United States v. Zhukov

537 F.Supp.3d 431

UNITED STATES of America,

v.Aleksandr ZHUKOV, Defendant.

18-CR-633(EK)

United States District Court, E.D. New York.

Signed May 3, 2021

Saritha Komatireddy, Government Attorney, Alexander Mindlin, Artie McConnell, Michael T. Keilty, United States Attorney's Office, Brooklyn, NY, for United States of America.

Andrew James Frisch, Schlam Stone & Dolan LLP, Zachary Margulis-Ohnuma, Benjamin Notterman, ZMO Law PLLC, Andrew Leopoldo Mancilla, Mancilla & Fantone, LLP, New York, NY, Abraham Rubert-Schewel, Tin Fulton Walker & Owen, PLLC, Durham, NC, Oksana Glavatska Tuncer, Franklin Lakes, NJ, for Defendant.

MEMORANDUM & ORDER

ERIC KOMITEE, United States District Judge:

At the request of the United States government, Bulgarian law enforcement arrested Aleksandr Zhukov, a Russian national, in Varna, Bulgaria in 2018. Bulgarian officials also conducted a search of Zhukov's apartment at the time of his arrest. During the search, Zhukov made certain statements in response to questions posed by Bulgarian officials. Zhukov was subsequently extradited to the United States to face wire-fraud charges, among other charges. The government seeks to introduce the statements he made during the search into evidence at Zhukov's upcoming trial before this Court.

Zhukov moves to suppress the statements on the basis that they were obtained in violation of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As discussed below, Miranda does not generally apply to statements taken by foreign officials; but there is an exception for statements obtained in the course of a "joint venture" effectuated in tandem with United States law enforcement. Zhukov argues that this exception applies here.

The Court held a fact hearing at which the parties elicited testimony from two witnesses — one each from Bulgarian and U.S. law enforcement. Based on that testimony, the documentary record before the Court, and the submissions of the parties, I now hold that the statements at issue here were not obtained pursuant to a joint venture between United States and Bulgarian law enforcement. I therefore deny the motion to suppress.

I. Background

Bulgarian police officers searched Zhukov's apartment in Varna on November 6, 2018, and arrested him. Search and Seizure Report at 2, ECF No. 278-2. Leading the team of Bulgarian police was Vladimir Dimitrov, then the Inspector of the Cybercrime Department of Bulgaria's General Directorate for Combatting Organized Crime ("GDBOP"). Declaration of Vladimir Dimitrov ¶ 1 ("Dimitrov Decl."), ECF No. 249. The arrest and search were carried out at the request of United States law enforcement by way of a Mutual Legal Assistance Treaty ("MLAT") request. See MLAT, ECF No. 228-1. The parties agree that no independent Bulgarian investigation existed. See Gov't Post-Hearing Brief at 21, ECF No. 279.

Among other things, the United States’ MLAT request asked Bulgarian officials to "[c]oordinate the scheduling of all searches and interviews with FBI Legal Attaché, Jack Liao" and to permit Liao to be present for, and participate in, the search and interview of Zhukov. Id. at 8. The MLAT also requested that certain electronic devices and other property be seized, if identified during the search. Id. at 7-8.

During the search, Dimitrov asked Zhukov questions about various items recovered, such as "is this cell phone yours," and "is this computer yours." Suppression Hearing Tr. 21:13-15 ("Tr"), ECF No. 274. According to testimony that Dimitrov would offer at the upcoming trial here, Zhukov responded in the affirmative, indicating that he owned all of the devices and documents seized. Def.’s Motion to Suppress at 1, ECF No. 205.¹ It is this testimony that the defense now moves in limine to suppress.

FBI Special Agents Evelina Aslanyan and Christopher Merriman flew from New York, along with an Assistant U.S. Attorney still assigned to this case, timing their travel to coincide with the search and arrest. Tr. 95:20-24. Special Agent Aslanyan attended the search, but only as an "observer"; Dimitrov testified that she asked no questions whatsoever during the search. Tr. 22:3-21; see also Search and Seizure Report at 4 (Aslanyan "was present during the search as an observer, without taking part in it"). Following Zhukov's arrest, however, Special Agents Aslanyan and Merriman conducted their own interview of Zhukov, after administering Miranda warnings, at the GDBOP office in Varna. FBI FD-302 Report, ECF No. 237.

There was thus some level of coordination between Bulgaria and the U.S. to carry out the search, arrest, and post-arrest interview. At issue here, however, is whether or not the U.S. officials, as part of that coordination, directed Dimitrov to ask questions attendant to Zhukov's arrest — that is, the questions Dimitrov asked during the search of Zhukov's apartment.

