion should be considered only with regard to Ullah's identification documents, i.e., Ullah's Canadian passport and citizenship card, and the documents which Ullah maintains he was traveling to the United States to mail on December 22, 2003. Id. at 10. The Government further asserts that Ullah's references in his suppression motion to alleged Fourth and Fifth Amendment violations that allegedly occurred during contacts with United States law enforcement officials prior to December 22, 2003, and requests to suppress documents contained in Ullah's A-file, are not properly before the court on the instant motion. Id.
Ullah's motion to suppress should be denied for two reasons. First, Ullah has failed to demonstrate that he was entitled to protection under the Fourth and Fifth Amendment when he attempted to gain entry into the United States on December 22, 2003, by presenting a Canadian passport and citizenship card indicating Ullah holds Canadian citizenship. Specifically, the Supreme Court has held that unless an alien can establish that prior to a search the alien has "established a significant voluntary connection with the United States" the Fourth Amendment does not apply to the search. United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990). See also Barrera-Echavarria v. Rison, 44 F. 3d 1441, 1450 (9th Cir. 1995) ("although aliens seeking admission into the United States may physically be allowed within its borders pending a determination of admissibility, such aliens are deemed detained at border and hence as never having effected entry into this country") (quoting Gisbert v. Attorney General, 988 F. 2d 1437, 1440 (5th Cir. 1993)). Nor do aliens enjoy Fifth Amendment protection during a routine border search unless they have "come within the territory of the United States and developed substantial connections with this country." Verdugo-Urquidez, supra, at 271 (citing Plyler v. Doe, 457 U.S. 202, 212 (1982)) (emphasis added). "The Bill of Rights is futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution." Kwong Hai Chew v. Colding, 344 U.S. 593, 596 n. 5 (emphasis added). Accordingly, unless Ullah has shown he had established a substantial voluntary relationship with this country prior to the border stop at issue, there is no basis to apply Miranda to his questioning and any challenged statements nor does the Fourth Amendment apply to the searches and seizures conducted by the border agents.
The record in the instant case, however, is devoid of any evidence demonstrating that Ullah, an alien, had lawfully entered and resided in this country for a sufficient period to trigger the application of Fourth or Fifth Amendment protections to the challenged border inspections to which he was subjected. Significantly, the Supreme Court has specified that it is only upon "lawfully" entering the United States that an alien may begin to establish the substantial connections necessary to warrant entitlement to Fourth Amendment protection upon later seeking entry into the United States. Kwong Hai Chew, supra, at 596 n. 5. Accordingly, as the record is devoid of any indication that Ullah was ever legally present in the United States, Ullah cannot satisfy the requirement for substantial connections under Verdugo-Urquidez, supra.
Ullah's present claim that he is a United States citizen is belied by Ullah's presenting to the border agents citizenship documents indicating Ullah is a citizen of Canada. Moreover, Ullah does not allege that he told any of the border agents with whom he dealt on December 22, 2003 that he was a citizen of the United States, or that he holds both United States and Canadian citizenship, as he alleges in support of his motion for a return of property seized. See Ullah Affidavit Supporting Return of Seized Property ¶¶ 4, 5, 8, 10.
As to Ullah's assertion that the mere fact that he was coming into the United States to mail letters and cards demonstrates his attachment to the United States, Ullah's Reply Affidavit ¶ 49, a review of a copy of the documents Ullah allegedly intended to mail establishes that the documents pertained to people who live in Ontario, Canada. See Gioia Affidavit Exhibit 42. Nor does the fact that Ullah may have friends and family members within the United States, id., establish the requisite connection for Fourth and Fifth Amendment protections to attach. See American Immigration Lawyers Association v. Reno, 18 F.Supp.2d 38, 60 n. 17 (D.D.C. 1998) (concluding regular visits to relatives inside the United States would not constitute substantial connection). Moreover, documentation within Ullah's A-file, including a valid driver's license issued in the United States and a Social Security application, cannot be relied upon to establish that Ullah has substantial lawful connections with the United States entitling him to Fourth and Fifth Amendment protections at the border given that the border agents were not in possession of any part of the A-file until just prior to Ullah's arrest which occurred after certain documents within the A-file were sent by facsimile transmission to the border agents from Vermont. Criminal Complaint ¶¶ 6-7. Significantly, Ullah's earlier unlawful presence in the United States is insufficient to satisfy Verdugo-Urquidez's substantial connection requirement. See United States v. Esparza-Mendoza, 265 F.Supp.2d 1254, 1273 (D.Utah 2003) (declining to conclude that previously deported alien had developed substantial connections with the United States based on prior illegal presence in United States), aff'd, 386 F.3d 953 (10th Cir. 2004). Ullah's motion to suppress thus is without merit insofar as Ullah maintains that he was denied protection under the Fourth and Fifth Amendments during the border search.
