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United States v. Robinson

United States District Court, District of Columbia

June 23, 2017

UNITED STATES OF AMERICA
v.
IVAN L. ROBINSON, Defendant

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

         In this criminal action, Defendant Ivan L. Robinson is charged with 61 counts of knowingly and intentionally distributing a controlled substance, oxycodone, by writing prescriptions for that drug outside the usual course of professional practice and not for a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), as well as 18 U.S.C. § 2. Defendant is also charged with two counts of money laundering and aiding and abetting. Defendant has moved under Federal Rule of Criminal Procedure 12(b)(3) to suppress certain statements Defendant made to United States Drug Enforcement Administration ("DEA") agents that were allegedly procured unconstitutionally. Upon consideration of the pleadings, [1]the relevant legal authorities, and the record as a whole, the Court DENIES Defendant's [57] Motion to Suppress.

         I. FINDINGS OF FACT

         The Court held an evidentiary hearing on Defendant's motion on May 31, 2017 and June 1, 2017. The Court then granted Defendant's motion to reconvene that hearing on June 16, 2017 for additional testimony. The Court has considered the evidence presented at all three days of the hearing. In doing so, the Court considered the demeanor and behavior of the witnesses on the stand, the witnesses' manner of testifying, whether the witnesses impressed the Court as truthful, whether the witnesses impressed the Court as having an accurate memory and recollection, whether the witnesses had any motive for not telling the truth, whether the witnesses had a full opportunity to observe the matters about which they testified, and whether the witnesses had any interest in the outcome of the case, or friendship or hostility to the other persons concerned with the case. The Court also considered the reasonableness or unreasonableness and the probability or improbability of the testimony of the witnesses in determining whether to accept it as true and accurate, as well as whether the testimony was contradicted or supported by other credible evidence. The Court has also considered the pleadings and the entire record in this case. The Court credits the testimony of the witnesses Shirley Powell, Karen Arikpo, Latonya Coates and Jerome Lee as follows.

         The Court makes the following findings of fact. The Court will first make findings of fact that are relevant to the Defendant's motion and undisputed and/or Uncontroverted by any evidence, and then make findings as to facts mat are relevant and disputed or controverted by some evidence.

         A. The Undisputed or Uncontroverted Relevant Evidence

         On June 19, 2013, Defendant Ivan Lamont Robinson approached on foot a chiropractor's office located at 2041 Martin Luther King Avenue in Southeast Washington D.C. (the "2041 MLK Office"). May 31, 2017 Hr'g Tr. at 17:2-8, 18:6-8. The 2041 MLK Office is one of multiple offices Defendant had registered with the DEA as a location of his practice. May 31, 2017 Hr'g Tr. at 15:15-23, 113:10-15.

         Defendant arrived at the 2041 MLK Office sometime shortly after 10:00 a.m. June 16, 2017 Hr'g Tr. at 101:4-11. By the time he arrived, DEA and Metropolitan Police Department ("MPD") officers were in the process of executing a search warrant inside the building. May 31, 2017 Hr'g Tr. at 15:12-23. Shirley Powell, a Diversion Investigator with the DEA, was standing outside of the 2041 MLK Office with an MPD officer. May 31, 2017 Hr'g Tr. at 16:21-17:1. Investigator Powell wore a jacket with the letters "DEA" on it. May 31, 2017 Hr'g Tr. at 17:21-18:1. She was not armed and she had no arrest powers. May 31, 2017 Hr'g Tr. at 13:2-7, 41:15-17. The MPD officer was uniformed and armed. May 31, 2017 Hr'g Tr. at 16:23-24, 60:10-15. There were also marked and unmarked police cars parked in the vicinity. May 31, 2017 Hr'g Tr. at 46:6-8. There were no lights or sirens on, and the street was not cordoned off, but the police had created a perimeter around the search and were directing traffic at times. May 31, 2017 Hr'g Tr. at 47:3-4; June 1, 2017 Hr'g Tr. at 58:6-8. Individuals who tried to enter the 2041 MLK Office during the search, such as patients, were being stopped, asked to identify themselves, and asked if they would agree to be interviewed and photographed. June 16, 2017Hr'g Tr. at99:6-22, 109:1-18.

