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United States v. Avitan

United States District Court, District of Columbia

October 4, 2018

UNITED STATES OF AMERICA
v.
YOSSI AVITAN, Defendant

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         In this criminal action, Defendant Yossi Avitan is charged with Conspiracy to Operate an Unlicensed Money Transmitting Business in violation of 18 U.S.C. §§ 2, 371, and 1960(b)(1)(A), (B), and (C). Defendant has moved under Federal Rule of Criminal Procedure 12(b)(3) to suppress certain statements Defendant made to law enforcement agents that were allegedly procured unconstitutionally. The government has indicated that it does not intend to use Defendant's statements during its case in chief but does want the option of using the statements for impeachment. Defendant argues that the government cannot use the statements, even for impeachment, because they were obtained involuntarily in violation of the Due Process Clause. Because the government will not use the statements during the case in chief, the Court need only determine if the statements were obtained voluntarily as required by the Due Process Clause. See Oregon v. Hass, 420 U.S. 714, 723-24 (1975) (allowing statements obtained in violation of Miranda to be used for impeachment if there is no evidence that the statements “were involuntary or coerced”).

         Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court DENIES Defendant's Motion to Suppress. The Court concludes that the statements were made voluntarily under the Due Process Clause.

         I. FINDINGS OF FACT

         The Court held an evidentiary hearing on Defendant's motion to suppress on August 27, 2018 and September 5, 2018. The Court has considered the evidence presented at both 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 Joseph Lewis, Daniel Harding, and Yossi Avitan 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 that are relevant and disputed or controverted by some evidence.

         A. The Undisputed or Uncontroverted Relevant Evidence

          Beginning in the Summer of 2015, United States law enforcement agents began investigating an allegedly illegal money transmitting service. August 27, 2018 Hr'g Tr. at 5: 1. On March 2, 2017, arrests took place in the United States and in Israel involving the allegedly illegal money transmitting service. Id. at 5: 8-11. Defendant Yossi Avitan was not arrested at that time because law enforcement anticipated his presence at a residence in Miami, Florida, but he was not there. Id. at 5: 21-25. Instead, Defendant was in Morocco, a country which does not have an extradition treaty with the United States. Id. at 9: 21-10: 2. Defendant knew that United States law enforcement would be unable to reach him while he was in Morocco. Id. at 111: 4-6.

         About two to three days after the initial arrests took place, Defendant was told about at least some of the arrests by the wife of Itzhak Salama, another defendant in this case. Id. at 103: 9-12. Approximately three months after speaking with Defendant Salama's wife, Defendant spoke with Moshe Mazor, an Israeli attorney who is Defendant's friend. Id. at 90: 18-20. Mr. Mazor went to Morocco and told Defendant more about the March 2, 2017 arrests. He showed Defendant the indictment and explained that Defendant was one of the people in the indictment. Id. at 90: 22-25.

         Following the conversation with Mr. Mazor, on August 8, 2017, Defendant called Federal Bureau of Investigation Special Agent Joseph Lewis. Id. at 91: 6-9. This call was Agent Lewis's first contact with Defendant. Id. at 6: 6-9. When Agent Lewis received the call he was in the office of Assistant United State Attorney Diane Lucas. Id. at. 6: 12-13. Agent Lewis had an appointment and could not speak at that time, so he asked Defendant to call him back the next morning. Id. at 7: 13-16.

         Defendant called back Agent Lewis the next morning. Id. at 7: 17-20. Defendant indicated that he had seen a piece of paper which had both the Agent's name and number and the Defendant's name on it. Defendant stated that he was calling to determine why Defendant's name was on this piece of paper. Id. at 6: 20-24. Defendant further explained that he had heard that agents had come to his home in Miami and told individuals at the home that “[t]he guy had some problems.” Id. at 7: 1-5. Defendant stated that he was worried that he might be the individual to whom the agents were referring. Id. at 7: 4-6. Defendant indicated that he wanted to come to the United States to speak further about the matter. Id. at 8: 10-14. Agent Lewis asked Defendant if he had a lawyer; Defendant replied in the negative. Id. at 8: 19-22. This conversation occurred in English. Id. at 7: 23. The August 8, 2018 and the August 9, 2018 phone calls were later memorialized in an FBI 302 memorandum. Id. at 77: 18.

         Over the next few days, Agent Lewis and Defendant communicated over the phone regarding Defendant's travel logistics. Id. at 9: 6-8. These conversations occurred in English over voice calls and text messages. Id. at 19: 21-22. Agent Lewis believed that Defendant was coming to the United States to cooperate with the authorities. Id. at 46: 12-13. In order to ensure that Agent Lewis could take custody of Defendant when he arrived in the United States, Agent Lewis coordinated an emergency Special Public Benefit Parole (“SPBP”). Id. at 9: 2-11. Under the SPBP, Defendant had to enter the United States through Washington, D.C. Id. at 9: 9-11.

         On August 22, 2107 Defendant arrived at Dulles Airport in Virginia. Id. at 10: 3-5. Agent Lewis went to the airport with U.S. Treasury Department Special Agent Daniel Harding to meet Defendant. Id. at 10: 14-16. The agents were allowed to wait in the Customs and Border Patrol area. Id. at 11: 1-4. When Defendant arrived, he first went through primary inspection, which is the security that every person who enters the United States must go through. Id. at 11: 5-9. Defendant next went through a secondary screening area where he was asked questions by law enforcement. Id. at 11: 18-20. The agents could partially overhear the conversation between the law enforcement official and Defendant in the secondary screening area, and the conversation occurred in English. Id. at 12: 19.

