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United States v. Cruz-Mercedes

United States District Court, D. Massachusetts

May 15, 2019




         The Defendant, Hector Antonio Cruz-Mercedes, was charged in a multi-count indictment alleging a conspiracy to obtain income tax refunds fraudulently from the United States Treasury by filing materially false income tax forms.

         Mr. Cruz-Mercedes moved [Dkt. No. 57] to suppress evidence seized by the Government as a result of what he contends was an unlawful arrest on June 7, 2012. He also moved [Dkt. No. 60] in what I will term his Daubert motion - in recognition that it sought my gate keeper determination regarding expert evidence under the protocols established by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 578 (1993) - to exclude the Government's expert testimony relating to identification of fingerprints found on fraudulent Treasury checks seized during an automobile search as a result of his allegedly unlawful June 7, 2012 arrest.

         After I denied his motion to suppress in part and declined in ruling on the Daubert motion to exclude the Government's expert fingerprint testimony, Mr. Cruz-Mercedes entered - with the consent of the Government and the court - a conditional plea of guilty pursuant to Fed. R. Crim. P. 11(a)(2).[1]

         As I promised the parties, I provide in this Memorandum a full written explanation for my brief ore tenus rulings granting in part and denying in part the motion to suppress [Dkt. No. 57] and denying the motion to exclude the government's expert testimony regarding fingerprints [Dkt. No. 60].

         I. BACKGROUND

         A. Factual Background

         1. The Original Investigation

         In March 2012, the Department of Homeland Security's Investigation unit (“HSI”) in Boston received information from a confidential informant (“CI”) that individuals in New York were filing false tax returns using Social Security numbers stolen from Puerto Rican residents. The CI informed HSI agents that the people involved in the operation were looking for ways to cash fraudulently-obtained refund checks and, at the direction of HSI and the United States Secret Service, arranged to meet with these individuals to assist in cashing the checks.

         Between April and May 2012, the CI met with Odalis Castillo-Lopez in South Attleboro, Massachusetts on several occasions to pick up the fraudulently-obtained checks. On two such occasions, the checks were wrapped in a sheet of paper listing the names and Social Security Numbers of the individuals to whom the checks were issued.

         Through a series of recorded telephone calls, the CI arranged to meet Mr. Castillo-Lopez a fourth time on June 7, 2012 to pick up approximately $160, 000 in checks in exchange for a payment of $80, 000. Agents from HSI and the Secret Service planned to arrest Mr. Castillo-Lopez at that meeting. In anticipation of doing so, they established surveillance at the meeting location, a parking lot next to a McDonald's in South Attleboro.

         2. The Arrest

         On June 7, 2012, Mr. Castillo-Lopez and another individual, later identified as the Defendant, arrived at the location in a white Volkswagen Passat with New York license plates (“the vehicle”) just after noon. Mr. Castillo-Lopez was driving; the vehicle was later identified as being owned by a person named Alma Martinez. Agents observed both men exit the car and enter the McDonald's. Special Agents John Soares and Michael Riley of HSI and Special Agent Fred Mitchell of the Secret Service then entered the McDonald's. Agents Soares and Mitchell approached Mr. Castillo-Lopez, [2] asked him some questions, and escorted him out of the McDonald's. Mr. Castillo-Lopez was then arrested and taken to the Boston Field Office of HSI for processing.

         Agent Riley approached Mr. Cruz-Mercedes in the McDonald's and had a brief conversation with him. There is no evidence of record about the content of that conversation, and there is some dispute about what happened next. Both Agent Soares and Agent Mitchell testified that Mr. Cruz-Mercedes was escorted out of the McDonald's by Agent Riley, and that he was eventually questioned outside, near the vehicle, by Special Agent Kevin Cronin of HSI. Agent Soares testified that Agent Riley did not handcuff Mr. Cruz-Mercedes, and that he was not handcuffed until he was subsequently arrested by Agent Cronin. However, Agent Mitchell testified that Mr. Cruz-Mercedes was handcuffed inside the McDonald's, before being escorted out and Agent Cronin testified that Mr. Cruz-Mercedes had been placed in custody before being brought out to the parking lot to talk to him. I am satisfied that, by the time he was brought to the parking lot, Mr. Cruz-Mercedes had been taken into custody, irrespective of whether the initial encounter inside the McDonald's could be characterized as a “Terry” investigative stop.[3]

