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: ...