US v. Cassim, Crim. No. 4:09-cr-0609.

693 F. Supp.2d 697

UNITED STATES of America, v. Adil R. CASSIM and Mathew D. Chow, Defendants.

Crim. No. 4:09-cr-0609.

United States District Court, S.D. Texas, Houston Division.

March 12, 2010.

U.S. Marshal, U.S. Pretrial SVCS., U.S. Probation, Mark McIntyre, Office of the United States Attorney, Financial Litigation, U.S. Attorney's Office, Houston, TX, Tyler Griffin Newby, U.S. Dept. of Justice, Washington, DC, for United States of America.

George D. Murphy, Jr., Attorney at Law, Houston, TX, Terry Wayne Yates, Attorney at Law, Bellaire, TX, Domingo J. Rivera, Domingo J. Rivera Attorney at Law, for Defendants.

MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

The indictments in this case allege that Defendant Mathew D. Chow ("Chow") and Defendant Adil R. Cassim ("Cassim") ("Defendants" "collectively") conspired and agreed to willfully infringe copyrights in violation of 17 U.S.C. Section 506(a)(1)(A) and 18 U.S.C. Section 2318(b)(1) for purposes of private financial gain. Pending before the Court is Chow's Motion to Suppress (Doc. No. 26), Defendants' Motion to Bifurcate Trial (Doc. Nos. 22, 30), the Government's Motion for Pre-trial Notice of 404(b) Evidence (Doc. No. 48), Defendants' Motion in Limine Regarding the Term "Music Piracy" (Doc. Nos. 25, 27), and Cassim's Objection to Government Exhibit 31 (Doc. No. 51).¹

I. MOTION TO SUPPRESS

Defendant Chow moves to suppress written and oral statements that he gave to law enforcement on March 6, 2009, at his home, regarding his involvement with Rabid Neurosis ("RNS"), a group accused of illegally copying and distributing copyrighted music recordings. Chow argues that the statements were not voluntarily offered in violation of the Self-Incrimination Clause of the Fifth Amendment of the United States Constitution. The Court holds that this Motion must be denied.

First, under well-established precedent, Defendant Chow was not in custody when the statements in question were made. See, e.g., Beckwith v. United States, 425 U.S. 341, 347, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) (noting that Miranda requirements were grounded on the custodial aspects of the situation and not on the subject matter of the interview, and that an interview conducted in a private home did not present the custodial situation contemplated by the Miranda Court); U.S. v. Gonzales, 121 F.3d 928, 939-40 (5th Cir.1997) (noting that a suspect is "in custody" for purposes of Miranda when he is placed under formal arrest or when a reasonable person in the position of the suspect would understand the situation to constitute a restraint on freedom of movement to the degree that the law associates with formal arrest (citing cases)). Although the court is troubled by the fact that the police officers arrived at Chow's home unannounced and were less than forthcoming with both Chow and his mother as to the nature and purpose of their visit, the fact that Chow was in his own home, during the day, and in close proximity to his mother when the questioning occurred suggests that this was not custodial interrogation. Thus, the FBI agent had no obligation to inform Chow of his Miranda rights.

Chow argues, however, that the facts nonetheless demonstrate that his statements to the law enforcement officers were not voluntary, because the agents did not inform him that he was under investigation. The Fifth Circuit has held that statements made by a suspect are not invalid merely because the police interrogators did not advise him of the subject matter of the upcoming interrogation, or because the suspect did not have a full appreciation of the consequences flowing from the evidence in the case. Barnes v. Johnson, 160 F.3d 218, 223 (5th Cir.1998). Moreover, Barnes was decided in the context of custodial interrogation and explicitly addressed the suspect's waiver of his Miranda rights, which further suggests that while the agent's lack of candidness here is undoubtedly troubling, it does not render Chow's non-custodial confession involuntary.

In further support of his argument, Chow also argues that both he and his mother asked the FBI agents whether he should have a lawyer during their conversation, to which they replied "No, we just need to get some information...." Chow argues that the FBI agents therefore exploited Chow's naivete and deliberately misled him as to the nature of their inquiries, which renders his comments inadmissible. The Government insists, however, that neither Chow nor his mother ever inquired about an attorney.