         Once he was brought out to the parking lot, Mr. Cruz-Mercedes had a brief conversation with Agent Cronin, during which he initially identified himself as “Pedro Colon” and handed over several identification documents, including a Massachusetts driver's license and a Social Security card listing his name as Pedro Colon. Agent Cronin, indicating that he did not believe the Defendant was telling the truth about his identity, pressed Mr. Cruz-Mercedes further, asking him if the documents were, in fact, his. In response to this further investigative inquiry, the Defendant told Agent Cronin that his name was, in fact, Hector Cruz-Mercedes, and that he was a native of the Dominican Republic who had entered the United States unlawfully. Agent Cronin then formally arrested Mr. Cruz-Mercedes for being in the United States unlawfully and conducted a search of the Defendant incident to arrest; that search uncovered two cell phones. The Defendant was transported to the HSI office for processing, at which point he was fingerprinted. At no point during his encounter with law enforcement after being escorted out of the McDonald's was Mr. Cruz-Mercedes advised of his Miranda rights.

         3. The Search of the Vehicle

         After both Mr. Cruz-Mercedes and Mr. Castillo-Lopez were taken away from the parking lot, other agents conducted a cursory search of the vehicle and concluded that the parking lot was not a secure location. The vehicle was impounded and brought to the Government Center Garage in Boston's O'Neill Federal Building. There, the vehicle was searched more thoroughly by Agents Soares and Mitchell, who were looking specifically for the additional Treasury checks that the CI had arranged to pick up from Mr. Castillo-Lopez. The search uncovered an envelope tucked into the headliner above the driver's seat. The envelope contained ten Treasury checks and, as with two of the earlier check deliveries, a list of names, dates of birth, and Social Security numbers corresponding to the payees of the checks.

         The search also uncovered a bank deposit slip from an account at Bank of America and a personal check made out to Saw Mills Auto Sales. The name on the check was “Anna Cruz, ” and the check included her associated address. Further investigation indicated that this check was associated with the Bank of America account listed on the deposit slip found in the vehicle. This was one of the bank accounts that Mr. Castillo-Lopez had instructed the CI to use to deposit proceeds from the cashing of the Treasury checks.

         At some point during the investigation, evidence found in the vehicle was sent to Sergeant John Costa, of the Massachusetts State Police (“MSP”), to be tested for fingerprints. Sgt. Costa recovered eight prints, but only one was clear enough to form the basis of an identification. Sgt. Costa subsequently matched the latent print to a known print taken from Mr. Cruz-Mercedes when he was processed by HSI after his June 7, 2012 arrest.

         B. Procedural Background

         On June 7, 2012, a Criminal Complaint was issued against Mr. Castillo-Lopez for Conversion of Government Property and Money Laundering, in violation of 18 U.S.C. § 641 and § 1956 respectively.

         On August 9, 2012, a Criminal Complaint was issued against Mr. Cruz-Mercedes for the Deceptive Use of a Social Security Number, in violation of 42 U.S.C. § 408(a)(7)(B). That Complaint was based on the fact that Mr. Cruz-Mercedes initially identified himself to Agent Cronin as Pedro Colon and produced several identification documents, including a Social Security Card, with the name Pedro Colon.

         Mr. Cruz-Mercedes was arrested on August 16, 2012[4] in Bronx County, New York and appeared that same day before Magistrate Judge Peck in the Southern District of New York. Judge Peck released Mr. Cruz-Mercedes on a $10, 000 bond and ordered him to appear in this Court on or before August 24, 2012.

         Mr. Cruz-Mercedes then fled the country and returned to his native Dominican Republic. Once Mr. Cruz-Mercedes had been located, the Government arranged to extradite him and he made his initial appearance in this Court before Magistrate Judge Cabell on December 1, 2017.[5]

         In anticipation of trial, Mr. Cruz-Mercedes filed his motion to suppress all evidence seized in connection with his June 7, 2012 arrest, including Treasury checks taken from the vehicle. He argued that his arrest was unlawful because it was unsupported by probable cause and that the complained-of evidence constituted the fruits of an unlawful seizure required to be suppressed under the teachings of Wong Sun v. United States, 371 U.S. 471 (1963). Mr. Cruz-Mercedes separately filed his Daubert motion to exclude the testimony of the Government's fingerprint expert regarding the process of matching his known fingerprints to the fingerprint discovered on the Treasury checks. The government's expert had filed a report opining that Mr. Cruz- Mercedes's fingerprints appeared on at least one Treasury check seized from the vehicle.

