Opinion
No. 04-CR-45E.
February 16, 2006
REPORT, RECOMMENDATION AND ORDER
Pursuant to 28 U.S.C. § 636(b)(1), all pretrial matters in this case were referred to the undersigned by the Hon. John T. Elfvin. Dkt. #12.
PRELIMINARY STATEMENT
The defendant, Joseph Ciardullo ("the defendant"), has been indicted in a three count indictment for knowingly, willfully and unlawfully combining, conspiring and agreeing together with others, unknown, to commit an offense against the United States, that is, to import into the United States from Canada 100 kilograms or more of a mixture and substance containing marijuana, a Schedule I controlled substance, in violation of Title 21 U.S.C. §§ 952(a), 960(1)(1) and 960(b)(2)(G), all in violation of Title 21 U.S.C. § 963, and did knowingly, willfully and unlawfully make a materially false, fictitious and fraudulent statement and representation to officers of the United States Customs and Border Protection in violation of Title 18 U.S.C. § 1001(a)(2). Dkt. #6.
Pursuant to this Court's Scheduling Order, voluntary discovery was to be completed by April 23, 2004, and pretrial motions, both dispositive and non-dispositive, were to be filed by May 21, 2004. Dkt. #8. In accordance with that Order, the defendant filed an omnibus motion in which he sought, inter alia, leave to file additional motions in the event that the ongoing investigation or the government's response to his motion revealed information which necessitated further motions. Dkt. #17, p. 28. The Court granted the motion subject to that limitation. Dkt. #29, pp. 11-12.
In the instant motion, defendant seeks suppression of oral statements made on February 29, 2004 and March 1, 2004, at the Lewiston Bridge Port of Entry on the ground that the questions put to defendant exceeded the scope of a routine examination by the secondary inspector. Dkt. #36. At oral argument, the government argued that defendant's motion should be denied because it was filed beyond the deadline set forth in the Court's scheduling order. However, defense counsel asserted that the statements sought to be suppressed were not disclosed until defendant's omnibus motion had already been filed. The government also argues that defense counsel was aware, by virtue of the detailed affidavit in support of the Criminal Complaint, that his client made a variety of statements to government agents. Dkt. #39, ¶ 5. At oral argument, defense counsel responded that he was unable to assess the appropriateness of a motion to suppress prior to receiving copies of the statements sought to be suppressed. The government did not dispute that additional information was disclosed subsequent to the deadline set forth in this Court's scheduling order and its response to defendant's omnibus motion indicates that "[a]ll written and recorded statements of a [sic] defendant have been provided or will be provided, as well as the substance of any oral statements made by the defendant before and after arrest in response to interrogation by any person known to the defendant to be a Government agent." Dkt. #20, ¶ 6 (emphasis added). Accordingly, the Court will not reject defendant's motion to suppress as untimely.
FACTUAL BACKGROUND
According to the affidavit of Douglas E. Bort, Special Agent for U.S. Immigration and Customs Enforcement, submitted in support of the Criminal Complaint initiating these proceedings, the defendant arrived at the Lewiston Bridge Port of Entry at approximately 9:21 p.m. on February 29, 2004, completed a written declaration CF6059b and presented a manifest showing six skids of pool pumps and parts destined for Patterson, New Jersey before being directed to secondary inspection for a Vehicle and Cargo Inspection System ("VACIS"), scan, which revealed an anomoly in the load. Dkt. #1, ¶ 3.
Physical examination of the load revealed approximately 1,091.7 pounds of marijuana concealed in boxes co-mingled with the manifested load of pool parts. Dkt. #1, ¶ 3. During the search of the truck by Special Agent Bort, additional documents were discovered in the cab of the truck, including an invoice indicating that the pool parts were destined for Patterson, New York [sic]; a bill of lading indicating that the pool parts were destined for McHenry, IL; and a log book filled out by the defendant beginning February 2, 2004 and ending February 29, 2004. Dkt. #1, ¶ 4. Special Agent Bort also discovered, inter alia, an atlas opened to a map of Indiana and Chicago, Illinois, in a black duffel bag found in the truck. Dkt. #1, ¶ 4.
