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United States v. Archibald

United States District Court, D. New Jersey

April 17, 2017



          CATHY L. WALDOR United States Magistrate Judge.

         THIS MATTER comes before the Court on Defendant's omnibus motion to dismiss insofar as Defendant moves to suppress evidence pursuant to Rules 12(b)(3)(C) and 41(h) of the Federal Rules of Criminal Procedure; also ripe for disposition are Defendant's request for a Franks hearing and Defendant's motion to disqualify counsel for the Government. (Mot. to Dismiss, ECF No. 11; Supp. Brief, ECF No. 42; Mot. to Disqualify, ECF No. 47.)[1] The Government opposes the motions. (Opp., ECF No. 24; Letter, ECF No. 43; Letter, ECF No. 44; Letter, ECF No. 49.) The Court held an evidentiary hearing on December 20, 2016 at which a federal agent and two confidential informants testified, and received post-hearing briefing. (ECF Nos. 61-63.) For the reasons set forth below, the Court denies the motion to suppress, denies the request for a Franks hearing, and denies the motion to disqualify.

         I. Background

         In denying Defendant's motion to dismiss the indictment, ECF No. 34, at 1, the Court summarized the instant matter as follows: Defendant, a crewman aboard a tuna fishing vessel, the Capt. Bob, is accused via a two-count indictment of knowingly conspiring, in violation of 18 USC § 371, and knowingly taking marine mammals on the high seas by means of a firearm in violation of the Marine Mammal Protection Act (MMPA), 16 USC §§ 1372(a)(1) and 1375(b), and 18 USC § 2. In short, the Government alleges that Defendant “and others used firearms to shoot at pilot whales onboard the [vessel] on the high seas, resulting in the serious injury and death of a pilot whale.” (Id., ¶¶ 3-8.)

         II. The Motion to Suppress

         The instant motion concerns the Government's use of two confidential informants, CI-1 and CI-2, in the course of its investigation and, in particular, evidence gathered as a result of CI-2's entry onto the vessel. It is undisputed that CI-2 boarded the vessel, took photos of a firearm thereon, and provided the photos to the Government. In support of his motion and by reference to the Fourth Amendment, Defendant argues that a subsequent search warrant[2] “was partially predicated on information that was obtained through an illegal warrantless search by CI-2[]” and submits that, “after he became a confidential informant and expecting a financial reward[, CI-2] traveled to the Capt. Bob in Southern New Jersey from his location, illegally boarded the vessel and broke into the forepeak to take photographs of the [rifle.]” (Motion, ECF No. 11-1, at 54, 59; Supp. Brief, ECF No. 42, at 4-7.) Defendant thereby contends that suppression from use at trial of the photos, the gun, and fruits of the search warrant is warranted because the Government knew of or acquiesced to the intrusive conduct and CI-2 intended to assist law enforcement in conducting the search. (Id., ECF No. 11-1, at 60-63.) In opposition, the Government “concede[s] that CI-2 boarded the Capt. Bob with a law enforcement purpose[, ]” but denies that the Government directed or acquiesced to CI-2's conduct. (Letter, ECF No. 49, at 4; Opp., ECF No. 24, at 48-49.)

         The Fourth Amendment's protection generally applies only to governmental action. Reedy v. Evanson, 615 F.3d 197, 225 (3d Cir. 2010) (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)); Skinner v. Railway Labor Executives'Ass'n, 489 U.S. 602, 614 (1989) (providing that such protection does not extend to a search or seizure “effected by a private party on his own initiative”). However, the Fourth Amendment protects against searches conducted by a private party if that party acted as an instrument or agent of the Government. Jacobsen, 466 U.S. at 113-14. Another Court in this Circuit has observed that, “[w]hile the Third Circuit has yet to articulate a test for use in determining an individual's private or governmental status, eight of its ten sister courts of appeals have focused the inquiry on the following factors: 1) whether the government knew of and acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.” United States v. Jackson, 617 F.Supp.2d 316, 325, n.8 (M.D. Pa. 2008) (collecting cases and observing that the First and Second Circuits declined to adopt test-based approaches[3]). That Court further noted that, “[g]iven the overwhelming consensus regarding the appropriate test to be applied to a governmental action inquiry, the court will follow suit and apply the aforementioned standard to the instant case.” Id. More recently, the Third Circuit tacitly endorsed such an approach when, albeit without reference to case law or a particular standard, it found that a District Court that applied the aforementioned two-prong standard[4] did not “err by finding that [airline] employees were not acting as agents of law enforcement or at the direction of law enforcement[ where an airline employee] testified that she opened the suitcase not for any law enforcement purpose.” United States v. Mitchell, 625 F. App'x 113, 117 (3d Cir. 2015), cert. denied, 136 S.Ct. 1161 (2016). “The burden of proving that a private search is governmental action lies on the movant[.]”[5] Johnson v. United States, 971 F.Supp. 862, 867 (D.N.J. 1997) (collecting cases); United States v. Feffer, 831 F.2d 734, 739 (7th Cir. 1987) (“[I]t is the movant's burden to establish by a preponderance of the evidence that the private party acted as a government instrument or agent.”).

