UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
October 25, 2005
UNITED STATES OF AMERICA, PLAINTIFF,
AMR MOHSEN AND ALY MOHSEN, DEFENDANTS.
MEMORANDUM AND ORDER
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 the arresting officers witnessed defendant apply for a passport.
See Moss Decl. ¶ 9)("I believe that the Egyptian Consulate is a place from which Mohsen could obtain an Egyptian passport.").
Defendant did not travel outside the Northern District of California in the presence of the arresting officers, and defendant did not apply for any passports or other travel documents in the presence of the arresting officers. Therefore, the arresting officers had no reasonable grounds to believe that the defendant was violating the conditions of his supervised release in their presence.
There were reasonable grounds to believe that defendant was preparing to flee and intended to flee the jurisdiction of the court. A rational argument could be made that every release order contains an inherent prohibition against preparing to flee with intent to flee. However, no appellate court to this court's knowledge has so held. To the contrary, Congress apparently felt the need to emphasize the court's obligation to be specific as to what was forbidden in the release order. See 18 U.S.C. § 3142(h).*fn4 Accordingly, because it was not specifically proscribed by the release order, this court is led to conclude that preparing to flee with intent to flee was not prohibited by the order.
Therefore, the officers did not have authority to arrest defendant pursuant to § 3062, since he was not violating the release order in the presence of the agents.
B. Arrest Not Warranted Pursuant to § 3052
Section 3052 of Title 18 permits warrantless arrests not only when an offense is being committed against the United States in the presence of law enforcement agents but also when a law enforcement agent has "reasonable grounds to believe that the person to be arrested has committed or is committing [a] felony." The government argues that there was reasonable cause to believe defendant had committed a felony violation of 18 U.S.C. § 401*fn5 by applying for a passport. The government does not argue that the arresting agents had probable cause to believe that defendant had committed or was committing any other felony.
Defendant argues that only the court may initiate a prosecution for contempt under 18 U.S.C. § 3148(c) for a violation of a condition of release, but that statute contains no such limiting language. See 18 U.S.C. § 3148(c)("The judicial officer may commence a prosecution for contempt, under section 401 of this title, if the person has violated a condition of release."). This argument is foreclosed by the case law. Either a judicial officer or the government may initiate prosecution for criminal contempt. Steinert v. United States Dist. Court for the Dist. of Nev., 543 F.2d 69, 71 (9th Cir. 1976) ("[T]he usual manner of proceeding in criminal contempt is by Rule 42(b) notice [giving the court power to summarily punish a person who commits contempt in the presence of the court], rather than by indictment. But . . . the Supreme Court 'presumably approved prosecution of criminal contempt by indictment.'" (citing United States v. Leyva, 513 F.2d 774, 778 (5th Cir. 1975))). Thus, the court proceeds to the question of whether the officers had probable cause to believe that a felony had been or was currently being committed at the time of the arrest.
There is no general federal attempt statute. United States v. Hopkins, 703 F.2d 1102, 1104 (9th Cir. 1983). "A defendant can therefore only be found guilty of an attempt to commit a federal offense if the statute defining the offense also expressly proscribes an attempt." Id. Section 401 does not expressly proscribe an attempt to commit contempt of court.
Thus, if defendant's actions observed by the agents do not independently constitute a crime, the arrest was not warranted pursuant to § 3052. Any attempt to commit contempt was not sufficient. See § 3052 (not permitting arrest if there are reasonable grounds to believe a person will commit a felony in the future).
The government argues that there was reasonable cause to believe defendant had committed a felony violation of 18 U.S.C. § 401 by applying for a passport. However, § 401 does not state the circumstances under which contempt of court is to be charged as a misdemeanor and the circumstances under which it is to be charged as a felony.*fn6 Unlike the vast majority of crimes defined in Title 18, the definition of criminal contempt lists no maximum penalty. See 18 U.S.C. § 401; Frank v. United States, 395 U.S. 147, 149 (1969) (Congress "has authorized courts to impose penalties but has not placed any specific limits on their discretion; it has not categorized contempts as 'serious' or 'petty'"); (see also July 27, 2004 Superseding Indictment, Penalty Sheet Attachment for Defendant Aly Mohsen) (indicating "no maximum penalty" for Count 20, contempt of court).
