United States District Court, N.D. Illinois
February 26, 2004.
UNITED STATES OF AMERICA, Plaintiff,
SILESIA FLAVORINGS, INC., ORTWIN WINTER, and JUAN CARLOS RODAS-MISA, Defendants
The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge
MEMORANDUM OPINION AND ORDER
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.
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
1. Winter's Motion to Suppress Statements
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
¶ 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.)
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.
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
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 it
therefore was irrelevant whether he asked for an attorney. Id.
at 640. The Seventh Circuit disagreed.
The court first outlined several factors to consider in determining
whether a suspect is "in custody": (1) "whether and to what extent the
person has been made aware that he is free to refrain from answering
questions"; (2) "whether there has been prolonged, coercive, and
accusatory questioning, or whether police have employed subterfuge in
order to induce self-incrimination"; (3) "the degree of police control
over the environment in which the interrogation takes place, and in
particular whether the suspect's freedom of movement is physically
restrained or otherwise significantly curtailed"; and (4) "whether the
suspect could reasonably believe that he has the right to interrupt
prolonged questioning by leaving the scene." 79 F.3d at 641 (internal
citations omitted). The court noted that while Sprosty was in familiar
surroundings and was not handcuffed or
physically restrained to his chair, he could not get his car out of
the driveway, he was guarded by an armed and uniformed police officer
throughout the nearly three-hour search, and he was subjected to
persistent questioning as to the location of any incriminating evidence.
Id. at 641-42. Thus, Sprosty was "in custody" for purposes of
Miranda and the police officers were required to cease
interrogating him once he asked for an attorney. Id. at 643.
Winter claims that some 20 federal agents raided Silesia with a "huge
show of force" and that he and his employees reasonably believed that
they were not free to leave. He notes that the agents did not inform the
employees that they could leave until the afternoon when someone who had
already been interviewed asked if he could go. (Motion ¶ 11.) He also
questions why the employees would stay for interviews if they did not
reasonably believe they were under arrest. (Winter Reply, at 1-2.)*fn2
In Winter's view, "the whole point was to make [him] believe that he was
not free to leave and that he had to submit to questioning."
(Id. at 4.) This argument misses the mark because Winter does
not dispute that he himself was told that the employees were free to
leave after they had been identified, as stated in Special Agent Murray's
report. (Gov't Response, Ex. B.) A reasonable person in Winter's position
would not believe the employees were under arrest, which undermines
Winter's claim that the police were attempting to create an atmosphere of
intimidation to make him think he could not leave. Winter finds it
significant that shortly after the agents secured the premises, an
individual entered the building and then immediately exited while making
a cellular telephone call, and the agents requested that the individual
return to the building. (Motion ¶ 12.) It appears, however, that this
episode occurred before the identification process was complete and
before agents had told Winter that his employees were free to leave.
Winter was questioned for only 45 minutes, not three hours as in
Sprosty. Nor does Winter assert that he and the other employees
were guarded by armed agents, repeatedly questioned
about the location of incriminating evidence, or blocked from
exiting the building in any way. Significantly, the interviews occurred
at Winter's place of business, and no one was physically restrained.
See, e.g., U.S. v. Randle, 966 F.2d 1209, 1212 (7th Cir. 1992)
("noticeably absent from the affidavit are allegations that the agents
used intimidation, force or threats of force, that they displayed
weapons, or that they physically restrained [the defendant] in any way
whatsoever"). In recognition of the fact that Winter is a German citizen,
the agents also specifically informed him that one of the agents spoke
fluent German and could translate for him if necessary.
Winter claims that Special Agent Wente's report is untrue to the extent
it indicates that prior to his interview, the agents told him that he was
not under arrest and did not have to answer any of their questions.
Winter notes that the report does not state that agents told him he was
free to leave; he seeks a suppression hearing on this issue.
(Id. ¶ 15.) To establish that a hearing is necessary, Winter
"must present `definite, specific, detailed, and nonconjectural' facts
that justify relief." Randle, 966 F.2d at 1212 (quoting U.S.
v. Hamm, 786 F.2d 804, 807 (7th Cir. 1986)). If the agents did not
advise Winter that he was not under arrest and under no obligation to
answer questions, that would tend to support his claim that he was in
custody during the interview. Winter failed to submit a sworn affidavit
to that effect, however, and merely asserts that the agents "probably did
not tell" him of those rights because similar admonitions do not appear
in a report relating to the questioning of another Silesia employee.