         Detective Jerome Lee with the Arlington County Police Department was one of the individuals helping to execute the search warrant inside the 2041 MLK Office when Defendant was seen approaching by Investigator Powell. June 16, 2017 Hr'g Tr. at 71:19-21, 73:2-5. Investigator Powell called Detective Lee and told him to come outside, which he did. June 16, 2017 Hr'g Tr. at 73:18-21. Detective Lee wore ajacket that said "Police Officer, " and was armed. June 16, 2017 Hr'g Tr. at 74:15-18.

         Although the exact details of the initial conversation that Detective Lee and Investigator Powell had with the Defendant are not completely clear, the Court credits the following testimony. Detective Lee told the Defendant that they were "just here to execute a search warrant on your premises" and, importantly, that "we are not here to arrest you." June 16, 2017 Hr'g Tr. at 75:4-5. Investigator Powell told Defendant that they were "conducting a search warrant and [she] wanted to know if he didn't mind being interviewed." May 31, 2017 Hr'g Tr. at 18:14-15. Powell presented Defendant with her credentials. May 31, 2017 Hr'g Tr. at 18:19-20. Defendant responded "no problem." May 31, 2017 Hr'g Tr. at 19:1. The Court finds that at this point Defendant had an opportunity to decline to be interviewed and walk away, but opted not to.

         Detective Lee asked Defendant to come inside so that he could make a copy of his identification. June 16, 2017 Hr'g Tr. at 75:5-8. When they had entered the building, Defendant reached into his pocket to retrieve his Id. June 16, 2017 Hr'g Tr. at 75:11-14, 75:24-76:1. At that point, Detective Lee told the Defendant that he needed to pat him down for safety purposes to make sure that he did not have any weapons. June 16, 2017 Hr'g Tr. at 75:12-14, 76:1-2. During the pat down, Detective Lee felt a bulge that he concluded was currency and told Defendant to take it out of his pocket. June 16, 2017 Hr'g Tr. at 105:16-18. Defendant then reached into his own pockets and removed their contents, including the currency, his identification and other cards, two condoms, house keys and a cell phone, and placed them on a countertop in the vestibule. June 16, 2017 Hr'g Tr. at 105:24-25, 106:6-11. Detective Lee told Defendant that these items would be photographed and then returned to him, with the exception of the currency and the cell phone, which would be seized pursuant to the search warrant. June 16, 2017 Hr'g Tr. at 78:3-79:16, 116:9-18. Another law enforcement agent took Defendant's picture, in the same manner that other individuals on the premises were being photographed. June 16, 2017 Hr'g Tr. at 108:10-109:22. Detective Lee never handcuffed or otherwise restrained the Defendant. June 16, 2017 Hr'g Tr. at 86:15-17.

         By all accounts, there was a considerable law enforcement presence-including approximately 20 individuals-at the 2041 MLK Office executing the search warrant. May 31, 2017 Hr'g Tr. at 59:8-11; June 1, 2017 Hr'g Tr. at 58:1-2. That operation was being conducted in a calm and orderly fashion. June 1, 2017 Hr'g Tr. at 60:11-16. In addition to witnessing the search of the 2041 MLK Office, there was testimony that Defendant was also aware that search warrants were being executed at other locations that day, including Defendant's home, and two other business locations identified on Defendant's DEA registration, including a nearby dentist's office (2021 Martin Luther King Avenue, Washington D.C., or the "2021 MLK Office"). May 31, 2017 Hr'g Tr. at 112:14-114:2; June 1, 2017 Hr'g Tr. at 67:11-12, 67:16-69:4.