Prior to the November 6 search and arrest, American law enforcement had engaged in extended discussions about whether and how Zhukov could be arrested, questioned, and extradited to the United States. In the course of these discussions — and, indeed, in the formal MLAT request itself — the Americans were initially explicit about their desire to coordinate with Bulgarian law enforcement regarding the questioning that Bulgarian law enforcement would conduct. In an October 7, 2018 email exchange with legal attaché Liao, FBI Special Agent Merriman wrote that U.S. personnel would "ideally" seek "face time with Sofia police to help coach them through some of the question[s]" that the U.S. wanted asked. 3500-JL-22 at 1. And the MLAT request itself — submitted less than a week later, on October 12 — asked that Bulgaria "[c]onduct a voluntary police interview of Zhukov" and stated that a "list of questions will be provided to the Bulgarian police on a law-enforcement-to-law-enforcement basis." MLAT at 8.

But according to the government, and as discussed in greater detail below, the U.S. position on whether to submit questions or engage in coaching evolved in the lead-up to Zhukov's November 6 arrest. Specifically, according to the government, the U.S. had contemplated submitting questions and coaching at a time when they understood Bulgarian law and policy to prohibit them from any direct questioning on Bulgarian soil. But, as the government points out, the Bulgarian position shifted; and once the U.S. authorities received authorization to conduct their own interview, they declined to follow up on any intention to submit questions to the Bulgarians, or to "coach" them on what to ask.

The U.S. prosecutor ultimately drafted a list of questions. This list begins with Miranda warnings, and was intended for use in the post-search questioning that U.S. personnel would be permitted to conduct. See Exhibit A to Declaration of Jack Liao ("Liao Decl."), ECF No. 249. Liao forwarded this list of questions to his counterpart, Bulgarian Inspector Dimitrov, attached to an email that read simply, "For printing." Exhibit 1 to Gov't Letter dated March 10, 2021, ECF No. 254. Liao testified that he forwarded the questions list because he was traveling to Varna, Bulgaria (where Zhukov's apartment was located), far from his office in Sofia, and did not have access to his own printer. Tr. 91:1-5.

It bears noting that, at an earlier stage in the suppression briefing, both Liao and Dimitrov submitted sworn statements attesting — incorrectly, it turned out — that Liao did not transmit any list of questions to Dimitrov, and Dimitrov did not receive any such list from Liao. Liao attested that he sent the list of questions only to a "local employee" of the GDBOP for printing. Liao Decl. ¶¶ 4, 5 ("I did not send the list of questions to Inspector Vladimir Dimitrov of GDBOP or any other Bulgarian government employee besides the individual who printed it for me ...."); Dimitrov Decl. ¶ 3 ("I did not receive a list of suggested questions from U.S. officials ...."). The government explains these inaccuracies by stating that Liao and Dimitrov honestly did not recall the "For printing" exchange, and neither had access to that email when they submitted their declarations. Tr. 26:4-9; 90:12-21. Instead, the email was discovered after the declarations were filed, when the government belatedly received productions of archived emails from the FBI and State Department. Gov't Letter dated April 12, 2021, ECF No. 268.

Nevertheless, the list of questions that Dimitrov received does not contain the question at issue here — "are these your devices?" — that elicited the positive response the government now seeks to admit at trial. The U.S. questions list does , in contrast, contain the full set of Miranda warnings right up front. See Exhibit A to Liao Decl., ECF No. 249.

At the suppression hearing, Liao and Dimitrov both testified that apart from the "For printing" email, there was no sharing of proposed questions from U.S. personnel to their Bulgarian counterparts, and no effort by the U.S. to direct the Bulgarians’ questioning of Zhukov. Tr. 22:1-22:2; 22:12-21; 23:16-24:2; 96:13-18. Dimitrov testified that he did not prepare or use a list of questions when he spoke with Zhukov. Tr. 21:20-25. He also explained that it is "ordinary police standard procedure" to ask questions about the items recovered during a search, and the ownership thereof. Tr. 39:3-7; see also 21:13-19.

II. Discussion

"[T]he law is settled that statements taken by foreign police in the absence of Miranda warnings are admissible if voluntary." United States v. Yousef , 327 F.3d 56, 145 (2d Cir. 2003). Because "the threat of suppression in U.S. courts for failure to comply with Miranda holds little sway over foreign authorities," the Second Circuit has "declined to suppress unwarned statements obtained overseas by foreign officials." In re Terrorist Bombings of U.S. Embassies in E. Africa , 552 F.3d 177, 202 (2d Cir. 2008) ; United States v. Welch , 455 F.2d 211, 213 (2d Cir. 1972) ("[S]ince the Miranda requirements were primarily...