Opinion
Criminal No. 03-372 (JRT/FLN)
March 1, 2004
Lisa A. Biersay, Minneapolis, MN, for plaintiff
Virginia Villa, Minneapolis, MN, for defendant Idriss
Matthew L. Thornton, THORNTON LAW OFFICE, St. Paul, MN, for defendant Trokom Harris Moore
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
Defendant Youseph Idriss ("Idriss") was charged with two counts of Using Altered U.S. Currency to Defraud Another, in violation of 18 U.S.C. § 472 and 2; and one count of Altering U.S. Currency to Defraud Another, in violation of 18 U.S.C. § 471 and 2. Additionally, the government seeks forfeiture of unspecified property pursuant to 18 U.S.C. § 982(a)(2)(B).
Defendant Trokom Harris Moore was also indicted on Counts 1 and 2. Moore moved to sever his trial from the trial of Idriss. In an order dated January 14, 2004, the Magistrate Judge denied the motion. No appeal was filed.
Idriss made a number of pretrial motions. Following a hearing, United States Magistrate Judge Franklin L. Noel recommended that defendant's motions to dismiss counts 1 and 3, dismiss count 3, suppress statements, admissions and answers, and suppress evidence be denied, but that his motion to dismiss the forfeiture allegations be granted. The Magistrate Judge also recommended that the government be ordered to provide the defendant with a bill of particulars. Idriss objects to the recommendation that his motions be denied. The Court has conducted a de novo review of defendant's objections pursuant to 28 U.S.C. § 636 (b)(1)(C) and D. Minn. L.R. 72.1(c)(2). For the following reasons the Court overrules the defendant's objections and adopts the Magistrate Judge's Report and Recommendation.
Moore moved to adopt the motions and memorandum submitted by Idriss. In an order dated January 14, 2004, the Magistrate Judge denied the motion except as it relates the motion to dismiss Counts 1 and 3 [Docket No. 25] and to dismiss Count 3 [Docket No. 26]. No appeal was filed by defendant Moore.
BACKGROUND
According to the allegations in this case, in September 2003, defendants Idriss and Trokom Harris Moore ("Moore") (collectively "defendants") approached Won Kim ("Kim") at his store and offered to purchase his business. Kim asked how they would finance the purchase, and defendants responded that they had approximately $1.5 million in cash that was covered in a black substance. The defendants stated that the black substance could only be removed by using a very expensive chemical. Defendants told Kim and an associate, Steve Rhee ("Rhee"), that if Kim and Rhee gave the defendants money to purchase the chemical, the defendants would give them back double that amount once the money was cleaned.
The defendants visited Kirn's business on numerous occasions. On one visit, defendants brought along two suitcases supposedly containing money covered in the black substance. Defendants showed Kim and Rhee two blackened bills and a small vial of liquid. Defendants demonstrated how the liquid removed the black substance, revealing two apparently genuine pieces of United States currency. Kim and Rhee each gave the defendants approximately $15,000 to purchase the cleaning solution and another $1,000 for travel expenses.
Kim and Rhee soon realized that they had fallen victim to a scam and called the United States Secret Service in Minneapolis. Special Agent Anthony Samec spoke with them. Agent Samec recognized their story as a version of a relatively well-known scam known, appropriately, as the "black money" scam. On October 6, 2003, Kim provided the Secret Service Office with the phone number of a person named "Jamar," who was later identified as Idriss. Kim called the number and explained to Idriss that a business owner friend, who was in fact Agent Samec, had additional money for him. Idriss asked to speak to Agent Samec, and the two arranged to meet at a parking lot in Fridley. Agent Samec and Idriss met in Fridley on October 6, 2003. During that meeting they agreed to meet again on October 8, 2003, at which point Samec would give Idriss $22,000 with which to purchase one gallon of the cleaning chemical.