         Detective Lee told Defendant that after he made a copy of his identification and took pictures of the items that Defendant had removed from his pockets, Defendant was "free to leave, " "allowed to leave, " and that he "could leave at any time." June 16, 2017 Hr'g Tr. at 84:3-8. He explicitly told the Defendant that he did not have to stay on the premises during the execution of the search warrant, but that if he left, it was DEA policy that he would not be allowed to reenter the building during the execution of the warrant. June 16, 2017 Hr'g Tr. at 84:3-11. Defendant indicated that he wanted to stay to watch the warrant being executed. June 16, 2017 Hr'g Tr. at 84:12-17. Defendant was not surrounded by other law enforcement agents while this conversation took place. June 16, 2017 Hr'g Tr. at 88:14-17. Investigator Powell was nearby, but stood several feet back from the Defendant and Detective Lee. June 16, 2017 Hr'g Tr. at 88:1-22. After Defendant had decided to stay, he and Detective Lee, in reference to the two condoms that Defendant had produced, engaged in a casual conversation about their respective sex lives. June 16, 2017 Hr'g Tr. at 84:21-85:7. Detective Lee eventually asked Defendant "do you mind if my partners interview you?" June 16, 2017 Hr'g Tr. at 85:18-20. Defendant replied "no problem, I will talk to them." June 16, 2017 Hr'g Tr. at 85:18-20. The Court finds that Defendant again at this point had a clear opportunity to leave and not be interviewed, but voluntarily opted to stay.

         Defendant chose where the interview would take place within the 2041 MLK Office, and he led Investigator Powell to that location. May 31, 2017 Hr'g Tr. at 19:5-17, 23:6-16, 100:7-10; June 1, 2017 Hr'g Tr. at 34:3-5. He chose the office of a colleague. May 31, 2017 Hr'g Tr. at 69:11-16. Defendant's own office was being searched at the time. May 31, 2017 Hr'g Tr. at 69:24-70:3. The items that Detective Lee had told Defendant would be returned to him had not yet been returned by the time he went into this office for the interview. June 16, 2017 Hr'g Tr. at 127:23-128:2. Defendant also did not have his car keys, but not because they had been seized from the Defendant's person, but instead because he had left them in his car. See Gov.'s Ex. 8.

         Discussion did not begin immediately after Defendant and Investigator Powell arrived at the office Defendant had chosen for the interview. May 31, 2017 Hr'g Tr. at 23:17-21. Investigator Powell told Defendant that she wanted to wait for a DEA agent, Karen Arikpo (nee Karen Taylor) to arrive before beginning. May 31, 2017 Hr'g Tr. at 23:17-21. Neither Investigator Powell nor Defendant spoke during the time they were waiting. May 31, 2017 Hr'g Tr. at 24:2-14. Defendant sat in a chair near the door, and Investigator Powell sat in a chair further into the office against a wall. May 31, 2017 Hr'g Tr. at 25:21-22. An MPD officer was also in the office, and stood by the door, but enough room remained that Defendant could have passed through the open door without the officer needing to move. May 31, 2017 Hr'g Tr. at 24:15-17, 71:13-20, 100:15-23. Defendant chose where to sit on his own. May 31, 2017 Hr'g Tr. at 25:24-26:3. While the two waited for Agent Arikpo, the door to the office remained open. May 31, 2017 Hr'g Tr. at 24:22-23. Defendant was not handcuffed or otherwise restrained in any way. May 31, 2017 Hr'g Tr. at 24:18-21; June 1, 2017 Hr'g Tr. at 20:23-21:4. The Court finds that during this period Defendant had an opportunity to reconsider his decision to agree to be interviewed and to walk away-as he had already been told he was free to do-but again opted to stay.

