Case 1:15-cr-00531-ILG Document 30-2 Filed 05/09/16 Page 1 of 12 PageID #: 72

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

CASE NO. 15CR531 (ILG)

vs.

JACQUES DURAND
Defendant
X

BRIEF OF LAW IN SUPPORT OF

DEFENDANT'S MOTION TO SUPPRESS

The Defendant Jacques Durand respectfully submits this Memorandum of Law in

support of his pretrial motions pursuant to the Fifth Amendment to the United States

Constitution and Federal Rule of Criminal Procedure 12, to suppress statements which

were allegedly made by Mr. Durand. In support of his motion,the Defendant relies on his

affidavit sworn May 3'"'^, 2016(the "Durand Affidavit").

The statements which Mr. Durand seeks to suppress are described in a letter from

the Government dated December 7'*', 2015 (Exhibit"A"hereto) which states as follows:

The defendant was arrested on June 9,2015,in connection with criminal

charges pending in the District Court of Nassau Coimty. In the course of
providing pedigree information to the arresting officers, the defendant
provided a false telephone number to United States Postal Inspector
Yseult Belfort.In response to further pedigree questioning,the defendant
provided another telephone number:(718)559-9768.

For the reasons set out below,these alleged statements should be suppressed.
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A. Legal Standard

The Fifth Amendment reads in relevant part that"No person...shall be compelled

in any criminal case to be a witness against himself[.]" U.S. CONST., Amend. V. The

purpose of the Fifth Amendment has been interpreted to ensure that "a confession be

voluntary to be admitted into evidence." Dickerson v. United States. 530 U.S. 428(2000).

Under Miranda v. Arizona. 384 U.S.436,444(1966)"the prosecution may not use

statements, whether exculpatory or inculpatory, stemming from custodial interrogation of

the defendant unless it demonstrates the use of procedural safeguards effective to secure

the privilege against self-incrimination." Among those safeguards is the requirement that

the defendant be warned, prior to interrogation; that he has the right to remain silent, that

anything he says can be used against him in a court of law, that he has the right to the

presence of an attomey, and that if he cannot afford an attorney one will be appointed for

him prior to any questioning ifhe so desires. Id. at 479; see also Rhode Island v. Innis.446

U.S. 291,297(1980)(summarizing Miranda).

Courts recognize that, by nature,"[t]he coercion inherent in custodial interrogation

blurs the line between voluntary and involuntary statements." United States v. Martinez.

916 F. Supp.2d 334, 347(E.D.N.Y. 2013)."To prevent such coercion and to safeguard a

suspect's privilege against self-incrimination, law enforcement officers must provide a

suspect with Miranda warnings prior to conducting a custodial interrogation." Id. Miranda

operates to "ensure that the person in custody has sufficient knowledge of his or her

constitutional rights ... and that any waiver of such rights is knowing, intelligent and

voluntary." Id. See also United States v. Carter. 489 F.3d 528, 534(2d Cir. 2007). Stated

differently,"[i]fthe government wishes to introduce into evidence at trial a statement made

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during ... an interrogation, it has the burden of establishing by a preponderance of the

evidence that the suspect waived his Miranda rights and that his statement was 'truly the

product of free choice.'" Martinez. 916 F. Supp.2d at 347 (citing United States v.

Anderson.929 F.2d 96,99(2d Cir. 1991)).

These Miranda safeguards come into play whenever(i) a person is in custody; and

(ii) the person is subjected to either "express questioning or its functional equivalent."

Rhode Island v. Innis. 446 U.S. 291, 301 (1980). The term 'interrogation' refers not only

to express questioning, but also to any word or actions on the part of the police "that the

police should know are reasonably likely to elicit an incriminating response from the

suspect." Id. "Without obtaining a waiver of the suspect's Miranda rights, the police may

not ask questions, even during booking, that are designed to elicit incriminatory

admissions." Rosa v. McCrav. 396 F.3d 210,222(2d Cir. 2005).