In response to questioning by CBP officers, the defendant stated that he picked up the load from the ABLE terminal in Brampton, Ontario; that he signed the manifest which had already been completed by another individual; and that he completed his own logbook. Dkt. #1, ¶ 6.
At approximately 11:00 p.m., Special Agents Bort and Dombek obtained biographical data from the defendant, including name, address, criminal history and employment. Dkt. #1, ¶ 7. The defendant indicated that he was a part-time driver for ABLE Freight; had driven for ABLE for approximately three years on a seasonal basis; had last hauled a load for ABLE in mid-February; and identified two ABLE dispatchers by name. Dkt. #1, ¶ 7. At that point, Special Agent Bort read the defendant his Miranda warnings from a pre-printed card. Dkt. #1, ¶ 8. The defendant responded "yes," when asked if he understood his rights and responded "yes," when asked if he wished to waive his rights. Dkt. #1, ¶ 8. The defendant then made numerous statements, including the allegedly false statement charged in the third count of the indictment, to wit, that his load was destined for New Jersey. Dkt. #1, ¶ 11; Dkt. #6. Special Agent Bort terminated the interview when the defendant declined to permit a consensually monitored telephone call on his cellular telephone to confirm his statements concerning the nature of the incoming calls from an ABLE dispatcher and his denial of knowledge of the marijuana discovered in his truck and asked for an attorney. Dkt. #1, ¶ 15.
See Miranda v. Arizona, 384 U.S. 436 (1966).
DISCUSSION AND ANALYSIS
Necessity for a Suppression HearingIn order to warrant a suppression hearing, the defendant must demonstrate a specific factual dispute that can be resolved by a hearing. See United States v. Mathurin, 148 F.3d 68, (2d Cir. 1998) (evidentiary hearing required where defendant averred that he was never given Miranda warnings); United States v. Richardson, 837 F. Supp. 570, (S.D.N.Y. 1993) (evidentiary hearing not required where defendant failed to make specific factual allegations of illegality based upon personal knowledge but defense counsel merely alleged that defendant did not knowingly waive his rights before answering questions); United States v. Ahmad, 992 F. Supp. 682, 685 (S.D.N.Y. 1998) (affidavit of defense counsel seeking suppression of custodial statements for failure to provide Miranda warnings insufficient to warrant evidentiary hearing or suppression).
In the instant case, the defendant does not challenge the sequence of events or factual details of the government agent's inquiries and the defendant's response as set forth in Special Agent Bort's affidavit in support of the Criminal Complaint. The defendant also does not deny Special Agent Bort's averment that he received Miranda warnings, acknowledged his rights, agreed to waive them, answered certain questions, and thereafter, asserted his right to counsel. Furthermore, the defendant has failed to point out any contradictions within the reports disclosed by the government. Thus, the defendant has failed to demonstrate a material factual dispute which would necessitate an evidentiary hearing. Admissibility of Statements Miranda warnings do not have to be given to one detained at the border for purposes of being 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).