         Agent Arikpo arrived approximately ten minutes later from the Defendant's home. May 31, 2017 Hr'g Tr. at 24:9-11. When she arrived, Agent Arikpo identified herself and presented her credentials to the Defendant. May 31, 2017 Hr' g Tr. at 26:16-17, 117:1 - 5. Agent Arikpo is employed by the MPD, but is also a Tactical Diversion Officer with the DEA Washington Field Office. May 31, 2017 Hr'g Tr. at 111:7-10. She was wearing a vest with the letters "MPD" on it, also referred to as "raid gear." May 31, 2017 Hr'g Tr. at 26:17-19, 117:4-5; June 1, 2017 Hr'g Tr. at 75:17-76:1. Unlike Investigator Powell, Agent Arikpo has arrest powers and was armed. May 31, 2017 Hr'g Tr. at 41:18-21, 111:21-22; June 1, 2017 Hr'g Tr. at 76:2-5. Once Agent Arikpo arrived, or perhaps shortly before that time, the MPD officer left the office. May 31, 2017 Hr'g Tr. at 26:22-25.

         When Agent Arikpo walked into the office she said "Hello I'm Detective [Arikpo] with the Metropolitan Police Department." May 31, 2017 Hr'g Tr. at 117:4-5. Defendant responded "Hello" and "I think I remember you." May 31, 2017 Hr'g Tr. at 117:6-7. Agent Arikpo answered "You probably do." May 31, 2017 Hr'g Tr. at 117:7. Agent Arikpo testified that Defendant may have recognized her from a previous instance when she had visited his practice in response to a complaint. June 1, 2017 Hr'g Tr. at 80:2-81:4. Investigator Powell then told Defendant why they were there and that they "just wanted to talk to him about some things that had been going on with the practice." May 31, 2017 Hr'g Tr. at 117:10-13. The Defendant responded "okay" and that "he had nothing to hide." May 31, 2017 Hr'g Tr. at 117:16. No one stood or sat between Defendant and the door. May 31, 2017 Hr'g Tr. at 27:4-8, 29:22-30:1. Defendant was not read Miranda rights. May 31, 2017 Hr'g Tr. at 118:7-12; June 1, 2017 Hr'g Tr. at 81:8-10.

         At the evidentiary hearing, the parties focused considerably on several answers that Defendant gave to certain questions during the ensuing interview. Both parties attempted to portray these answers as not being responsive to the interviewers' questions. See, e.g., May 31, 2017 Hr'g Tr. at 28:20-22, 84:25-85:2. The Court rejects this characterization of Defendant's responses. The Court finds that the responses Defendant gave were rationally connected to the questions posed and merely provided additional details to his answers. For example, when asked about his occupation, Defendant responded that he was a nurse practitioner but also volunteered information about his prior military involvement, claiming that he was the "first African or black male to take down a Mexican cartel." May 31, 2017 Hr'g Tr. at 28:24-29:4; June 1, 2017 Hr'g Tr. at 28:16-32:1. The Court finds that Defendant's response was a reasonable supplement to his answer about his occupation. The Court interprets the statement as an attempt on Defendant's part to impress or ingratiate himself with his interviewers by playing on a well-established symbiotic relationship between law enforcement and the military. This interpretation is buttressed by Agent Arikpo's description of the Defendant, which the Court credits, as "very sure of himself and "kind of cocky" during the interview. June 1, 2017 Hr'g Tr. at 23:23-24:1. It is also consistent with Investigator Powell's description of the Defendant, which the Court also credits, as "excited to talk to us" and "excited to be in the presence of law enforcement expressing his association with being in the military as a law enforcement special forces or something to that nature." May 31, 2017 Hr'g Tr. at 103:22-25.

         Similarly, when asked whether he had children, Defendant responded that he had six children, but also volunteered that he loves having sex because it helps him to eliminate stress. May 31, 2017 Hr'g Tr. at 79:20-24. This additional information is not irrelevant or nonresponsive-it is an explanation for why Defendant has six children, and one that is in line with an attempt to impress or entertain his interviewers. This conclusion is buttressed by Detective Lee's testimony that the Defendant had just engaged in a similar conversation about his sex life before the interview began. June 16, 2017 Hr'g Tr. at 84:21-85:7. When testifying before the grand jury, Agent Arikpo stated that when she learned that Defendant had six children, she had a concern because she did not know when they were going to be finished with the ...


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