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United States v. Avila

United States District Court, D. Massachusetts

August 27, 2019

UNITED STATES OF AMERICA
v.
JOSE AVILA, Defendant.

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge.

         I. Introduction

         Before the court is Defendant Jose Avila's Motion to Suppress Statements [#43] made to two federal agents on April 12, 2018. Avila contends that the interview amounted to a custodial interrogation, and that the agents never gave him Miranda warnings. Avila argues further that his incriminating statements were not voluntary. A hearing on the Motion to Suppress [#43] was held on August 15, 2019. See Elec. Clerk's Notes [#52]. For reasons discussed below, the Motion to Suppress [#43] is DENIED.

         II. Facts[1]

         Avila was born on an island in the Azores, Portugal. Mem. in Support of Mot. to Suppress (“Def. Mem.”), Ex. C, Affidavit of Jose Avila (“Avila Aff.”) ¶ 3 [#44-3]. He grew up speaking Portuguese and his schooling was in Portuguese and French. Id. ¶ 6. Avila never learned English in a formal setting, and although he understands much of what he hears in English and speaks English well, there are words and phrases that he does not know. Id. Avila came to the United States in 1977 and became a citizen in 1997. Id. ¶ 4. For the past 20 years, Avila has worked at EDA Staffing (“EDA”). Id. ¶ 7. EDA's principal place of business is in Foxborough, Massachusetts, but they have several locations. Id. Avila has been the general manager of the Chelsea location for the past 19 years. Id.

         On April 12, 2018, around 11:30 a.m., United States Postal Inspector Fred Busch and Special Agent Joshua Stasio, IRS Criminal Investigation, arrived at the EDA's Chelsea office, where Avila works. Id. ¶ 9. The agents arrived wearing street clothes. Inspector Busch's gun was holstered under a suit jacket, but Avila noticed the gun when Inspector Busch showed Avila his badge. Id. ¶ 9. The agents told Avila that they wanted to ask him a few questions. Id. ¶ 10.[2]

         Avila led the agents to his office because it was the only private place to talk. Id. ¶ 10. Avila also consented to the interview being recorded. See Gov. Tr. Apr. 12, 2018, Interview (“Gov. Tr.”) 3:11-19 [#46-1]; Def. Tr. Apr. 12, 2018, Interview (“Def. Tr.”) 3:21-4:6 [#44-4]. The agents recorded the interview with a handheld audio recorder. Mem. in Opp. to Mot. to Suppress, Ex. B, Busch Mem. of Interview (“Busch Interview Mem.”) [#46-2]. The interview began at 11:38 a.m. See Gov. Tr. 1:11-16 [#46-1]; Def. Tr. 2:1-7 [#44-4]. At no point did the agents advise Avila of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).[3]

         During the interview, the agents asked Avila questions about EDA, his role in the company, and EDA's business with C&W Services, to whom EDA provides staffing services. The agents also told Avila that they had a subpoena for records, and handed him the subpoena. Gov. Tr. 3:9-11 [#46-1]; Def. Tr. 3:21-22 [#44-4]. The page that Avila saw, Attachment A, stated that the subpoena was for documents, including documents concerning Avila. Avila Aff. ¶ 10 [#44-3]; Def. Mem., Ex. B, Grand Jury Subpoena (“Subpoena”), Att. A [#44-2]. The agents also told Avila that they had interviewed individuals at C&W regarding a possible kickback scheme involving Avila, and had already collected records and testimony regarding the scheme. See Gov. Tr. 16:16-17:2 [#46-1]; Def. Tr. 14:23-15: 9 [#44-4]. The tone of the interview was cordial and conversational, and, at one point, Avila rose to get water from the water cooler in his office. Avila ultimately responded affirmatively to a question relating to his alleged role in the kickback scheme. Gov. Tr. 73:4-74:10 [#46-1]; Def. Tr. 65:21-67:1 [#44-4].

         An hour and fifteen minutes into the interview, Inspector Busch told Avila that they were “just about done” with the interview, adding that “your guy wants to come back” and “finish what he's doin[g]” (a reference to the individual who had been sitting in Avila's office when the interview started, but who had left when the interview began). Gov. Tr. 105:5-9 [#46-1]; Def. Tr. 95:7-10 [#44-4]. Avila responded “that's OK, ” and continued answering questions. Gov. Tr. 105:10 [#46-1]; Def. Tr. 95:11 [#44-4]. At the end of the interview, Avila told the agents he hoped he could help more. Gov. Tr. 106:23-107:6 [#46-1]; Def. Tr. 96:17-97:1 [#44-4]. The interview ended at 12:56 p.m. See Gov. Tr. 108:5 [#46-1]; Def. Tr. 97:22 [#44-4].

         Avila and Inspector Busch testified that after the interview recording ended, Avila showed the agents Avila's family photographs and pictures of the Azores, where Avila grew up.

         Avila now asserts that the circumstances of his interrogation were custodial, and that his admissions of his role in a kickback scheme were not voluntary. Def. Mem. at 11, 18 [#44]. He alleges that the officers utilized physical and intellectual coercion, which included asking Avila repetitive questions, and selectively showing him a page of the subpoena to create the impression that the subpoena was directed at him personally. Avila Aff. ¶¶ 10, 12 [#44-3]. Avila asserts that the agents spoke in harsh tones, and that Avila, whose first language is Portuguese, became nervous and had trouble speaking in English after prolonged questioning. Id. ¶¶ 6, 12. Avila also asserts that he did not know the meaning of the key words (such as “kickback”) to which the agents referred throughout the interview. Id. ¶ 12.

         IV. Discussion

         A. Was the Interview a Custodial Interrogation?

         Before conducting a “custodial interrogation, ” law enforcement must advise a suspect of his Fifth Amendment rights by administering a Miranda warning. United States v. Crooker, 688 F.3d 1, 10-11 (1st Cir. 2012). An interview is custodial when, “viewed objectively, [the circumstances of the interview] constitute the requisite restraint on freedom of movement of the degree associated with a formal arrest.” United States v. Hinkley, 803 F.3d 85, 90 (1st Cir. 2015) (quotations omitted). In assessing the circumstances, courts consider such factors as location, number of officers, degree of physical restraint, duration, and character of interrogation. United States v. Masse, 816 F.2d 805, 809 (1st Cir. 1987). A ...


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