Nor is there any merit to Ullah's argument that the challenged search and seizure by the border agents on December 22, 2003 was not supported by probable cause or reasonable suspicion. "The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border." United States v. Flores-Montano, 541 U.S. 149, ___, 124 S.Ct. 1582, 1585 (2004). As such, "[r]outine searches of the persons and effects of [border] entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant. . . ." United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). Rather, "'searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border,'" Flores-Montano, supra (quoting United States v. Ramsey, 431 U.S. 606, 616 (1977)), and are subject to less stringent standards than those conducted after persons or things have entered the United States. United States v. Jerome-Oboh, 883 F. Supp. 917, 921 (W.D.N.Y. 1995).
An alien, upon presenting to an established border checkpoint for entry into the United States, is deemed to have waived any objection to a routine search of his person and property. United States v. Charleus, 871 F. 2d 265, 268 (2d Cir. 1989) ; United States v. Ogberaha, 771 F. 2d 655, 657 (F.2d Cir. 1985), cert. denied, 474 U.S. 1103 (1986); United States v. Nieves, 609 F. 2d 642, 645 (2d Cir. 1979), cert. denied, 444 U.S. 1085 (1980). Such property has been defined as including outer clothing, and the contents of purses, wallets or pockets. United States v. Grote, 702 F. 2d 49, 51 (2d Cir. 1983). The search of the interior of the entrant's car is part of a routine border search procedure. United States v. Carreon, 872 F. 2d 1436, 1442 (10th Cir. 1987) (inspection of vehicle, pat-down of passenger and detention of defendant held to be a reasonable border search procedure). Further, "[t]he referral of a person entering this country to a secondary inspector is part of the 'routine' border interrogation. . . ." United States v. Henry, 604 F.2d 908, 920 (5th Cir. 1979).
As such, in the instant case, the border agents were permitted to direct Ullah to secondary inspection even in the absence of any probable cause or reasonable suspicion that criminality was afoot. Nor did the border agents need probable cause or reasonable suspicion to further interrogate Ullah and search Ullah's person and property, including his vehicle, attaché and wallet, once Ullah entered the secondary inspection area. There is thus no merit to Ullah's motion to suppress evidence on the basis that the search to which he was subjected at the border was unlawfully because it was not based upon any probable cause or reasonable suspicion.
As for Ullah's assertion that statements obtained prior to being given the Miranda warning should be suppressed, it is well established that Miranda warnings are not required to be given to one detained at the border and subjected to a routine customs inquiry. United States v. Silva, 715 F. 2d 43, 46 (2d Cir. 1983); United States v. Moody, 649 F. 2d 124, 127 (2d Cir. 1981). Furthermore, in Verdugo-Urquidez, supra, the Supreme Court observed that Kwong Hai Chew, supra, had held that the Fifth Amendment only could attach to an alien with the same degree of nexus to the United States required to support application of the Fourth Amendment. Verdugo-Urquidez, supra, at 271. Significantly, as the protection afforded by Miranda is primarily based on the Fifth Amendment protection against self-incrimination, it follows that absent the requisite ties to the United States, an alien seeking entry into the United States is not entitled to Miranda protection absent a demonstration of substantial voluntary connections with this county. Here, Ullah has not demonstrated that he had made substantial voluntary connections with the United States as required to establish Ullah's entitlement to protection under Miranda during the routine border inspection.
Ullah, however, maintains that he was not given the Miranda warning until the following morning, i.e., after he had been arrested and placed in a "holding tank" overnight, Ullah's Affidavit Supporting Dismissal and Suppression ¶¶ 20-21, and the Government does not argue otherwise. This is significant insofar as Miranda warnings are required once "the questioning of the officials becomes an interrogation that is custodial in nature in which information is sought for the purpose of using it against [a] person in a criminal proceeding." United States v. Henry, 604 F.2d 908, 915 (5th Cir. 1979). Here, however, nothing in the record indicates that Ullah was subjected to further interrogation once the border agents discovered the fingerprint match indicating that Ullah had previously been removed from the United States, which triggered Ullah's arrest based on the charged illegal reentry. Nevertheless, if Ullah was questioned or made statements following the discovery of such information, and prior to the Miranda warning being given, if the District Judge does not agree that Ullah, as an unlawful alien seeking entry is not entitled to Miranda protections, those answers and statements should be suppressed.