(Def. Reply, at 4.) Winter's conclusory and speculative allegation in
this regard is insufficient to justify a hearing. See U.S. v.
Segal, 207 F. Supp.2d 835, 838 (N.D. III. 2002) ("[a] defendant who
seeks to suppress evidence bears the ultimate burden of proof and
persuasion of making a prima facie showing of illegality . . .
Reliance on vague, conclusory allegations is insufficient").
Significantly, Winter does not deny that the agents never physically
restrained him or blocked him from leaving the building, or that the
agents told him his employees were free to leave after the morning
identification process. Winter also makes no claim that the agents used
of force or a display of weapons. Segal, 207 F. Supp.2d
at 838 ("the essential element of a custodial interrogation is
coercion"). In light of these facts, Winter has failed to meet his burden
of demonstrating that he was in custody on February 11, 2000. Compare
U.S. v. Watson, No. 93 CR 716, 1997 WL 124268, at *3-4 (N.D. III.
Mar. 14, 1997) (looking at totality of circumstances, suspect was in
custody where he was told twice that he was not under arrest but was
never told that he was free to leave or to refuse to answer questions;
suspect was questioned at the police station, in the officers' car, and
at the crime scene for a four-hour period; and officers watched the
suspect change from his sleeping garments into his street clothes).
To avoid this result, Winter claims that it is reasonable to infer that
"when agents asked [him] to step into another office to answer their
questions, they did whatever they could to leave him with the impression
that he did have to talk to them." (Motion ¶ 14.) As noted, such
vague, conclusory allegations are insufficient for purposes of a motion
to suppress. Randle, 966 F.2d at 1212. Winter has failed to
demonstrate that he was "in custody" on February 11, 2000 and his motion
to suppress statements made during his interview on that date is denied.
2. Defendants' Motion for a Bill of Particulars
A bill of particulars is designed to "inform the defendant of the
charges, enable him to prepare a defense, and to minimize the danger of
double jeopardy and unfair surprise at trial." U.S. v. Caputo,
288 F. Supp.2d 923, 935 (N.D. III. 2003). A bill of particulars should
be granted if the indictment does not set forth the elements of the
charged offense or does not sufficiently advise the defendant of the
charges against him to enable him to prepare for trial. Id.
(citing U.S. v. Kendall, 665 F.2d 126, 134 (7th Cir. 1981)).
See also U.S. v. Hernandez, 330 F.3d 964, 975 (7th Cir. 2003).
In determining whether an indictment sufficiently advises a defendant of
the charges, a court may consider the complexity of the charges, the
clarity of the indictment, and the availability of discovery.
Id. (citing U.S. v. Swiatek, 632 F. Supp. 985, 988
(N.D. III. 1986)). A defendant has
a constitutional right to know the offenses with which he is
charged, but he is not entitled to the details of the government's case.
Id.; Kendall, 665 F.2d at 135.
In their Motion for a Bill of Particulars, Defendants ask that the
government be required to identify certain individuals in the Indictment,
such as the Silesia employees whom Winter and Rodas-Misa instructed to
arrange illegal liquid flavoring extract shipments, and the Chief
Executive Officer of Silesia's parent corporation. (Motion ¶¶ 3,
4A-4H.) Defendants argue that these are people "who will necessarily be
witnesses at the trial and there is no basis not to identify them."
Defendants further assert that they need the individual names to
effectively investigate and defend against the charges. (Id.
