United States District Court, D. New Jersey
June 9, 2005.
UNITED STATES OF AMERICA, Plaintiff,
GEMAL SHEIKA, Defendant.
The opinion of the court was delivered by: WILLIAM BASSLER, District Judge
MEMORANDUM OPINION & ORDER
Defendant Gemal Sheika ("Defendant" or "Sheika") moves to
suppress certain statements that he made to FBI agents concerning
allegedly fraudulent credit card transactions, on the basis that
the FBI agents failed to inform him of his Miranda rights. For
the reasons set forth below, Defendant's motion to suppress is
denied. In addition, the United States' motion for reciprocal
discovery is granted. I. Background
At 6:30 a.m. on September 29, 2004, two FBI agents arrived at
Defendant's home in Garfield, New Jersey. Defendant permitted the
FBI agents to accompany him into his living room, where they
questioned him for approximately thirty minutes. The FBI agents
were interested in several credit card charges that were made
using a credit card machine operated by Sheika Crystal, a company
owned by Defendant's wife. According to his Certification filed
in support of this motion, Defendant was "reluctant to answer"
the agents' questions, but nevertheless did so out of "fear of
[his] wife being placed under arrest." (Def. 5/10/04 Certif. ¶
According to the FBI report memorializing the interview,
Defendant told the FBI agents that he owned and operated Sheika
Crystal, but that he used his wife's name in connection with the
business because of his poor credit. Defendant went on to state
that he and Ahmed Souda ("Souda"), the owner of a taxi and
limousine service, had used the credit card transactions as a way
for Souda to repay Defendant an $80,000.00 debt. It seems that on
multiple occasions, Souda gave Defendant credit cards which
Defendant then charged using the Sheika Crystal credit card
machine. When the issuing bank paid Sheika Crystal, Defendant
kept the money as payment for Souda's debt. By his own account,
Defendant also told the FBI agents that he "thought everything
was fine" with the credit card transactions because he had Souda's authorization. At the conclusion of the interview, the
agents served Defendant with a federal grand jury subpoena. It is
undisputed that the FBI agents did not give Defendant a Miranda
warning at any time during the interview.
Pursuant to the subpoena, Defendant appeared at FBI offices in
Newark, New Jersey on October 15, 2004, for fingerprinting and
photographs. It was not until December 22, 2004, however, two
months after Defendant was interviewed by the FBI at his home,
that the United States filed a complaint against Defendant in
federal district court. On January 17, 2005, three months after
he was questioned by the FBI at his home, local police in
Clifton, New Jersey arrested the Defendant after he was stopped
for a routine traffic violation and the police learned that there
was a federal warrant for his arrest.
On January 25, 2005, a federal grand jury returned an
Indictment against Defendant, charging him with conspiracy to
commit credit card fraud. The Superseding Indictment, returned on
March 22, 2005, charges Defendant with three counts: (1)
conspiracy to commit credit card fraud and mail fraud in
violation of 18 U.S.C. § 371; (2) credit card fraud in violation
of 18 U.S.C. 1029(a)(2); and (3) mail fraud in violation of
18 U.S.C. § 1341. Trial is scheduled to begin on July 6, 2005.
Defendant now argues that the statements that he made to FBI
agents on September 29, 2004 should be suppressed at trial because the agents failed to inform him of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966).
A. Motion to Suppress
Miranda warnings are not required unless law enforcement
agents interrogate a person who is in custody. See Miranda v.
Arizona, 384 U.S. at 444. To determine whether an individual was
in custody, a court must, after examining all of the
circumstances surrounding the interrogation, decide whether there
was "a formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest." Stansbury v.
California, 511 U.S. 318, 322 (1977) (per curiam) (internal
quotation marks omitted). The inquiry focuses on the objective
circumstances of the interrogation, not the subjective views of
the officers or the individual being questioned. Id. Where, as
here, the individual was not under arrest at the time the
statements were made, "something must be said or done by the
authorities, either in their manner of approach or in the tone or
extent of their questioning, which indicates that they would not
have heeded a request to depart or to allow the suspect to do
so." United States v. Leese, 176 F.3d 740, 743 (3d Cir. 1999)
(internal quotation marks omitted).
With these principles in mind, the Court finds that there is no
indication that the FBI's September 29, 2004 interview of Defendant constituted a custodial interrogation. Rather, the
interview had all of the indicia of voluntariness.
Defendant permitted the agents to enter his home. Defendant was
questioned in his own living room. The questioning lasted no more
than thirty minutes. Defendant asserted his innocence. Indeed,
nothing suggests that the agents would not have left Defendant's
house had Defendant requested that they do so, or that
Defendant's ability to otherwise stop the questioning was
restricted in any way.
In reaching this conclusion, the Court does not question
Defendant's claim that he was truly "frightened" during the
interview. Nor does the Court doubt that Defendant was "reluctant
to answer" the agents' questions. (Def. 5/10/05 Certif. ¶ 5.)
Those arguments are nevertheless insufficient to establish a
Miranda violation. As the Supreme Court explained in Oregon v.
[a]ny interview of one suspected of a crime by a
police officer will have coercive aspects to it,
simply by virtue of the fact that a police officer is
a part of a law enforcement system which may
ultimately cause the suspect to be charged with a
crime. But police officers are not required to
administer Miranda warnings to everyone whom they
429 U.S. 492
, 495 (1977). In other words, "a noncustodial
situation is not converted to one in which Miranda applies
simply because . . . the questioning took place in a `coercive environment.'" Id. Defendant's motion to suppress is
B. Suppression Hearing
In his moving papers, Defendant does not expressly request that
the Court hold a suppression hearing.*fn1 The Court
nevertheless concludes that a suppression hearing is not
warranted in this case.
A defendant is entitled to a hearing on pretrial motions only
when his moving papers present a "colorable claim" for relief.
United States v. Brink, 39 F.3d 419, 1067 (3d Cir. 1994). In
order to be "colorable," a defendant's motion must consist of
more than mere allegations of misconduct. United States v.
Voight, 89 F.3d 1050, 1067 (3d Cir. 1996); United States v.
Blackwell, 954 F.Supp. 944, 964 (D.N.J. 1997). There must be
issues of fact material to the resolution of the defendant's
claim. Id. As discussed above, Defendant has made no such
showing with respect to his allegations of a Miranda violation.
III. United States' Motion for Reciprocal Discovery
On February 16, 2005, the Court issued an Order for Discovery
and Inspection which, among other things, provides that "[t]he
defendant shall have ten (10) days from its receipt of discovery
from the United States to produce its reciprocal discovery." The
United States claims, and Defendant does not dispute, that the
government began providing Defendant with discovery materials on
February 24, 2005, but that the Defendant has thus far failed to
reciprocate. The Court therefore grants the United States' motion
for reciprocal discovery pursuant to Fed.R.Civ.P. 16(b).
For the reasons set forth in this Opinion, Defendant's motion
to suppress the statements he made to FBI agents on September 29,
2004 is denied. In addition, Defendant is ordered to provide
the government with reciprocal discovery on or before June 16,