         At an evidentiary hearing on August 29, 2018 regarding both motions, I heard testimony from Agents Soares, Cronin, and Mitchell with respect to the motion to suppress, and from Sergeant John Costa of the MSP and Dr. Alicia Wilcox from Husson University with respect to the Daubert motion. Ruling from the bench that day, I denied the Daubert motion, and directed supplemental briefing with respect to the motion to suppress.

         On September 11, 2018, I held the final pretrial conference, during which I ruled from the bench with respect to the motion to suppress. As relevant to this Memorandum, I declined to suppress the underlying fingerprint evidence, but did suppress statements made by Mr. Cruz-Mercedes to Agent Cronin beyond his initial self-identification as Pedro Colon.

         The following day, Mr. Cruz-Mercedes, with assent from the Government, requested that he be permitted to enter a conditional plea of guilty, reserving his right to challenge my determinations regarding the fingerprint evidence. On September 13, 2018, I accepted the conditional guilty plea.

         By Judgment dated January 9, 2019, I sentenced Mr. Cruz-Mercedes to a term of imprisonment of 36 months and one day, followed by three years of supervised release with standard and special conditions. I also required restitution in the amount of $34, 8000, and a mandatory special assessment of $2, 200. At the same time, I signed a judicial order of removal based on the stipulation of the parties that would require Mr. Cruz-Mercedes be deported after his release from Bureau of Prisons custody. On January 15, 2019, Mr. Cruz-Mercedes timely filed his notice of appeal.


         Mr. Cruz-Mercedes's motion [Dkt. No. 57] to suppress was directed at all evidence seized as a result of his June 7, 2012 arrest. He argued that his arrest that day, when effectuated, was unsupported by probable cause and therefore violated the Fourth Amendment. Consequently, he contended the fruits of his arrest - including specifically the envelope containing Treasury checks with any fingerprint alleged to be his on those checks - should be suppressed.

         I address this contention in its larger context.

         A. Evidence Found in the Vehicle

         In his motion to suppress, Mr. Cruz-Mercedes argued that the impoundment, and subsequent search, of the vehicle without a warrant and without probable cause violated the Fourth Amendment, and that the fruits of that search - including an envelope containing ten fraudulently obtained Treasury checks totaling $75, 808.14, a hand-written list written on the envelope with the names, Social Security Numbers, and monetary amounts of the checks, a personal check from payee Ana Cruz, and a deposit slip from a Bank of America account - should be suppressed.[6] As a preliminary matter, I was not persuaded that Mr. Cruz-Mercedes had standing to object to the impoundment and search of the vehicle. See infra Section II.A.1. Even if he did have standing, I concluded on the merits, see infra Sections II.A.2. and B., that the evidence seized from the vehicle was obtained lawfully because the vehicle search falls within the scope of one or more of several enumerated exceptions to the probable cause and warrant requirements of the Fourth Amendment.

         1. Standing

         In order to have standing to challenge the admission of evidence seized from the vehicle, Mr. Cruz-Mercedes must be able to demonstrate that he has “a constitutionally protected reasonable expectation of privacy” in the vehicle's contents such that a search of the vehicle would be “presumptively unreasonable in the absence of a search warrant.” Katz v. United States, 389 U.S. 347, 360-61 (1967); see also United States v. Salvucci, 446 U.S. 83, 92 (1980); Rakas v. Illinois, 439 U.S. 128, 143 (1979). Unlike other constitutional protections, “Fourth Amendment rights are personal rights, which . . . may not be vicariously asserted.” Rakas, 439 U.S. at 123-24 (internal citations and quotations omitted). “[S]ince the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, . . . it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protection.” Id. at 124 (internal citation omitted).

         Even assuming the search of the vehicle was unlawful, then, Mr. Cruz-Mercedes could object to the introduction of the evidence found in the vehicle only if he was personally aggrieved by the search - that is, if he could demonstrate that he had an objectively reasonable expectation of privacy in the vehicle that was invaded. See Katz, 389 U.S. at 361 (Harlan, J., concurring). I conclude he cannot.

         Though “a passenger is seized, just as the driver is, ” when a vehicle is stopped by law enforcement, his presence in the vehicle does not automatically give him standing to object to a subsequent search of the vehicle. United States v. Symonevich, 688 F.3d 12, 19 (1st Cir. 2012) (citing Arizona v. Johnson, 555 U.S. 323, 332 (2009)). Under First Circuit precedent, “passengers in an automobile who assert no property or possessory interest in a vehicle cannot be said to have the requisite expectation of privacy in the vehicle to permit them to maintain that the search did ...

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