¶ 3.) The government responds that the indictment clearly sets forth
the specific charges against Defendants, including the regulations they
allegedly violated, the overt acts giving rise to the conspiracy charges,
and the specific shipment dates, amounts, and flash points i.e.,
"the minimum temperature at which a liquid gives off vapor within a test
vessel in sufficient concentration to form an ignitable mixture with air
near the surface of the liquid." 49 C.F.R. § 173.120(c)(1); (Gov't
Response, at 8.) The government also notes that it has made extensive
disclosures regarding the documents and testimony it plans to introduce
at trial, including the various shipping documents. (Gov't Response, at
In U.S. v. Hernandez, the defendants sought a bill of
particulars for the names of the minors they allegedly used to sell drugs
in violation of federal law. 330 F.3d at 974-75. The district court
denied the defendants' motion because the names of the minors were
available through discovery, and the Seventh Circuit affirmed. "[A] bill
of particulars is not required when the information a defendant needs to
prepare his defense is available through `some other satisfactory form,'
such as discovery." Id. at 975 (quoting U.S. v. Canino,
949 F.2d 928, 949 (7th Cir. 1992)). The government had turned over
ledgers, transcripts of audiotapes, and testimony summaries that
identified the specific minors who were allegedly involved in the illegal
drug operation. Based on those discovery materials, the defendants "could
reasonably anticipate the evidence the
government would produce at trial and adequately prepare their
defense based on this evidence." Id.
In this case, similarly, the government has disclosed documents and
testimony it plans to introduce at trial, including reports of witness
interviews and the shipping documents relating to the allegedly illegal
shipments. Defendants do not dispute that they could determine the
identities of any relevant individuals or locate relevant shipping
records from these discovery materials. Nor do they argue that the
indictment fails to set out the elements of the charged offenses.
Defendants' unsupported assertion that "there is no basis not to
identify" the unnamed employees and that they "need" those names is not
sufficient for a bill of particulars. (Motion ¶ 3.) See
Swiatek, 632 F. Supp. at 987 ("[a] generalized and conclusory
statement of prejudice in support of a motion for a bill of particulars
is, in itself, a basis for denying the motion"). Defendants have not
demonstrated that they will be unable to prepare for trial based on the
indictment and the available discovery and, thus, their motion for a bill
of particulars is denied.
3. Defendants' Joint Motion for Exculpatory Evidence
Defendants next seek an order requiring the government to immediately
produce evidence in its possession that is favorable to Defendants,
Brady v. Maryland, 373 U.S. 83 (1963), and information that
relates to the reliability and credibility of witnesses. Giglio v.
U.S., 405 U.S. 150 (1972). (Motion, at 1.) Defendants identify ten
categories of information they claim constitutes such
Brady/Giglio material. (Motion ¶¶ 3A-3J.) According to
Defendants, immediate production of the requested information will allow
them "a fair opportunity to effectively investigate and prepare for the
trial of a case that the Government has had four years to investigate."
(Motion ¶ 3.)
The government acknowledges its duties under Brady and
Giglio and affirms that it "has complied and will continue to
comply with its duty" under those authorities. (Gov't Response, at 9.)
The government notes that it has disclosed reports of all witness
interviews, all shipping
documents, and other documents recovered from the search warrant
executed at Silesia's offices on February 11, 2000 which, it claims,
satisfies any Brady/Giglio obligations. (Id.) The court
agrees. Defendants have failed to explain how any of the requested
information falls within Brady or Giglio. More
importantly, they do not challenge the government's assertion that it has
fully complied with the requirements of both cases and recognizes its
continuing obligation to do so. Thus, Defendants' motion for exculpatory
evidence is denied. See U.S. v. Alex, 791 F. Supp. 723, 729
(N.D. III. 1992) (government's promise to comply with Brady
rendered motion for exculpatory or impeaching evidence moot); U.S. v.
Dominguez, 131 F.R.D. 556, 559 (N.D. III. 1990) (government's
assurances of compliance with Brady and Giglio in
response to discovery motions were sufficient to defeat those motions).
4. Defendants' Joint Motion to Suppress Documents
Maureen Sullivan worked as Silesia's office manager and Winter's
executive assistant. On January 7, 2000, she called the FAA Great Lakes
Regional Operations Center and informed DOT Special Agent Hunt in the
Chicago Civil Aviation Security Field Office that Winter and Rodas-Misa
planned to ship improperly packaged goods on a Mexicana Airlines flight
out of O'Hare International Airport. (Motion, at 4 and Ex. A.) Sullivan
advised Special Agent Hunt that she would be willing to provide a sworn
statement and documentary evidence of her allegations. On January 11,
2000, Sullivan met with Special Agent Hunt and DOT Special Agent Richard
Busser. She provided them with documents she had taken from Silesia and
agreed to contact them if she learned that Winter or Rodas-Misa planned
to make any additional improper shipments. She also agreed to sign a
statement indicating that she was providing the information voluntarily
out of concern for the safety of passengers in aircraft on which any
improperly labeled products were transported. (Id. at 4-5.)
