United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani United States District Judge.
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
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
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.
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
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].
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].
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.
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.
Was the Interview a Custodial Interrogation?
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 ...