On October 8, 2003 Idriss and Agent Samec again met at the parking lot. Idriss removed an envelope from his sock from which he removed what appeared to be a piece of U.S. currency covered in a black substance and a vial of liquid. Idriss demonstrated to Agent Samec how the liquid could be used to remove the black substance from the bill. After the demonstration, Agent Samec gave Idriss a sealed package supposedly containing $22,000. Idriss told Agent Samec that he would call either Samec or Kim when he had purchased the cleaning chemical and was ready to meet again. Agent Samec then gave the arrest signal and the Fridley police arrested Idriss on charges of Theft By Swindle in violation of Minnesota Statute § 609.52, subd. 2(4).
After Idriss was arrested, he was transported to the Fridley Police Department where he was interviewed by Secret Service Agent Erich Schulenberg and a Fridley Police detective. Before beginning the interview, the detective read Idriss the Miranda warning, and Idriss indicated that he understood his rights and was willing to make a statement. The interview was tape recorded and lasted 1 1/2 hours. No threats or promises were made and the defendant made no request to terminate the interview. At the end of the interview, Idriss signed three Consent to Search forms for a motel room he was staying in, an apartment he shared with his girlfriend, and computer equipment located at the apartment. At Agent Schulenberg's request, Idriss also placed a call on his cell phone to a number he claimed belonged to Moore. The call lasted thirty seconds and the interviewers could not verify that Idriss, in fact, contacted Moore.
A Bureau of Immigration and Customs Enforcement agent was also present because at that time they did not know Idriss' citizenship status. Idriss is a Liberian citizen.
On Friday, October 10, 2003, Agent Schulenberg transported Idriss from the Anoka County Jail to the United States Marshal's Office in Minneapolis. During the transport, Agent Schulenberg advised Idriss that he had been arrested federally and asked him if he was willing to talk about the money scam. Idriss agreed to talk to him, at which point Agent Schulenberg again advised him of his Miranda rights. Idriss said that he had been scared during the October 8 interview and had lied. Idriss stated that he had met with Agent Samec, and that Idriss had brought with him the white envelope and its contents.
Idriss had previously claimed that Agent Samec brought the envelope with the blackened currency and cleaning solution.
After processing Idriss with the Marshals, Agent Schulenberg asked Idriss if he recalled reviewing his Miranda rights and agreeing to talk during the transport. Idriss stated that he did recall and signed the top portion of a waiver form indicating that he had been informed of and understood his rights, but not the bottom portion waiving those rights. Agent Schulenberg testified that he did not have Idriss sign the waiver before talking to him because they were in the car and a form was not available. The October 10 interview was not recorded.
As noted, Idriss was indicted on two counts of Using Altered U.S. Currency to Defraud Another in violation of 18 U.S.C. § 472 and 2 (Counts 1 and 3), and one count of Altering U.S. Currency to Defraud Another in violation of 18 U.S.C. § 471 and 2 (Count 2). The government has also made Forfeiture Allegations against Idriss pursuant to 18 U.S.C. § 982(a)(2)(B). Idriss moved to dismiss Counts 1 and 3 as stating more than one crime in a single count (multiplicity), to dismiss Count 3 as stating the same crime as count 1 (duplicative), to suppress all statements and evidence as fruits of an unlawful arrest, to suppress his October 10 statements as in violation of Miranda, and to dismiss the forfeiture allegations. The Magistrate Judge recommended that the motion to dismiss the forfeiture allegations be granted, but that all others be denied. The Magistrate Judge also recommended that the government be ordered to provide Idriss with a Bill of Particulars. Idriss objects to the denial of his motions. For the following reasons, the Court overrules the objections and adopts the Magistrate Judge's recommendations.
ANALYSIS
I. Motion to Dismiss Counts 1 and 3 as Duplicitous
Federal Rule of Criminal Procedure 8(a) provides that the government may charge two or more connected offenses in the same indictment, provided each is charged in a separate count. "`Duplicity' is the joining in a single count of two or more distinct and separate offenses." United States v. Street, 66 F.3d 969, 974 (8th Cir. 1995) (quotation omitted). "The principal vice of a duplicitous indictment is that the jury may convict a defendant without unanimous agreement on the defendant's guilt with respect to a particular offense." United States v. Karam, 37 F.3d 1280, 1286 (8th Cir. 1994). In other words, some jurors may vote to convict on one offense but not on the other, while others may do the reverse. "Duplicity concerns are not present, however, when the underlying statute is one which merely enumerates one or more ways of committing a single offense." United States v. Moore, 184 F.3d 790, 793 (8th Cir. 1999). In such a case, each of the different ways of committing the offense may be alleged in the conjunctive in one count, and proof of any one of the enumerated methods will sustain a conviction. See id.; see also United States v. Nattier, 127 F.3d 655, 657 (8th Cir. 1997).