Without guidance from Congress, how is this court to determine whether the defendant's conduct of applying for a passport constituted a felony or a misdemeanor?*fn7 "[I]n prosecutions for criminal contempt . . ., the severity of the penalty actually imposed is the best indication of the seriousness of the particular offense." Frank, 395 U.S. at 149. The law enforcement officers who arrested defendant had no way of knowing whether this court would sentence defendant, if defendant were convicted of a violation of § 401, to more than a year in prison for that violation. Even were the court to look to the sentencing guidelines for guidance on whether defendant's action would more likely be a felony or a misdemeanor, no answer is to be found there either. "Section 2J1.1 of the United States Sentencing Guidelines (U.S.S.G.) governs sentencing for contempt convictions under 18 U.S.C. § 401(3). Section 2J1.1 merely states 'Apply § 2X5.1.' U.S.S.G. § 2X5.1 instructs the court to apply 'the most analogous offense guideline.'" United States v. Voss, 82 F.3d 1521, 1531 (10th Cir. 1996). Section 2X5.1 also states that "If there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) shall control . . ."
"Because misconduct constituting contempt varies significantly and the nature of the contemptuous conduct, the circumstances under which the contempt was committed, the effect the misconduct had on the administration of justice, and the need to vindicate the authority of the court are highly context-dependent, the [Sentencing] Commission has not provided a specific guideline for this offense." U.S.S.G. § 2J1.1, Application Note 1. Thus, even during the era of mandatory sentencing guidelines, both the Congress and the Sentencing Commission gave individual judges discretion to formulate an individualized sentence.
As the application note suggests, one of the primary rationales for the criminalization of contempt is "to vindicate the authority of the court." Id. For the executive branch in this case to assume that the court would punish defendant by imprisonment a term of more than one year for applying for a passport would usurp the authority of the court, conferred upon it by Congress and the Sentencing Commission, to make this determination.*fn8 It would be entirely inappropriate for the court to pontificate ex ante about what the "analogous guideline" for violating the court's order forbidding defendant from applying for a passport would be.*fn9 It is not at all clear that applying for a passport warrants imprisonment for a term longer than twelve months. Defendant could have abandoned his plan and appeared at court as required, and it is not certain that the mere application for a passport would have warranted a sentence of over a year. Therefore, § 3052 did not permit defendant's arrest.
C. Suppression of the Evidence is the Proper Remedy
Because the arrest was not permitted by § 3052 or § 3062,*fn10 the fruits of that arrest must be suppressed. See U.S. Const. amend. IV; United States v. Watson, 423 U.S. 408, 417 (1976) ("The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony." (quotation marks and citation omitted)); Davis v. Mississippi, 394 U.S. 721 (1969) (evidence that is the product of an unlawful arrest must be suppressed).
Henry v. United States, 361 U.S. 98 (1959), the Supreme Court held that the conditions permitting a warrantless arrest under Section 3052 were coterminous with the Constitutionality of that warrantless arrest:
The statutory authority of FBI officers and agents to make felony arrests without a warrant is restricted to offenses committed "in their presence" or to instances where they have "reasonable grounds to believe that the person to be arrested has committed or is committing" a felony. The statute states the constitutional standard.
361 U.S. 98, 100 (1959) (citation omitted). Section 3052 has not been amended since Henry.*fn11
IT IS THEREFORE ORDERED that defendant's motion to suppress the fruits of the arrest be, and the same hereby is,
IT IS FURTHER ORDERED that the following items shall not be received in evidence at trial:
(1) defendant's Egyptian passport;
(2) any contact information for Egyptian officials found on Mohsen's person on March 27, 2004;
(3) evidence that $20,000 in $100 bills was found on defendant's person on March 27, 2004.