United States v. Walia

UNITED STATES OF AMERICA, v. TUSHAR WALIA, Defendant.

14-CR-213 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: July 18, 2014

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

On April 10, 2014, Defendant Tushar Walia was charged in a two-count indictment with conspiracy to distribute and possess with intent to distribute a controlled substance, and attempted possession with intent to distribute a controlled substance, which substance contained XLR11, in violation of Title 21, United States Code, Section 846, and Title 18, United States Code, Sections 2 and 3551 et seq. On June 26, 2014, Defendant was charged in a five-count superseding indictment with conspiracy to distribute and possess with intent to distribute a controlled substance, attempted possession with intent to distribute a controlled substance, possession with intent to distribute a controlled substance, conspiracy to import a controlled substance, and importation of a controlled substance, which substance contained XLR11, in violation of Title 21, United States Code, Sections 841(a)(1), 846, 952(a), 960(a)(1), 963, and Title 18, United States Code Sections 2 and 3551 et seq. On May 17, 2014, Defendant moved to suppress post-arrest statements and tangible evidence obtained after a search of his cellular telephone and certain packages, and to suppress photographic identifications of him made by witnesses. The Court held an evidentiary hearing on June 10, 2014. For the reasons discussed below, Defendant's motion to suppress is denied in its entirety.

I. Background

a. Facts alleged in the Complaint

According to the Complaint filed on March 12, 2014, in support of an application for an arrest warrant for Defendant, on or about March 6, 2014 and again on March 8, 2014, agents from Homeland Security Investigations of the United States Department of Homeland Security ("HSI"), detained a total of eight suspicious packages (four on each day), which packages had been shipped from China and were destined for a storage locker in Queens, New York, rented by "Anup Shah" (the "Detained Packages").¹ (Compl. ¶¶ 1-2.) The packages contained a substance that was tested and determined to contain XLR11, a synthetic cannabinoid, which is a Schedule I controlled substance. (Id.)

On or about March 9, 2014, and March 10, 2014, agents showed photographic arrays, containing six photographs, to five individuals, all of whom identified Defendant as the individual known to them as Anup Shah. (Gov. Mem. Opp. Mot. to Suppress ("Gov. Opp.") at 4-5.)

On or about March 11, 2014, HSI agents delivered the Detained Packages to the storage locker and conducted surveillance. (Compl. ¶ 4.) The agents observed Defendant collect the packages from the storage locker and subsequently placed Defendant under arrest. (Id. ¶¶ 4-6.) After HSI agents read Defendant his Miranda rights, Defendant admitted that he used the name Anup Shah as an alias. (Id. ¶ 6.) Defendant also stated that he believed the packages contained synthetic cannabis and that he had received approximately 10 to 12 packages each week since early 2013, earning approximately $20,000 to reship the packages to various addresses inCalifornia. (Id.) Shortly after his arrest, agents searched the packages Defendant obtained from his storage locker (the "Previously Detained Packages") and Defendant's cellular telephone, pursuant to Defendant's written consent and determined that the Previously Detained Packages contained XLR11. (Id. ¶¶ 7-8.)

b. Motion to suppress

On May 17, 2014, Defendant moved to suppress all statements and tangible evidence obtained during the March 11, 2014 custodial interrogation, and to exclude the photographic identifications of Defendant made by the witnesses. (Def. Mot. to Suppress Statements and to Exclude Admission of Suggestive Identification Evidence ("Mot. to Suppress"), Docket Entry No. 14.) Defendant requested an evidentiary hearing on both of these issues.

i. Defendant's submission in support of the motion

Defendant argued that the statements and evidence obtained during the March 11, 2014 custodial interrogation should be suppressed because the government did not obtain a knowing and voluntary waiver of Defendant's Miranda rights before interrogating him. (Mot. to Suppress 4.) Counsel for Defendant submitted a declaration in support of Defendant's motion stating that Defendant "does not recall being administered his Miranda warnings [and] [he] did not voluntarily waive his right to the assistance of counsel before speaking to the government." (Id. at 2.) The affidavit further stated that Defendant "does not recall" giving consent for federal agents to search the Previously Detained Packages or his cellular telephone. (Id.)