Idriss asserts that both Counts 1 and 3 are duplicitous. Counts 1 and 3 charge violations of 18 U.S.C. § 472 and 2. Section 472 provides:
Whoever, with intent to defraud, passes, utters, publishes, or sells or attempts to sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined under this title or imprisoned not more than 20 years or both.
Idriss contends that while the rule permitting multiple manners of committing the same offense to be charged in the conjunctive and then proven in the disjunctive applies to the "pass, utter, publish" portion of the statute and indictment, it cannot apply to the "possess with like intent" portion of the statute and indictment. According to defendant, the possession portion is duplicitous because while passing, uttering, and publishing all describe discrete, concrete events, possession may describe a continuing act that may or may not constitute multiple offenses. The Court disagrees.
It is apparent to the Court that § 472 defines a single offense, not multiple offenses. The offense is using, importing, or possessing, in any number of ways, a forged, counterfeited, or altered obligation of the United States. The statute lists each manner of violating the statute in one sentence and imposes a single penalty for all of them, "a construction which indicates that Congress did not mean to create more than one offense." Street, 66 F.3d at 974 (quoting United States v. Mal, 942 F.2d 682, 688 (9th Cir. 1991)). The language used in counts 1 and 3 tracks the statutory language, with the exception that it uses the conjunctive and rather than the disjunctive or. Since the underlying statute is one which "enumerates one or more ways of committing a single offense," Moore, 184 F.3d at 793, "all may be alleged in the conjunctive in one count of the indictment." Street 66 F.3d at 974 (quoting Gerberding v. United States, 471 F.2d 55, 59 (8th Cir. 1973)).
Count 1 states:
From about September 15, 2003, to on or about October 8, 2003 in the state and District of Minnesota, the defendants, Yousef Idriss and Trokom Harris Moore, aiding and abetting each other, with intent to defraud, did pass, utter, and publish, and attempted to pass, utter, and publish, or with like intent kept in their possession a falsely made and altered obligation of the United States, . . .
Count 3 states:
On or about October 8, 2003, in the State and District of Minnesota, the defendant, Yousef Idriss, with intent to defraud, passed, uttered, and published, and attempted to pass, utter, and publish, or with like intent kept in their possession a falsely made and altered obligation of the United States.
Charges in the conjunctive must nevertheless be proved in the disjunctive. Nattier, 127 F.3d at 657. In other words, although the government is free to present evidence that Idriss violated the statute in any or all of the enumerated manners, in order to prevail, it must convince the entire jury that Idriss violated the statute in one particular way. To the extent that the conjunctive language of the indictment might confuse the jury, this potential problem can be cured by an appropriately worded jury instruction. Id. at 657-58. Counts 1 and 3 are therefore not duplicitous and should not be dismissed on this basis.
II. Motion to Dismiss Count 3 as Multiplicitous
"`Multiplicity' is the charging of a single offense in several counts. . . . `The vice of multiplicity is that it may lead to multiple sentences for the same offense.'" Street, 66 F.3d at 975 (quoting United States v. Kazenbach, 824 F.2d 649, 651 (8th Cir. 1987) (internal quotation omitted)). Idriss asserts that Counts 1 and 3 charge the same offense and therefore moves to dismiss Count 3. Based solely on the face of the indictment, the two counts certainly could charge the same offense. Count 1 charges Idriss with violation of § 472 "from about September 15, 2003 to on or about October 8, 2003." Count 3 charges Idriss with violation of § 472 "on or about October 8, 2003." However, in a hearing before the Magistrate Judge, the government made clear that the two counts refer to two separate incidents on two separate dates, one involving Kim and Rhee and the other involving Agent Samec. The two counts are therefore not multiplicitous.