         Following this standard and accepting as supported by the record the Government's concession that CI-2 intended to assist law enforcement, the Court considers whether the Government knew of and acquiesced in CI-2's intrusive conduct. Defendant called the following witnesses at the evidentiary hearing: NOAA Special Agent Jason Couse (Agent Couse) as well as the two confidential informants (CI-1, CI-2, or the informants), who are commercial fisherman on a different vessel from the Capt. Bob. Also, among the exhibits introduced were sworn statements from NOAA Special Agent Matthew Gilmore (Agent Gilmore) offered in support of a search warrant application. It must be noted in the first instance that the evidence presented revealed no basis to discount the credibility of the witnesses-although it is plain that these individuals nonetheless had sharply contrasting perceptions due to their distinct positions in the midst of ongoing state and federal criminal investigations. In the following findings of fact, [6] the Court accordingly is careful to summarize events from each perspective.

         In the Government's view, “CI-1 and CI-2 originally came to the attention of NOAA agents after they were stopped by state officers for minor violations[ and t]he state officers told CI-1 and CI-2 that if they had information about more serious violations, they could receive leniency. CI-1 and CI-2 indicated that they had information about the shooting of a pilot whale[.]” (Motion, ECF No. 11-2, at 36-37, Ex. D, Gilmore Aff., ¶ 15, n.1; USA v. Search Warrant, 14-mj-7180, ECF No. 1.) The informants essentially corroborated this account, though they offered considerable emphasis on the threats issued by state and federal agents to secure and maintain the informants' cooperation; these threats ranged from arrest on CI-1's outstanding warrant, to forfeiture of the informants' commercial fishing licenses, to general and apparently unsubstantiated threats of arrest. (Hearing Transcript, at 110-20, 123-25, 128-33; Hearing Ex. 18-19.) For example, CI-2 recalled “saying something to the effect to [Agent] Couse that [CI-2] didn't want to cooperate anymore, and [Agent Couse] would say something to the effect of ‘that's unfortunate for you.' And [CI-2] took it as a threat.” (Id., at 116.) CI-1 likewise testified that Agent Couse told them that they would “go to jail” if they ceased cooperating. (Id., at 131-33.) CI-1 could not identify a particular reason for which they could be jailed, but noted that, “when you've got a fed sitting there threatening you, you're going to go to jail.” (Id., at 133.)

         The informants further emphasized that agents were keen from the outset to secure information regarding individuals on the Capt. Bob and the shooting of the whale. (Trans., at 133.) And, “[i]n or about April 2014[, . . .] CI-1 stated that he heard the crew of the [Capt. Bob] say that they shot a pilot whale.” (Motion, ECF No. 11-2, at 36-37, Ex. D, Gilmore Aff., ¶ 15, n.1; USA v. Search Warrant, 14-mj-7180, ECF No. 1.) Around that time, Agent Couse and CI-2 discussed Defendant, his shipmates, and a firearm on the vessel:

CI-2: Did [law enforcement] have a bullet from inside [the whale]?
Agent Couse: A thirty caliber round.
CI-2: Well, then, they had good ballistics on it?
Agent: I believe so.
CI-2: Well that should be easy enough. You won't need me for that.
Agent Couse: Well, ya know, I have to be able to get ahold of the firearm. I have to know where the firearm is.
CI-2: If, I could tell you this though, if I see them come down carrying one and goes on that boat, then we could ...

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