Defendant also argued that the Court should suppress two photographic array procedures conducted by the government as impermissibly suggestive. (Id. at 5-6.) Defendant asserted that the photographic arrays were "suggestive on their face" because the other photographs in the array bore little resemblance to Defendant and because his photograph was the only one in thearrays "with a dark background." (Id. at 6.) Defendant requested an evidentiary hearing to inquire into the photographic array identifications, arguing that "[w]ithout an evidentiary hearing, the Court [had] no basis to evaluate the manner of presentation by the officers, how the array was constructed and what instructions were given before and after the purported identifications were made." (Id. at 6 (internal quotation marks omitted).) Defendant also argued that it was "unclear whether the agent[] had any description [of the Defendant] from which to construct a photo array." (Id.)

ii. Government's response in opposition to the motion

The government sought denial of the suppression motion without an evidentiary hearing. (Gov. Opp. 12, 22.) The government argued that, as a matter of law, Defendant was not entitled to an evidentiary hearing because he "fail[ed] to support his factual allegations with an affidavit from a witness with personal knowledge" and thus "a material factual dispute does not exist and a suppression hearing need not be held." (Id. at 14.) The government further argued that the declaration submitted by Defendant's counsel, absent personal knowledge, was insufficient to create a factual dispute as to whether Defendant voluntarily and knowingly waived his Miranda rights to justify a suppression hearing. (Id.) In addition, the government argued that because counsel claimed that Defendant could "not recall" whether he had been administered Miranda warnings or given consent to search his cellular telephone and the Previously Detained Packages, his failed memory to recall these events was insufficient, even if true, to create a disputed fact. (Id. at 15.)

The government argued that even if Defendant could not recall whether he waived his Miranda rights or provided consent to search his cellular telephone and the Previously Detained Packages, certain evidence including the contemporaneous notes by Special Agent Kyler Hardinwho was involved in the investigation and arrest of Defendant, a copy of the Consent to Search form bearing Defendant's signature, and a sworn affidavit by Hardin detailing Defendant's Miranda waiver and consent to search demonstrated that Defendant did waive his Miranda rights and consented to the searches of his cellular telephone and the Previously Detained Packages. (Id. at 15-16.) The government also submitted the transcript of a telephone call between Defendant and his girlfriend, which took place days after Defendant's arrest, in which Defendant "acknowledges giving his consent to search his cellular telephone." (Id. at 16.)

As to Defendant's motion to suppress the photographic arrays, the government argued that it should also be denied without a hearing because the photographic arrays were not unnecessarily suggestive on their face, and because the government presented evidence attesting that the manner in which the arrays were presented was not unnecessarily suggestive. (Id. at 22.) In particular, the government argued that Defendant's photograph did not stand out from the others even though it had a dark background, because the backgrounds in the photographs ranged in color, the lighting in the photographs varied, and the length of the facial hair on each man depicted was also varied. (Id. at 25.)

iii. The Court's June 5, 2014 decision

On June 5, 2014, the Court granted in part and denied in part Defendant's motion to suppress his statements, tangible evidence and the photographic identifications. (Memorandum and Order dated June 5, 2014, Docket Entry No. 17.) The Court denied Defendant's motion to suppress his statements and evidence obtained from his cellular telephone and the Previously Detained Packages without a hearing. (Id. at 5.) The Court explained that an evidentiary hearing "is not required if the defendant's papers in support of the motion to suppress do not create a dispute over a material fact." (Id. at 3.) The Court found that because Defendant failed tosupport his factual allegations with an affidavit from a witness with personal knowledge, he failed to dispute the government's assertion that he was read his Miranda warnings, knowingly waived those warnings, and gave consent to search. (Id. at 4.) The Court also found that even assuming Counsel's statement was sufficient to oppose the motion, the fact that Defendant could not recall being administered his Miranda warnings was "insufficient to contest the government's assertion, as set forth in the Complaint, that Defendant orally waived his Miranda rights," and Counsel's allegation that Defendant did not recall giving consent to search his cellular telephone or the Previously Detained Packages did not "contradict the government's claim that Defendant did consent to the search of the packages and the cellular telephone . . . ." (Id. at 4.)

The Court granted Defendant's request...