         After the secondary screening was complete, Defendant was released to the custody of the agents. Id. at 12: 24-25. The agents looked for a quiet, secluded place in the airport where they could talk to Defendant. Id. at 13: 7-9. They found a location where no one was sitting and escorted Defendant there. Id. at 13: 9-11. Defendant was not handcuffed, and he was free to move about. Id. at 13: 25. Once seated, the agents explained some of the documents they had and showed Defendant his arrest warrant. Id. at 14: 6-10.

         The agents next showed Defendant the FBI's form for Waiver of Right to Presentment Without Unnecessary Delay. Id. at 15: 3-4. The form advised Defendant that he had a right to be taken to a court without unnecessary delay where a judge would advise him of his rights and charges against him. One of those rights is the right to an attorney. Id. at 16: 4-9. Agent Lewis read the entire form aloud to Defendant. Id. at 16: 11-12. Defendant did not ask to be taken to a judge after the form was read to him. Id. at 16: 13-14. Agent Lewis, Agent Harding, and Defendant signed the form. Id. at 15: 8-11.

         Agent Lewis next used the FBI's Advice of Rights form to read Defendant his Miranda rights. Id. at 16: 18-19. The form advised Defendant that he had a right to be silent and that anything he said could be used against him. The form also advised Defendant of his right to an attorney. Agent Lewis sat next to Defendant and told him that he would read the form to him. Id. at 18: 1-5. The form was positioned so that both Agent Lewis and Defendant could read it. Id. at 18: 1-5. Agent Lewis read the first few lines, then asked defendant to read a line, so that Agent Lewis would know that Defendant could read in English, which Defendant did. Id. at 18: 1-5. After this, Agent Lewis read the rest of the form aloud with Defendant next to him. Id. at 18: 13. After having the form read to him, Defendant did not say that he wanted a lawyer or that he would not speak with the agents. Id. at 18: 24- 19: 3. Agent Lewis, Agent Harding, and Defendant signed the form. Id. at 17: 6-10.

         An Advice of Rights form translated into Hebrew was not provided to Defendant. Id. at 19: 13-15. Agent Lewis testified that he knew that Hebrew was Defendant's first language. But, based on his prior conversations with Defendant, he thought that Defendant “spoke English very well.” Id. at 19: 17-22; Id. at 51: 12-14. Defendant never told the agents that he did not understand the forms or that he did not understand what his rights were. Id. at 20: 2-7.

         After Defendant had been advised of his rights, the agents asked Defendant if he wanted them to contact the Israeli or Moroccan embassies for him. Defendant declined. September 5, 2018 Hr'g, Tr. at 10: 12-24. The agents then advised Defendant that they were going to go to a hotel where they could talk with him privately. August 27, 2018 Hr'g Tr. at 21: 1-3. On the way to the hotel, Defendant indicated that he was hungry. Id. at 21: 7-8. The agents took Defendant to a Wegmans grocery store so that Defendant could get kosher food. Id. at 21: 9-12. While in the car on the way to the grocery store and later to the hotel, Defendant and the agents engaged in small talk not directly related to the case. Id. at 21: 19-20. The conversations were in English, and Agent Lewis testified that Defendant did not appear to have any trouble communicating or understanding what was said in English. Id. at 22: 8-11.

         Following the trip to the grocery store, the agents took Defendant to the hotel. Id. at 23: 2-3. The hotel suite had two bedrooms, two bathrooms, and a common living space. Id. at 23: 12-13. The agents shared one of the bedrooms and one of the bathrooms. Defendant had one of the bedrooms and one of the bathrooms for himself. Id. at 23: 14-17. Once in the hotel suite, the agents and Defendant engaged in some basic conversation in English. Id. at 23: 20-24. The agents also inventoried what Defendant had brought with him and took possession of his passports. Id. at 24: 1-6.

         After this, Defendant went to his private bedroom. Agent Lewis and Agent Harding split the night with one of them sleeping and one of them staying awake in the common area. Id. at 24: 14-18. This was done both for Defendant's safety and to ensure that Defendant did not leave the hotel during the night. Id. at 24: 24-25: 10.

         The next morning, August 23, 2018, the agents and Defendant had breakfast at the hotel, then returned to the room. Id. at 25: 13-16. Prior to asking Defendant questions, the agents reviewed Defendant's rights with him. First, the agents showed Defendant the form for Waiver of Right to Presentment Without Unnecessary Delay that he had signed the previous evening. Id. at 37: 14-16. The agents reviewed the form with Defendant, and he signed it again. Id. at 37: 15-16. The agents then gave Defendant a new form, the Continuing Waiver of Rights to Prompt Presentment for a Magistrate Judge Following Arrest. Id. at 37: 4-7. This form advises defendants of their right to be taken to a judge without unnecessary delay. It also briefly advises defendants of their right to an attorney and their right to remain silent. Id. at 38: 21- 39: 10. The agents summarized the form for Defendant, reviewed parts of it, and asked him to sign it. Id. at 37: ...


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