However, the Court agrees with the Magistrate Judge that the distinction between the two counts is not apparent on the face of the indictment, and the indictment is therefore insufficient to properly advise Idriss of the charges against him. "The district court, in its discretion, may order the government to provide requested additional detail where the particulars set out in the indictment fail sufficiently to apprise the defendant of the charges to enable him to prepare a defense." United States v. Garrett, 797 F.2d 656, 665 (8th Cir. 1986). "[T]he purpose of a bill of particulars is to inform the defendant of the nature of the charges against him and to prevent or minimize the element of surprise at trial." United States v. Wessels, 12 F.3d 746, 750 (8th Cir. 1993) (citing Garrett, 797 F.2d at 665.) In providing a bill of particulars, the government is not required to detail all of the evidence that it will submit at trial. Wessels, 12 F.3d at 750 (citation omitted) (a bill of particulars is not a tool of discovery). However, a defendant is entitled to know what behavior is alleged to constitute the offense he is charged with. The Court therefore orders the government to provide both defendants with a bill of particulars detailing the elements of the three counts and the specific facts establishing those offenses. See United States v. Helmel, 769 F.2d 1306, 1322 (8th Cir. 1985) (an indictment is generally sufficient if "the elements of the offense are delineated and the general statement is accompanied by the specific facts constituting the offense." (internal quotation omitted)).
III. Motions to Suppress Evidence and Statements
Idriss contends that his arrest was unlawful because the government lacked probable cause, and that all of his statements following arrest, the search of his person, his consent to search his hotel room, apartment and computer, and any evidence obtained from these searches are unlawful fruits of the arrest and should be excluded pursuant to Wong Sun v. United States, 371 U.S. 471 (1963). Idriss also asserts that he did not waive his Miranda rights before making the October 10 statements during transport, and that those statements should therefore be suppressed.
A. Probable cause
In order to effect a warrantless arrest, the police must have probable cause to believe that the person to be arrested is committing or has committed an offense. Beck v. Ohio, 379 U.S. 89, 91 (1964). To determine the existence of probable cause, the Court examines the totality of the circumstances as set forth in the information available to the officers at the time of arrest. United States v. Kelly, 329 F.3d 624, 628 (8th Cir. 2003) (citing Illinois v. Gates, 462 U.S. 213, 230-39 (1983)). Probable cause exists if, at the time of arrest, the available facts and circumstances are sufficient for a person of reasonable caution to believe that an offense was being or had been committed by the person to be arrested. Kelly, 329 F.3d at 628 (citing Dunaway v. New York, 442 U.S. 200, 208 n. 9 (1979)). In determining whether probable cause to arrest exists, police are often required "to make reasonable inferences from the facts known to them." United States v. Fahsi, 102 F.3d 363, 365 (8th Cir. 1996)
At the time of Idriss' initial arrest, the Fridley police knew the following: two victims had informed the Secret Service that they had fallen victim to a "black money" scam perpetrated in part by Idriss, that Idriss had performed a demonstration involving the blackened money and had left several suitcases containing fake money at one of the victim's businesses, and that the victims had given Idriss and Moore a substantial quantity of money. The officers also knew that the Secret Service was familiar with such scams and had set up an undercover operation to substantiate the victims' allegations. Finally, the police knew that Idriss had met with Agent Samec, told him the same "black money" story, performed the same demonstration for him, and accepted a quantity of money to be used to purchase the cleaning chemical.