As the Supreme Court stated in Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925), the rationale behind a routine customs inquiry is that "national self protection reasonably requir[es] one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in." See also United States v. Ramsey, 431 U.S. 606, 616, 97 S.Ct. 1972, 1978, 52 L.Ed.2d 617 (1977) (border searches are considered reasonable "pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country. . . ."). Such routine detention and questioning is an inevitable burden commonly associated with border crossings and falls within the language of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which excludes from the warning requirements established therein certain "[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process" because the "compelling atmosphere inherent" in custodial interrogation "is not necessarily present." 384 U.S. at 477-78, 86 S.Ct. at 1629-30; see Chavez-Martinez v. United States, 407 F.2d 535, 538-39 (9th Cir.), cert. denied, 396 U.S. 858, 90 S.Ct. 124, 24 L.Ed.2d 109 (1969); cf. United States v. Henry, 604 F.2d 908, 915 (5th Cir. 1979) ("[t]he Miranda requirement is not . . . applicable to every situation where law enforcement officers are asking questions.").Id. at 47. However, Miranda warnings are required "when the questioning of the official becomes an interrogation that is custodial in nature and is one in which `information is sought for the purpose of using it against [a] person in a criminal proceeding.'" Silva, 715 F.2d at 47-48, quoting Moody, 649 F.2d at 127; see also United States v. Kiam, 432 F.3d 524, 530 (3d Cir. 2006) ( Miranda warnings are required "[i]f the inspector's questions objectively cease to have a bearing on the grounds for admissibility and instead only further a potential criminal prosecution.").
In Moody, for example, the Court of Appeals opined that defendant's Miranda rights were violated and her statement, "it is heroin," was inadmissible because the response was elicited for the purpose of incriminating her where the defendant was expressly questioned in a private room as to the contents of a plastic bag containing a powdery substance which she removed from her girdle during a pat down by Customs Officers at the International Arrivals Building at Kennedy Airport. Moody, 649 F.2d at 128. Similarly, in United States v. Pigott, the Hon. William M. Skretny agreed with the Magistrate Judge that defendant's response to the question, "You're Allan Piggott, aren't you?" be suppressed because the Customs Inspector had examined the passport defendant proffered under a microscope and observed evidence of tampering, providing probable cause to believe that defendant had presented an altered passport and had confirmed defendant's identity through FBI fingerprint comparison, so that questioning of the defendant regarding his identity could no longer be considered permissible pedigree questioning, but was instead an attempt to elicit incriminating information to bolster the false passport and false statement charges. 1994 WL 228626, No. 93-CR-199S (W.D.N.Y. May 16, 1994). The Court expressed particular concern that "[i]f government agents were permitted to continue to investigate the suspect's identity by asking him to answer various questions and complete various forms without providing him adequate Miranda warnings, there is theoretically no end to the number of charges that may be brought against him." Id. at *10.
In the instant case, the sequence of events as set forth in Special Agent Bort's affidavit in support of the Criminal Complaint fail to suggest any attempt by government agents to bolster their criminal prosecution by eliciting incriminating information from the defendant without affording him the benefit of Miranda warnings. Contrary to the defendant's argument, the information elicited from the defendant prior to the administration of Miranda warnings, to wit, pedigree, employment history and information regarding the origin, contents and destination of the load he was carrying, as well as the paperwork required for such a load, fall squarely within the realm of routine customs inquiry. Special Agent Bort than read the Miranda warnings to the defendant from a pre-printed card and received an affirmative response to his inquiry as to whether the defendant understood his rights and wished to waive them. Dkt. #1, ¶ 8. The defendant's understanding of his constitutional rights with respect to questioning by government agents is confirmed by his refusal to permit government agent's to monitor a call to the ABLE dispatcher who had been calling defendant's cellular telephone and his request for an attorney. Dkt. #1, ¶ 15. Thus, the totality of the circumstances demonstrate that defendant's post- Miranda statements to law enforcement officers were knowing, intelligent and voluntary. See Moran v. Burbine, 475 U.S. 412, 421 (1986).
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that defendant's motion to suppress oral statements (Dkt. #36), be DENIED.
Accordingly, pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report, Recommendation and Order be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report, Recommendation and Order must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with the above statute, Fed.R.Crim.P. 58(g)(2) and Local Rule 58.2.
The district judge will ordinarily refuse to consider de novo, arguments, case law and/or evidentiary material which could have been, but were not presented to the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Judge's Order. Thomas v. Arn, 474 U.S. 140 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 58.2 of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 58.2, or with the similar provisions of Rule 58.2 (concerning objections to a Magistrate Judge's Report, Recommendation and Order), may result in the District Judge's refusal to consider the objection.