As to Ullah's assertion that the border agents continued to unlawfully search his person and property following his arrest, Ullah's Affidavit Supporting Dismissal and Suppression ¶ 20, it is well settled that a search incident to arrest does not violate the Fourth Amendment. Illinois v. Lafayette, 462 U.S. 640, 645 (1983) (holding that under the "search incident to arrest" exception to the Fourth Amendment's warrant requirement, "[a] custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.").
In sum, Ullah points to nothing indicating that the search of Ullah's person, his belongings and vehicle, as well as the seizure of certain identification documents and the items Ullah indicated he intended to mail upon entering the United States, constituted anything other than a routine border search, which does not require either probable cause or reasonable suspicion, and to which Fourth and Fifth Amendment protections apply only where the person attempting to gain entry either is a citizen of or has substantial ties to the United States. Further nothing in the record establishes that Ullah presented any identification documents indicating that he was anything other than a Canadian citizen, or that he had substantial contacts to the United States. Accordingly, nothing in the record establishes that Ullah, upon presenting himself at the border seeking entry into the United States on December 22, 2003, was entitled to protection under either the Fourth or Fifth Amendment. As such, Ullah's request for the court to conduct a suppression hearing is DENIED and his motion to suppress should be DENIED as to any statements made before the border agents determined that Ullah's attempt to enter the United States was illegal, but, should the District Judge find that, contrary to the undersigned's recommendation, that Ullah's status is within the protection of the Fifth Amendment, as to any statements made after the interrogation became custodial in nature and before the Miranda warnings were given, the motion should be GRANTED.
6. Motion for Return of Seized Property
Ullah seeks an order from the court pursuant to Fed.R.Crim.P. 41(g) directing the Government to immediately return all property which Ullah maintains the border agents illegally seized from him either on December 22, 2003, or following Ullah's attempt to gain entry into the United States. Ullah Affidavit Supporting Return of Seized Property ¶¶ 1-4. Ullah specifically seeks to have returned his "Canadian Passport, Citizenship Card, Social Insurance Card, Canadian Driver's License, Provincial Health Card, Baja California Mexico Driver's License, and all related Citizenship records from Canada that [the Government] further obtained in violation of [Ullah's] Fourth Amendment rights." Id. ¶ 16. The Government argues in opposition to the motion that because Ullah's Fourth Amendment rights were never violated in connection with his arrest and search by the border agents at the border on December 22, 2003, Ullah is not entitled to have the items seized from him returned. Government's Response to Defendant's Motion to Return Seized Property at 1, 2-3, 5-6.
Fed.R.Crim.P. 41(g) provides that "[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return." Thus, by its own terms, a return of property under Rule 41(g) hinges upon a determination that the property was unlawfully seized. In the instant case, however, as the record does not support a finding that Ullah was subjected to any unlawful search or seizure, Discussion, supra, at 59-68, there is no basis upon which Ullah's motion seeking a return of the seized property can be granted at least until after the conclusion of the instant proceeedings. Accordingly, Ullah's motion for a return of property pursuant to Fed.R.Crim.P. 41(g) should be DENIED.
CONCLUSION
Based on the foregoing, Defendant's motion to dismiss the Indictments (Doc. No. 28), should be DENIED; Ullah's motion to dismiss the Indictment and to suppress evidence (Doc. No. 29), should be DENIED in part and GRANTED in part; Ullah's motion for discovery (Doc. No. 34), is GRANTED in part, DENIED in part, and DISMISSED as moot in part; Ullah's motion seeking in limine relief (Doc. No. 35), is DENIED; Ullah's motion for an evidentiary hearing (Doc. No. 36), is DENIED; Ullah's motion to dismiss the Superseding Indictment (Doc. No. 37), should be DENIED, and Ullah's motion for the return of seized properties (Doc. No. 54), is DENIED.
Any notice appeal of this court's order must be filed with the Circuit Clerk, United States Court of Appeals for the Second Circuit, New York, New York, within 10 days after the later of (1) the entry of either the judgment or the order being appealed; or (2) the filing of the government's notice of appeal. See Fed.R.App. 4(b)(1)(A)(i) (ii). Requests to proceed on appeal as a poor person must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.
SO ORDERED, as to motions for discovery, to sever, in limine, for an evidentiary hearing, and for return of seized property,
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation and Decision and Order be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1), and pursuant to Rule 58.2 of the Local Rules of Criminal Procedure.
DEFENDANT IS FURTHER ADVISED THAT ANY OBJECTIONS to the court's Decision and Order must be filed by notice to the Clerk of the Court within ten (10) days of entry in accordance with 28 U.S.C. § 636(b)(1), and pursuant to Rule 58.2 of the Local Rules of Criminal Procedure.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation and Decision and Order to the attorneys for the Government and the Defendant.
SO ORDERED.