Idriss' probable cause memorandum addresses only 18 U.S.C. § 472, arguing that probable cause could not have existed to believe that Idriss had violated § 472 because the blackened bills presented to Kim and to Agent Samec were not altered and were not ever represented to be anything other than what they actually were — blackened bills. However, as the Magistrate Judge noted, Idriss was initially arrested for Theft by Swindle in violation of Minnesota Statute § 609.52, subd. 2(4). That statute prohibits "any fraudulent scheme, trick or device whereby the wrongdoer deprives the victim of his money or property by deceit or betrayal of confidence." State v. Ruffin, 158 N.W.2d 202 (Minn. 1968). The cumulative effect of the information available to the police is more than sufficient basis for finding probable cause that Idriss was committing or had committed Theft by Swindle. United States v. Tyler, 238 F.3d 1036, 1038 (8th Cir. 2001) (in the assessment of probable cause the court "do[es] not evaluate each piece of information independently; rather, [it] consider[s] all of the facts for their cumulative meaning"). Idriss' arrest on October 8 was therefore proper.
These facts are also sufficient to establish probable cause as to § 472. In determining whether an obligation of the United States has been altered in violation of § 472, the Court looks to three factors: (1) whether the obligation was genuine, (2) whether the obligation was physically changed in some manner, (3) and whether the obligation has retained its essential character. United States v. Hall, 801 F.2d 356, 359 (8th Cir. 1986). In this case, it is not disputed that the bills used in Idriss' demonstrations to Kim, Rhee, and Agent Samec were genuine. It is also not disputed that the bills retained their original character, namely as legal tender. Idriss argues, however, that application and later removal of a black substance resulting in no permanent change to the bill does not constitute physical change.
In United States v. Wabo, a case involving a different version of a black money scam, the United States District Court of New Jersey rejected an argument very similar to this argument. 290 F. Supp.2d 486, 489-90 (D.N.J. 2003). The court noted that the government has a "valid interest in guarding against fraudulent misuse of its services, even if the fraud may never injure the government itself." Id. at 489 (citing Barbee v. United States, 392 F.2d 532, 536 (5th Cir. 1968)). Thus, an alteration need not destroy or impair the validity of the obligation, and need not have the United States as the intended or actual victim of the related scheme. Id. Rather, an alteration need only change the appearance of the obligation in furtherance of a scheme to defraud any person specified by the applicable statutes. Id. The New Jersey court therefore found that the temporary blackening of currency "could be found by a reasonable jury to constitute `alteration' within the scope of . . . § 472." Id. at 490; see also United States v. Edwards, 996 F.2d 1213 (Table), 1993 WL 219830 (4th Cir. 1993) (one dollar bill with removable foot-long piece of plastic taped on was altered for § 472); United States v. Reed, 686 F.2d 651, 651-52 (8th Cir. 1982) (defendant guilty of passing one dollar bill `altered' by gluing corners of ten dollar bill on to it). This Court agrees with the court in Wabo and finds that temporarily blackening a piece of currency is sufficient to constitute alteration under 18 U.S.C. § 472. The information available to authorities at the time of Idriss' federal arrest was thus sufficient to establish probable cause and the arrest was lawful.
In light of the Court's finding that probable cause existed to arrest Idriss for both Theft by Swindle and violation of § 472, and that Idriss' arrest was lawful, it follows that his statements following arrest, the search of his person following arrest, his consent to search his hotel room, apartment and computer, and any evidence obtained from these searches are not unlawful fruits of the arrest and cannot be suppressed on this basis. See United States v. Lewis, 183 F.3d 791, 794 (8th Cir. 1999) (warrantless search incident to lawful arrest is permissible); United States v. Harris, 956 F.2d 177, 179-80 (8th Cir. 1992) (evidence and statements following lawful arrest and search are not unlawful fruits); United States v. Condelee, 915 F.2d 1206, 1210 (8th Cir. 1990) (consent form executed following lawful arrest valid).