Even if this Court were to resolve this factual conflict in Chow's favor, because his confession occurred in a non-custodial setting, the Court must acknowledge that he had no formally recognized right to have an attorney present. Therefore, even if Chow's statements constituted an assertion of such a right, the agents had no legal obligation to recognize such a request.² The Circuit cases on which Chow relies in arguing that his inquiry about an attorney and the agents' response rendered the confession involuntary are accordingly inapposite. Those cases involved situations in which the defendants' inquiries as to an attorney occurred in a custodial setting. Indeed, in U.S. v. Anderson, 929 F.2d 96, 102 (2d Cir.1991), the Second Circuit explicitly recognized that the government's misleading statements as to the defendant's need for an attorney, combined with the "already coercive atmosphere inherent in custodial interrogation," rendered the confession involuntary. Here, the fact that this was not a custodial interrogation suggests that the inherently coercive nature of questioning by law enforcement officials was significantly less pronounced. That fact creates a clear distinction from Anderson, and weighs heavily against the conclusion that these statements were not made voluntarily.

It is true that even non-custodial confessions can be deemed involuntary. See Beckwith, 425 U.S. at 347-48, 96 S.Ct. 1612 (noting that non-custodial involuntary statements can occur where "`the behavior of law enforcement official was such as to overbear petitioner's will to resist and bring about confessions not freely determined'") (quoting Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961)); Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (holding that voluntariness is a question of fact to be determined from the totality of circumstances). However, the Court cannot find, absent a custodial setting, that the circumstances of Chow's questioning rise to the level of coerciveness necessary for this Court to exclude his statements. Therefore, the Court must deny Chow's Motion. This is not, however, the result that the Court would have reached absent controlling precedent.

II. MOTION TO BIFURCATE

Defendants also move to bifurcate this trial so that the issues involving guilt are tried separately from the issues involving sentencing. More specifically, Defendants argue that the issue of the value of the allegedly infringed items should be separated from the jury's determination of underlying guilt. Defendants argue that value evidence will cause undue prejudice because the jury is likely to equate the value of the infringed items to the loss suffered by artists in the recording industry.

The indictment contains only one count of conspiracy. The underlying offenses are contained in 17 U.S.C. Section 506, and 18 U.S.C. Section 2319. Section 2319(a) provides "any person who violates section 506(a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b), (c), (d)." 18 U.S.C. § 2319(a). Subsection (b) then states that any person who violates section 506 "shall be imprisoned not more than 5 years ... if the offense consists of reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2500." 18 U.S.C. § 2319(b). Therefore, this particular provision speaks only to the appropriate punishment to be assigned for violations of the underlying criminal offense. As such, determinations under this section could potentially be severed and tried separately. United States v. Collamore, 868 F.2d 24, 27 (1st Cir.1989) (noting that "a court may divide a trial between a determination of guilt or innocence and imposition of penalty").

However, 17 U.S.C. Section 506, the underlying criminal statute, defines the offense of criminal copyright infringement as infringement committed "by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000." 17 U.S.C. § 506. Thus, the statute that defines the very crime at issue includes the value of the copyrighted works as an element of the offense. Therefore, the issue of value does not go solely to the punishment stage of these proceedings, as counselors for Defendants suggest. While the statutorily-imposed $1,000 value requirement is undoubtedly minor compared to the measure of the value evidence that the Government will likely present, counsel for Defendants have indicated that they are unwilling to stipulate as to any value amount. The Government must therefore be allowed to present value evidence as an element of the underlying criminal offense. Thus, the Court cannot conclude that bifurcation of the guilt and punishment is appropriate in this case. Accordingly, Defendants' Motion for Bifurcation is denied.

However, the Court does note Defendant's concern that the jury may equate the value of the copyrighted works with the "loss" experienced by artists in the recording industry. To mitigate any such prejudice, the Court is willing to provide a limiting instruction to the jury that evidence of the value of the allegedly infringed work should not be equated with the loss or...