United States v. France, CRIMINAL ACTION FILE NO. 1:19-cr-0103-TCB-AJB-02

UNITED STATES OF AMERICA v. NATASHA NATILE FRANCE, Defendant.

CRIMINAL ACTION FILE NO. 1:19-cr-0103-TCB-AJB-02

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

May 4, 2020

UNITED STATES MAGISTRATE JUDGE'S ORDER AND NON-FINAL REPORT AND RECOMMENDATION

Before the Court are Defendant Natasha Natile France's motion to suppress evidence, [Doc. 121], related to the warrantless search of five parcel post packages and her cell phone; her motion to suppress evidence obtained from the search of the cell phone and brief in support, [Doc. 135]; and her brief and amended brief in support of the motion to suppress the search of the parcel post packages. [Docs. 152, 153]. For the following reasons, the undersigned RECOMMENDS that the motion to suppress the warrantless search of five parcel post packages be DENIED. The Court will conduct an evidentiary hearing to develop a sufficient record before issuing a Report and Recommendation as to that motion.

I. INTRODUCTION

France is charged along with others with conspiring to make false and fictitious written statements to a licensed firearms dealer in connection with the acquisition of a firearm, in violation of 18 U.S.C. § 371 (Count One); making false and fictitious statements to a firearms dealer in connection with the acquisition of firearms, in violation of 18 U.S.C. §§ 922(a)(6) and 2 (Counts Two through Four); and causing the U.S. Postal Service to not file a shipper's Export Declaration through the Automated Export System by failing to declare that firearms and firearm parts were exported from the United States to the U.S. Virgin Islands, in violation of 13 U.S.C. § 305 and 18 U.S.C. § 2 (Counts Ten and Twelve).¹ [Doc. 1]. After pleading not guilty, France filed the pending motions.

II. MOTION TO SUPPRESS EVIDENCE FROM FIVE PARCEL POST PACKAGES

France and her codefendant Shawn Tyson also are charged with federal crimes in the District of the Virgin Islands. United States v. Tyson, No. 19-CR-0009 (D.V.I.). On April 12, 2019, France participated in an evidentiary hearing in that case before United States District Judge Curtis V. Gomez. [Doc. 153-1 (hereinafter "T_")]. No further evidentiary hearing in this District has been requested, nor does the Court conclude that one is warranted. Thus, the record of law enforcement actions with regard to the parcel packages is complete and theCourt can use the evidence presented at the hearing before Judge Gomez in recommending a resolution to France's pending motion to suppress.

A. EVIDENCE PRESENTED BEFORE JUDGE GOMEZ

The evidence at the hearing before Judge Gomez reveals that on October 23, 2018, Customs and Border Patrol ("CBP") Officer Jerry Quetel was assigned to the cargo division, which inspects all international mail coming into St. Thomas, V.I. T12. On that date, he came across a mail parcel addressed to Tyson, and the shipping label stated that the contents of the package was "Merchandise" / "Roni plastic kit." The package originated in Israel and was addressed to Tyson at St. Thomas Jet Center, North Cyril King Airport, Lindberg Bay, Charlotte Amalie, St. Thomas, Virgin Islands. T13-15. Quetel knew that a Roni kit is a type of gun accessory that gives a small handgun the look, feel, and handle of an assault weapon. T15-16. He Googled Tyson's name and discovered information about a prior firearms case. T27. As a result, he opened the package to determine if it was mislabeled or it purported to contain firearms-related merchandise, and he discovered three Roni kits. T16-17. Quetel contacted his supervisor, who instructed him to contact Homeland Security (HSI), because that agency prosecutes crimes. T17. He turned the package over to HSI. T18.

On November 14, 2018, one of Quetel's colleagues, CBP Officer Bryan McCoy, was at the main U.S. post office in St. Thomas, and while inspecting mail incoming from the continental United States, he observed a Priority Mail box addressed to Tyson. T31, 51. The box was completely sealed. T50. He asked fellow CBP Officer Sharissa Smith whether she remembered Tyson's name, and they recalled the package containing Roni kits that Quetel had intercepted. T31. They Googled Tyson's name and discovered that he was a convicted felon for trafficking firearms. Id. When McCoy manipulated the box, he and Smith heard what sounded like metal parts hitting each other. T55-56. McCoy opened the box (which had Defendant France's name and an Austell, Georgia, return address, [T38-41]), and discovered gun parts for an assault rifle (that is, lower receivers,² with obliterated serial numbers). T31, 32, 56.³ The parcel then was x-rayed, which McCoy described as "kind of an archive." T65. McCoy and Smith looked for other packages addressed to Tyson and intercepted three more. T31-32, 60. These boxes were x-rayed, which disclosed additional weapons and firearm parts. T60.