The Second Circuit has provided a two pronged test to determine whether custodial

interrogation has occurred: custodial interrogation exists when a law enforcement official

questions an individual and that questioning was (i) conducted in custodial settings that

have inherently coercive pressures that tend to imdermine the individual's will to resist and

to compel him to speak(the in custody requirement); and (ii) when the inquiry is conducted

by officers who are aware ofthe potentially incriminatory nature ofthe disclosures sought

(the investigative intent requirement). United States v. Morales. 834 F.2d 35, 38 (2d

Cir.1987).

In Pennsvlvania v. Muniz.496 U.S.582,601 (1990),the Supreme Court established

that routine booking questions are not considered interrogations and therefore do not

require Miranda warning. Justice Brennan, writing for a plurality offour justices, held that

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routine booking questions were reasonably related to police record keeping needs and

therefore unrelated to Miranda's concerns. See Id, at 601-02. The plurality cautioned,

however, that police may not ask questions designed to elicit incriminating admissions at

the booking stage without giving Miranda warnings. See Id. at 602 n.l4.

InRosav. McCrav.396 F.Sd 210,221(2d Cir. 2005),the Second Circuit formulated

the "routine booking exception" as follows:

The collection of biographical or pedigree information through a law

enforcement officer's questions during the non-investigative booking
process that typically follows a suspect's arrest, however, does not
ordinarily implicate the prophylactic protections of Miranda, which are
designed to protect a suspect only during investigative custodial
interrogation.

The analytical firamework set forth in Rosa v. McCrav requires the court to ask two

questions: (i) whether the questions were asked during a non-investigative booking

process? And,(ii) whether the questions were designed to elicit incriminatory admissions?

Id. 221. When the latter question is answered in the affirmative, courts have found the

exception inapplicable. See, e.g.. United States v. Scott. 270 F.Sd 30, 44 (1st Cir. 2001)

(questions about age and residence not within routine booking exception because officer

knew answers likely to produce incriminating information); United States v. Virgen-

Moreno. 265 F.Sd 276, 280 (5th Cir. 2001) (questioning defendant incessantly about

residence after defendant twice denied living at particular address not within routine

booking exception); United States v. Pacheco-Lopez. 531 F.Sd 420, 424 (6th Cir. 2008)

(questions about where defendant was fi:om and how and when he arrived at house not

within routine booking exception because reasonably likely to solicit incriminating

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response and responses not documented); United States v. Henlev. 984 F.2d 1040, 1042-

43 (9th Cir. 1993)(questions about whether suspect owned vehicle not within routine

booking exception because officer had reason to believe vehicle involved in illegal

activity).

B. Application

Here, Jacques Durand's alleged statement to Government agents on Jime 9'*', 2015,

should be suppressed, because the statements were given while in custody and in response

to un-Mirandized and admission-seeking questions. There is no doubt that Mr. Durand was

in custody when he gave the alleged statements and it was "reasonable" for him to believe

he was under arrest as he was handcuffed and at a police precinct. See Durand Affidavit at

para. 2. See generally United States v. Newton. 369 F.3d 659, 672 (2d Cir. 2004)

(describing 'custody' as whether a reasonable person in the suspect's position would

understand his situation to be comparable to a formal arrest).

Second, without offering Miranda warnings, agents asked Mr. Durand for his

telephone number specifically intending to elicit an incriminating response— an aim that

succeeded, given that the Government now intends to use Mr. Durand's response at trial.

It is important to note as well, that the agent called the number provided by Mr. Durand

almost immediately after Mr. Durand gave it to him, something which is not usual, and

which confirms that the number was ofcritical importance to the investigation. See Durand

Affidavit at para. 2. Moreover, the agents seemingly knew that the first number given by

Mr. Durand was false and continued to prod him for a second number. See Exhibit "A"

("the defendant provided a false telephone number... [i]n response to further pedigree

questioning, the defendant provided another telephone number..." These questions were

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not merely general or impromptu in nature; they were specifically geared toward

developing or strengthening the Government's case against Mr. Durand. Mr. Durand's

answers were directly related to those questions, as provided in his affidavit. Importantly,

and as detailed in Mr. Durand's affidavit, "As soon as [he] provided agents with this

telephone number, one of the agents called the number and the phone started ringing. At

no point prior to giving law enforcement agents [his] number was [he] read [his] Miranda

rights, nor were they even paraphrased." Affidavit of Jacques Durand, at para. 2.