B. Miranda waiver
Idriss also moves to suppress his second in-custody statement taken October 10, 2003, while he was being transported from the Anoka County Jail to the Marshal's Office in Minneapolis, asserting that he had not fully waived his rights when he made the statement. An in-custody suspect's waiver of the privilege against self incrimination and right to have an attorney present is valid only if it is made voluntarily, knowingly, and intelligently. Miranda v. Arizona, 384 U.S. 436, 444 (1966). A waiver is knowing if "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986). It is voluntary if it is "the product of a free and deliberate choice rather than intimidation, coercion, or deception." Id. "A voluntary waiver need not assume any particular form; . . . it may be made orally by replying to questions. . . . A valid waiver of rights does not require an express declaration to that effect. . . . The validity of a waiver is determined from all of the surrounding circumstances. . . . " United States v. Valle, 644 F.2d 374, 375 (8th Cir. 1981) (quoting United States v. Mears, 614 F.2d 1175, 1178 (8th Cir. 1980); see also North Carolina v. Butler, 441 U.S. 369, 373, 375-76 (1979) (explicit waiver not necessary where defendant volunteered incriminating statements); United States v. Barahona, 990 F.2d 412, 418 (8th Cir. 1993) (valid waiver inferred despite defendant's refusal to sign form where defendant clearly understood rights and was cooperative with police).
Idriss contends that he did not fully waive his Miranda rights before making the October 10 statements because although he signed the top portion of the waiver acknowledging that he had been informed of and understood his rights, he did not sign the bottom portion waiving them. The Court disagrees. It is not disputed that Idriss was advised of, understood, and voluntarily and knowingly waived his Miranda rights prior to being interviewed at the Fridley police station on October 8. Agent Schulenberg testified, and Idriss acknowledged on the waiver form, that he was again advised of and understood his rights prior to speaking to Agent Schulenberg on October 10 during the transport. At that time, Idriss told Agent Schulenberg that he was willing to talk to him, and proceeded to make a detailed statement. There is no evidence that the statement was in any way coerced. Based on the totality of these circumstances, the Court finds that Idriss, made a knowing and voluntary waiver of his rights when he agreed to speak with Agent Schulenberg on October 10, 2003 while being transported from the Anoka County Jail to the United States Marshal's Office in Minneapolis. The October 10 statement will therefore not be suppressed on this basis.
IV. Motion to Dismiss Forfeiture Allegations
Idriss moves to dismiss the forfeiture allegation because it does not provide "notice that the defendant has an interest in property that is subject to forfeiture" as required by Fed.R.Crim.P. 7(c)(2). Fed.R.Crim.P. 32.2(a), which is derived from Rule 7, prohibits a court from entering a judgment of forfeiture "unless the indictment or information contains notice to the defendant that the government will seek the forfeiture of property." The Advisory Committee Notes to Rule 32.2 state that "subdivision (a) is not intended to require that an itemized list of the property to be forfeited appear in the indictment or information itself." The government argues that this commentary indicates that a forfeiture allegation that tracks the language of the statute but provides no connection to the facts of the case provides sufficient notice to a defendant. The Court disagrees.
"[T]o plead a forfeiture adequately, the government must set forth the property subject to forfeiture with enough particularity for the defendant to marshal evidence in his defense." United States v. Hatcher, 323 F.3d 666, 673 (8th Cir. 2003) (citing United States v. Fossick, 849 F.2d 332, 340-41 (8th Cir. 1988)). "Thus, the indictment must usually identify the specific instrumentalities or proceeds of crime that the government alleges are forfeitable under 18 U.S.C. § 982, so that the defendant can effectively challenge whether the specific property was an instrumentality or product of crime." Id. The indictment in this case seeks forfeiture of "any property constituting, or derived from, proceeds traceable to the violations" of §§ 471 and 472. This allegation does not contain the necessary specificity and will therefore be dismissed.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES defendant Idriss' objections [Docket No. 52] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 50]. Accordingly, IT IS HEREBY ORDERED that:1. Defendants' motion to dismiss counts 1 and 3 [Docket No. 25] is DENIED;
2. Defendants' motion to dismiss count 3 [Docket No. 26] is DENIED;
3. Defendant Idriss' motion to suppress statements [Docket No. 27] is DENIED;
4. Defendant Idriss' motion to suppress evidence [Docket No. 28] is DENIED;
5. Defendant Idriss' motion to dismiss forfeiture allegation [Docket No. 33] is GRANTED and the forfeiture allegation found in the Indictment [Docket No. 14] is DISMISSED.
IT IS HEREBY FURTHER ORDERED that plaintiff file and provide defendants with a bill of particulars no later than 5:00 p.m. on Thursday, March 4, 2004.