That same day, a postal employee delivered to Quetel a domestically-mailed box that was similarly addressed to Tyson. T17, 23, 24, 32. Also, McCoy and Smith brought to Quetel's attention the four boxes similarly addressed to Tyson that they located. T32. Because one of the four boxes found by McCoy and Smith had been opened and found to contain firearms parts, T26, Quetel x-rayed the package that was mailed domestically, which x-ray revealed metal parts inside that appeared to be firearm slides. T17-18. Quetel advised McCoy and Smith of his findings, and transferred that package, unopened, to them. T18, 20. They confirmed through x-ray that this package contained weapons and firearm parts. T61. Upon opening that box, it was found to contain lower receivers with obliterated serial numbers. T61. All five packages were seized. T32. The officers did not obtain a search warrant before opening or x-raying any of the packages. T24, 26.

Smith testified that, at the time of the search on November 14, 2018, regulations provided that packages coming into the Virgin Islands, except first-class mail, could be searched upon reasonable suspicion that it contained merchandise or contraband. T52; see also T68.

The five packages were delivered to Eric Oram, a United States Postal Inspector. T70. The packages sent from Atlanta were Priority Mail and ranged inweight from 7 lbs. 3 oz. to 11 lbs. 2 oz. T71-73. Oram testified that first-class mail, on the other hand, is comprised of letters, flats, and parcels that do not exceed 13 oz. T79.⁴ Oram also explained that the package containing the Roni kits was sent from Israel and arrived in CBP custody in New York, and then transmitted through the mail to St. Thomas. T75-76.

ATF Special Agent Gary Dorman, Jr., testified that he came to the Virgin Islands to execute an arrest warrant upon Tyson. T84. Tyson was not at home, and after gaining consent from a tenant to search the residence for Tyson, Dorman located a drill press and firearms parts, including a Glock Auto Sear, in the common areas.⁵ T86-87. He later obtained a search warrant to search a locked room in the home as well as to further search the residence, and as a result, firearm parts, ammunition, and the drill press were seized. T87.

B. JUDGE GOMEZ' OPINION

On December 11, 2019, Judge Gomez ruled that the November 14, 2018 warrantless searches of the Priority Mail packages between France and Tyson offended the Fourth Amendment, but that the evidence need not be suppressed pursuant to the good-faith exception to the exclusionary rule. United States v. Tyson, Crim. No. 2019-09, 2019 WL 6736212 (D.V.I. Dec. 11, 2019). Specifically, Judge Gomez noted that in United States v. Baxter, No. CR 2017-24, 2018 WL 6173880 (D.V.I. Nov. 26, 2018),⁶ he had found the search of a warrantless package between the continental United States and the Virgin Islands improper, holding that " 'where . . . law enforcement conducts warrantless searches of sealed packages sent from the United States mainland to the United States Virgin Islands, law enforcement runs afoul of the Constitution.' " Tyson, 2019 WL 67336212, at *2 (quoting Baxter, 2018 WL 6173880 at *17). Finding no material difference between the searches in Baxter and Tyson, Judge Gomez concluded that the same ruling applied. In so ruling, Judge Gomez distinguished the Third Circuit's decision in United States v. Hyde, 37 F.3d 116, 117 (3d Cir. 1994), where the court had held that routine customs searches of personsand their belongings without probable cause as they leave the Virgin Islands for the continental United States are not unreasonable under the Fourth Amendment. Tyson, 2019 WL 67336212, at *2 (citing Baxter, 2018 WL 6173880 at *17). Instead, Judge Gomez concluded that the Third Circuit has never extended that exception to the warrant requirement for items or persons traveling from the mainland to the United States Virgin Islands, id., and therefore declined to extend Hyde to items transported from the mainland to the Virgin Islands. Id. Nonetheless, Judge Gomez applied the good-faith exception, noting that prior to Baxter, "this Court appeared to presume that travel of persons and things between the United States Virgin Islands and the United States mainland in either direction and in any circumstance was, for Fourth Amendment purposes, identical to travel between foreign soil and United States sovereign territory." Id. at *3 (citations omitted). Judge Gomez issued his Baxter decision 12 days before the warrantless search of the Priority Mail packages, and thus the CBP officers were entitled to rely on the previous decisions. Id. at *4.

C. ARGUMENTS OF THE PARTIES

The Government argues that the fruits of the warrantless searches should not be suppressed on the strength of Hyde, which held, based on United States v. Ramsey, 431 U.S. 605 (1977), that the border-search exception to the FourthAmendment applied to the internal border between the continental United States and the territory of the Virgin Islands. [Doc. 137 at 2]. It also argues that the decision of another judge in the...