RE: MOTION TO SUPPRESS FRUITS OF ARREST
Defendant Amr Mohsen moves to suppress the fruits of his arrest on March 27, 2004, on the ground that the arresting agents did not have statutory authority to make the warrantless arrest.
The events of the underlying patent litigation that resulted in perjury and obstruction of justice counts against defendant are well known to the government and defendant. On Thursday, March 25, 2004, the FBI placed defendant under surveillance, and this surveillance did not end until approximately 10:30 p.m. on March 27, 2004. (Moss Decl. ¶ 7). During the morning of March 25, members of defendant's family were seen moving items in front of their home for trash pick up. (Id. ¶ 8). At approximately 9:00 p.m. on March 25, 2004, FBI Special Agent Joel Moss saw defendant at the Egyptian Consulate in San Francisco. (Id. ¶ 9). Defendant gained entry into the consulate and was inside for five minutes. (Id. ¶ 9).
On March 26, 2004, Mohsen deposited and withdrew large amounts of money from three banks. At approximately 2:30 p.m. on March 26, defendant deposited two checks in the amounts of $30,000 and $34,000 at a Bank of America branch in Santa Clara. A bank employee at that branch told FBI agents that defendant asked "how much can you give me in cash?" (Moss Decl. ¶ 10). A bank teller at that branch overheard defendant using his cell phone and mentioning that he had given his wife and son Power of Attorney over his assets. (Id.). Approximately five minutes after he left the Santa Clara branch of Bank of America, Mohsen arrived at the Silicon Valley Bank. (Id.). There he deposited a $30,000 cashier's check and withdrew $30,000 in cash. (Id.). Defendant presents evidence, neither contained in the Weber affidavit nor the Moss declaration, that "Mohsen did not appear to be nervous to [Cherine] Drake," Operations Officer for the Silicon Valley Bank, and that he did not have a problem with filling out a Currency Transaction Report. (Def.'s Am. Reply to Pl.'s Mem. in Opp'n to Def.'s Mot to Suppress Evidence Obtained as a Result of the Arrest Ex. 1 (FBI Investigation Report of Interview with Cherine Drake)). Approximately two hours after leaving the Silicon Valley Bank, defendant drove to a Bank of America branch in Sunnyvale. (Moss Decl. ¶ 10). There he deposited a check drawn on the State Bank of Boston in the amount of $54,000 and asked for as much cash as possible. (Id.). He withdrew $10,000 and was told that the remainder of the deposited funds would be available at midnight. (Id.).
The next day, March 27, at approximately noon, defendant entered a branch of Bank of America in Los Gatos and was observed receiving a stack of United States currency approximately 1.5 inches thick. (Id.). About an hour and a half later, defendant went to a hotel in Los Gatos and used a pay telephone. (Id. ¶ 11). Defendant was overheard asking about a flight and time. (Id.). Defendant was also overheard rescheduling an appointment for later that afternoon. (Id. ¶12.*fn1 At about 3:00 p.m., defendant was observed at a dentist's office in Fremont. (Id.). An assistant at that office reported that defendant told her that he was going to be out of town for at least two months. (Id.). At 4:50 p.m. the same day, Special Agent Moss overheard defendant on a public telephone say that he was in the Bay Area and would be there for a few hours. (Id. ¶13). At approximately 7:00 p.m., defendant was observed using a pay telephone for about an hour and a half, during which time defendant was overheard trying to book a charter flight from Fort Lauderdale, Florida to the Cayman Islands. (Id.). Defendant was also overheard mentioning that one person would be traveling on an Egyptian passport. (Id.). Defendant was also overheard successfully booking a flight from San Jose to Fort Lauderdale via Phoenix, departing San Jose at 9:00 a.m. the next day, March 28).
Defendant was arrested at approximately 10:30 p.m. on March 27, 2004. (Id. ¶ 15). Incident to arrest, FBI Special Agent Bruce Whitten recovered approximately $20,000 in $100 bills and an Egyptian passport, apparently issued by the Egyptian Consulate in San Francisco on March 25, 2004, in the name of Dr. Amr Mohamed Abdel-Latif Mohsen. (Id.).
The question presented is whether law enforcement agents had statutory authority to arrest defendant without a warrant. Defendant argues that all fruits of the search of defendant, including the fact that he possessed a passport and $20,000 in cash at the time of his arrest, as well as all evidence found within the car that was seized pursuant to the arrest, inventoried, and searched on March 30, 2004, must be suppressed.
Because defendant was arrested by an FBI special agent for either a violation of the terms of his release set by a federal court or for contempt of that court, or both, federal statutory law governs the warrantless arrest. United States v. Gaines, 563 F.2d 1352, 1357 (9th Cir. 1977) ("Inasmuch as the bank robbery violated federal law, the FBI officer was properly the principal actor in the stop and the subsequent arrest. Accordingly, both the stop and arrest are governed by federal law" (citing 18 U.S.C. § 3052)). The government relies upon two separate statutes, 18 U.S.C. § 3052*fn2 and 18 U.S.C. § 3062*fn3, and only these statutes, to justify the arrest.
A. Arrest Not Warranted Under Section 3062
Section 3062 of Title 18 of the United States Code permits a federal law enforcement officer to make a warrantless arrest when he has reasonable grounds to believe that an accused person is violating, in the officer's presence, certain conditions of the accused's pretrial release imposed upon him by a federal judicial officer. See 18 U.S.C. § 3062 (authorizing warrantless arrest when accused is violating: "restrictions of personal associations, place of abode, or travel"; restrictions on "contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense"; restrictions of possession of "a firearm, destructive device, or other dangerous weapon"; restrictions on "excessive use of alcohol, or any use of a narcotic drug or other controlled substance"; or a requirement that the accused "return to custody for specified hours" after work or school).
Defendant and the government agree that the only restrictions that could have provided grounds for the warrantless arrest of defendant in this case were the following: (1) "Defendant shall not travel outside the Northern District of California"; and/or (2) "Defendant shall surrender all passports and visas to the Court by 4-9-03 and shall not apply for any passports or other travel documents." (See Moss Decl. Ex. 1 (Apr. 8, 2003 Conditions of Release and Appearance)).
Defendant argues that, since nobody saw him receive the passport at the consulate that Thursday night, the government agents were without authority to make a warrantless arrest pursuant to § 3062. The government concedes that none of ...