United States v. Augustus. 2012 WL 3241190 (E.D.N.Y. 2012) is compelling on

this issue. There,an imprisoned suspect was in a state detention facility when he was picked

up by agents and transported to the Eastern District Courthouse on unrelated charges. At

no point during the car-ride, or prior thereto, was the defendant advised of his Miranda

rights, but he was nevertheless asked questions to which he gave incriminating responses.

In deciding whether to suppress the statements, the court admitted mere bookkeeping

responses but suppressed the others, stating:

[T]he government has failed to demonstrate that the defendant's so-

called "spontaneous" statements were not the product of[his] improper
pedigree questioning... To the contrary, on their face, the statements at
issue bear a strong rational relationship to the impermissible question
that preceded them. Thus, on the record before this Court, the
Government has failed to demonstrate that these additional statements
were not a natural continuation of the earlier question. As such,
defendant's motion to suppress these statements is also granted.
Augustus, at *9(internal citations omitted).

The same principles apply here. Mr. Durand was handcuffed and at the precinct

with government agents when he gave incriminating responses to questions from the
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agents. In both cases, no Miranda warnings were issued and his responses must be

suppressed under the Fifth Amendment's protections against self-incrimination.

C. Alternatively, Mr. Durand requests an evidentiary hearing.

In the event the Court cannot suppress the statements based on moving papers, Mr.

Durand requests an evidentiary hearing to allow the Court to evaluate any disputes offact.

WHEREFORE the defendant, Mr. Durand, respectfully requests that his statements

be suppressed given that they were improperly elicited in violation of his constitutional

rights.

Dated: New York. New York

May 9,2016
Daniel DeMaria
Merchant Law Group LLP
535 Fifth Avenue, Fl. 25
New York, New York 10017
Tel: 212-658-1710
Fax:212-658-1711
ddemaria@nyslitigators.com

Jeff Greco
Greco Neyland,PC
535 Fifth Avenue, Fl. 25
New York, New York 10017
Tel: 212-951-1300
jeff@gnlaw.nye
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EXHIBIT "A"
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U.S. Department of Justice

United States Attorney

Eastern District ofNew York

SA:JMH 271 Cadman Plaza East

F.#2015R01172 Brooklyn, New York 11201

December 7,2015

By First-Class Mail and ECF

JefFery L. Greco, Esq.

Greco & Neyland
261 Madison Avenue, 12th Floor
New York, New York 10016

Re: United States v. Jacques Durand

Criminal Docket No. 15-531 fILG)

Dear Mr. Greco:

Enclosed please find the government's discovery in accordance with Rule 16

ofthe Federal Rules of Criminal Procedure. The enclosed disc is encrypted and the
password will follow by separate cover. The govermnent also requests reciprocal discovery
from the defendant.

I. The Government's Discovery

A. Statements ofthe Defendant

The defendant was arrested on June 9,2015, in coimection with criminal

charges pending in the District Court of Nassau County. In the course of providing pedigree
information to the arresting officers, the defendant provided a false telephone number to
United States Postal Inspector Yseult Belfort. In response to further pedigree questioning,
the defendant provided another telephone number:(718)559-9768.

Ifthe government becomes aware of additional statements ofthe defendant

relevant to the crimes charged in the indictment, it will promptly disclose them.
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B. The Defendant's Criminal History

Records reflecting the defendant's criminal history are enclosed, bearing the
Bates numbers JDOOOOOl through JD000075.

C. Documents and Tangible Objects

Please find enclosed the following documents:

Description Bates Range

Toll records from T-Mobile obtained by Nassau Coimty law enforcement, JD000017-
pursuant to subpoena, associated with the defendant's(718)559-9768 JD000020
wireless telephone number
JD000051-
JD000059

Cell site records obtained, pursuant to a search warrant,from T-Mobile JD000021-

associated with the defendant's(718)559-9768 wireless telephone number JD000050

Redacted copies ofrecords related to the defendant's arrest in Nassau JD000060-

County on June 9,2015, including documents taken from the defendant's JD000075
person during a search incident to that arrest

Please note that certain ofthese records, such as the cell site records, are in
Microsoft Excel format and reflect nixmerous data entries. To facilitate review ofthese types
of documents the government has provided two copies: a "locked" or read-only format; and
an "unlocked" or sortable format.

