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February 26, 2004.


The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


Defendants Silesia Flavorings, Inc. ("Silesia"), Ortwin Winter, and Juan Carlos Rodas-Misa have been charged with violating federal laws governing the safe transportation of hazardous materials on airplanes, and conspiring to commit such violations. Currently before the court are Defendants' pretrial motions seeking (1) suppression of certain statements made by Defendant Winter; (2) a bill of particulars; (3) production of exculpatory evidence; (4) suppression of certain documents and an evidentiary hearing; (5) early return of subpoenas pursuant to Rule 17(c); and (6) prior notice of the government's intention to use Rule 404(b) evidence at trial. For the reasons stated here, the motions are granted in part and denied in part.


  Silesia is an international manufacturer and distributor of "liquid flavoring extracts," which are chemicals used to flavor food products. From the time Silesia started doing business in Elk Grove Village, Illinois in 1997, Defendant Winter served as the company's Executive Vice-President. Defendant Rodas-Misa joined Silesia as a salesperson some time after the company moved to Hoffman Estates, Illinois in January 1999. (Indictment ¶¶ 1c, 1d, 1e.)

  The indictment alleges that many of the liquid flavoring extracts produced by Silesia constitute hazardous materials pursuant to Department of Transportation ("DOT") regulations. Page 2 Specifically, the extracts are said to be "flammable liquids" which must be transported in accordance with DOT safety regulations governing the content of shipping papers and the marking, labeling, and strength of packaging containing hazardous materials. (Id. ¶¶ 1f-1j.) According to the indictment, at least since April 1998 and continuing until February 2000, Winter and Rodas-Misa conspired to transport by aircraft certain flammable liquid flavoring extracts without proper DOT-required declarations, packaging, markings, and labeling (Count One). (Id. ¶¶ 2-9.) Rodas-Misa allegedly instructed one or more Silesia employees to arrange five shipments between April 30, 1998 and February 5, 1999, and Winter directed Rodas-Misa to transport a sixth shipment himself on or about December 19, 1999. On January 22, 2000, Rodas-Misa allegedly attempted to transport a seventh shipment on a flight from Chicago, Illinois to Mexico; however, the Federal Aviation Administration ("FAA") seized the shipment before Rodas-Misa boarded the plane. According to the indictment, Winter instructed a Silesia employee to provide the FAA with a false explanation for the attempted transportation. (Id. ¶¶ 7, 10a-10k.)

  In Counts Two through Fifteen of the indictment, the government charges Silesia and Rodas-Misa with substantive violations of the hazardous materials laws based on the seven liquid flavoring extract shipments. 49 U.S.C. § 46312, 5124. The indictment includes Winter in four of the substantive Counts relating to the shipments made on December 19, 1999 and January 22, 2000. (Indictment, Counts Seven, Eight, Fourteen, and Fifteen.)


 1. Winter's Motion to Suppress Statements

  A. Background

  Winter claims that on January 22, 2000, he and his family were traveling to Mexico. with Rodas-Misa when federal agents searched Rodas-Misa's luggage and seized a quantity of liquid flavoring that allegedly had not been properly declared and labeled as a flammable liquid. (Motion Page 3 ¶ 1.) Three weeks later on February 11, 2000, approximately 20 law enforcement agents arrived at Silesia's offices with a search warrant. The agents asked for Winter, showed him the warrant, and began assembling employees in the front lobby area. Some of the agents asked employees to provide their names, addresses, telephone numbers, and job titles, while other agents searched the premises. (Id. ¶¶ 2, 3.) According to a DOT report prepared by Special Agent Megan Murray, Winter "was advised" (Murray does not say by whom) "that any or all of his employees were free to leave" after everyone had been identified. Winter claims that neither he nor any of Silesia's staff believed this to be the case, and as the search proceeded, employees did remain in the lobby area. (Id. ¶ 4; Gov't Response, Ex. B.)*fn1

  Throughout the morning, agents selected employees to accompany them to other rooms inside the Silesia facility, where they were interviewed. At lunch time, the agents ordered pizza for themselves but did not offer the employees anything to eat. Winter, however, was allowed to retrieve a banana from his office, accompanied by an agent. (Motion ¶¶ 4, 11.) When the agents asked Winter to follow them to a separate office for questioning, they never read him his Miranda rights and, according to Winter, did not inform him that he was free to leave or that he could refuse to answer any questions. (Id. ¶ 5,) The DOT report produced by Special Agent Jacquie Wente indicates, to the contrary, that Winter was in fact specifically notified that he was not under arrest and was under no obligation to answer any questions. (Gov't Response, Ex. A.) The interview was conducted by three agents and lasted approximately 45 minutes. Winter notes that he is a German citizen raised and educated in Germany and states that he did not believe that he could refuse to speak with the agents or leave the premises. (Motion ¶ 5.) Page 4

  Winter now claims that he should have received a Miranda warning prior to being questioned by the agents on February 11, 2000, and that any statements he made during the interview must be suppressed.

  B. Analysis

  The Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966) requires that a suspect must be advised of certain rights before he may be subjected to a custodial interrogation in order to protect his right against self-incrimination. Id. at 444. Specifically, a person who has been "taken into custody or otherwise deprived of his freedom of action in any significant way" must be "warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. Statements obtained in violation of this rule may not be admitted for certain purposes in a criminal trial. Stansbury v. California, 511 U.S. 318, 322 (1994).

  These so-called Miranda warnings must be given only if the suspect is "in custody" and subject to "interrogation." U.S. v. Scheets, 188 F.3d 829, 840 (7th Cir. 1999). The parties agree that Winter was "interrogated" within the meaning of Miranda on February 11, 2000. They disagree, however, whether Winter was "in custody" at the time. "In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Scheets, 188 F.3d at 841 (quoting Stansbury, 511 U.S. at 322). This inquiry is based on "how a reasonable man in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 442 (1984).

  Winter argues that the agents "seized the entire staff of Silesia, including Mr. Winter" when they gathered the employees in the lobby and led them individually to separate rooms for Page 5 questioning. (Motion ¶ 7.) He further claims that he was "effectively in custody" during his interrogation because the agents were in full control of the environment. (Id. ¶ 9.) In support of this argument, Winter cites Sprosty v. Buchler, 79 F.3d 635 (7th Cir. 1996). In Sprosty, police officers converged on the defendant's mobile home to execute a search warrant for pornographic materials and stolen items. The officers found Sprosty sitting in a car in the driveway and pulled up beside and behind his car, blocking his path to the street. Sprosty accompanied the officers into the mobile home while they executed the search warrant and he sat guarded by an armed police officer for nearly three hours. Id. at 638. Throughout that time, the officers repeatedly asked Sprosty to show them any incriminating evidence. They also read Sprosty his Miranda rights but then continued to question him after he allegedly requested an attorney. Id. at 639.

  Prior to trial, Sprosty moved to suppress statements and information obtained during the search on the grounds that the officers violated his Miranda rights. The district court denied the motion, finding insufficient evidence that the officers were aware that Sprosty wanted an attorney. Id. at 639. On appeal, the government argued that Sprosty was not "in custody" for purposes of Miranda and that ...

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