The government is also in possession ofcertain records obtained from Capital

One, Bank of America, and JPMorgan Chase Bank. Those records contain private
information subject to the protections ofFederal Rule of Criminal Procedure 49.1. I have
enclosed a draft protective order which, once executed and so ordered by the Court, will
permit the government to share these records with you more efficiently. Please call me if
you would like to discuss.

You may examine the physical evidence discoverable under Rule 16,
including original documents, by calling me to arrange a mutually convenient time.
D. Reports ofExaminations and Tests

The government will provide you with copies of any reports of examinations
or tests in this case as they become available.
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E. Expert Witnesses

The government will comply with Fed. R. Grim. P. 16(a)(1)(G) and Fed. R.
Evid. 702, 703 and 705 and notify you in a timely fashion ofany expert that the government
intends to call at trial and provide you with a summary ofthe expert's opinion.
The identity, qualifications, and bases for the conclusions of each expert will
be provided to you when they become available.

F. Bradv Material

The government is not aware of any exculpatory material regarding the

defendant. The government understands and will comply with its continuing obligation to
produce exculpatory material as defined by Bradv v. Marvland, 373 U.S. 83(1963), and its
progeny.

Before trial, the government will furnish materials discoverable pursuant to

Title 18, United States Code, Section 3500, as well as impeachment materials. See Gielio v.
United States. 405 U.S. 150(1972).

G. Other Crimes. Wrongs or Acts

The government will provide the defendant with reasonable notice in advance
oftrial if it intends to offer any material imder Fed. R. Evid. 404(b).

II. The Defendant's Required Disclosures

The government hereby requests reciprocal discovery imder Rule 16(b) ofthe
Federal Rules of Criminal Procedure. The government requests that the defendant allow
inspection and copying of(1)any books, papers, documents, data, photographs, tapes,
tangible objects, or copies or portions thereof, that are in the defendant's possession, custody
or control, and that the defendant intends to introduce as evidence or otherwise rely on at
trial, and(2)any results or reports of physical or mental examinations and ofscientific tests
or experiments made in connection with this case, or copies thereof, that are in the
defendant's possession, custody or control, and that the defendant intends to introduce as
evidence or otherwise rely upon at trial, or that were prepared by a witness whom the
defendant intends to call at trial.

The government also requests that the defendant disclose prior statements of
witnesses who will be called by the defendant to testify. See Fed. R. Crim. P. 26.2. In order
to avoid imnecessary delays,the government requests that the defendant have copies ofthose
statements available for production to the government no later than the commencement of
trial.

The government also requests that the defendant disclose a written summary
oftestimony that the defendant intends to use as evidence at trial vmder Rules 702,703, and
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705 ofthe Federal Rules ofEvidence. The summary should describe the opinions ofthe
witnesses,the bases and reasons for the opinions, and the qualification ofthe witnesses.
Pursuant to Fed. R. Grim. P. 12.3, the government hereby demands written
notice ofthe defendant's intention, if any,to claim a defense of actual or believed exercise of
public authority, and also demands the names and addresses ofthe witnesses upon whom the
defendant intends to rely in establishing the defense identified in any such notice.
III. Future Discussions

If you have any questions or requests regarding further discovery or a

disposition ofthis matter, please do not hesitate to contact me.
Please be advised that, pursuant to the policy ofthe Office concerning plea
offers and negotiations, no plea offer is effective unless and imtil made in writing and signed
by authorized representatives ofthe Office. In particular, any discussion regarding the
pretrial disposition ofa matter that is not reduced to writing and signed by authorized
representatives ofthe Office cannot and does not constitute a "formal offer" or a "plea offer,
as those terms are used in Lafler v. Cooper. 132 S. Ct. 1376(2012), and Missouri v. Frve,
132 S. Ct. 1399(2012).

Very truly yours,

ROBERT L. CAPERS
United States Attorney

By: /s/ J. Matthew Haggans

J. Matthew Haggans
Assistant U.S. Attorney
(718)254-6127

Enclosures

cc: Clerk ofthe Court(ILG)(by ECF)(without enclosures)