On January 12, 2000, Sullivan faxed additional Silesia documents to
Special Agent Hunt. On the fax cover sheet, Sullivan asked, "Is this what
you need?" and instructed Special Agent Hunt to leave a message for her
at home indicating what other documents he might want. (Motion, at 5.)
Sullivan also noted on the fax cover sheet that "Most of our products
from Germany DO come in by Lufthansa." (Id.) On
January 21, 2000, Sullivan contacted Special Agent Hunt to inform him
that Winter and Rodas-Misa planned to ship allegedly dangerous goods on a
flight the next day. She also faxed to Special Agent Hunt ten more pages
of Silesia documents showing additional instances of alleged improper
labeling. (Id. at 6.)
The following day on January 22, 2000, Special Agents Hunt and Busser
detained Rodas-Misa at O'Hare, seized and searched his luggage, and
discovered flavor samples that were allegedly labeled improperly. Two
days later on January 24, 2000, Sullivan faxed Special Agent Hunt more
Silesia documents, including some of Winter's personal travel documents.
On or about February 10, 2000, the government obtained a search warrant
for the Silesia offices, relying on: interviews with Sullivan, who
provided information to agents based on personal knowledge and who
inculpated herself in the alleged violations regarding hazardous
materials shipments; an interview of a former Silesia employee who
provided corroboration for Sullivan's statements; and a
consensually-recorded conversation between Sullivan and Winter in which
Winter made repeated admissions regarding the illegality of hazardous
materials shipments. (Gov't Supp., at 2-3 and Ex. 1.)*fn3 The government
executed the search warrant on February 11, 2000 and seized a significant
amount of documents and information.
Defendants now claim that Sullivan was acting as an agent of the
government when she provided them with documents and other information.
Defendants argue that the government violated the Fourth Amendment by
using Sullivan to obtain documents it could not otherwise have
acquired, and that an evid entiary hearing is required to determine
"the full extent of the government's efforts to direct Sullivan's
procurement of documents from Silesia, and to determine the extent to
which those poisoned fruits have tainted the rest of the government's
investigation." (Motion, at 7.)
The Fourth Amendment guarantees citizens the right to be free from
unreasonable searches and seizures by the government. See Lee v. City
of Chicago, 330 F.3d 456, 460 (7th Cir. 2003). Though a search and
seizure by a private party does not implicate the Fourth Amendment, the
amendment does apply to a search or seizure by a person acting as "an
instrument or agent" of the government. U.S. v. Shahid, 117 F.3d 322,
325 (7th Cir. 1997). In determining whether an individual acted as
an "instrument or agent" of the government, the court considers two
"critical" factors: (1) "whether the government knew of and acquiesced in
the intrusive conduct"; and (2) "whether the private party's purpose in
conducting the search was to assist law enforcement agents or to further
[its] own ends." Id. (quoting U.S. v. Koenig,
856 F.2d 843, 847 (7th Cir. 1988)). Other useful factors include whether the
individual acted at the request of the government, and whether the
government offered the individual a reward. Id. See also
U.S. v. Segal, 276 F. Supp.2d 896, 901 (N.D. Ill. 2003).
Defendants point to several factors that they claim demonstrate
Sullivan was acting as an agent of the government. First, on January 12,
2000, she sent Special Agent Hunt documents with a fax cover sheet
asking, "Is this what you need?" and instructing him to leave her a
message at home regarding other documents he might require. In
Defendants' view, this suggests that "there may well have been additional
materials provided to the government by Sullivan that are not provided
for in the record." (Def. Reply, at 2.)*fn4 On that same fax cover
sheet, Sullivan also
appeared to respond to a question Special Agent Hunt had posed
regarding the shipping method of Silesia's German products: "Most of our
products from Germany DO come in by Lufthansa." Defendants
argue that the fax indicates that the government was directing Sullivan's
actions and telling her to find specific information. (Motion, at 5.)
They also claim that "[t]he distinct possibility that additional material
was provided to the government without a search warrant by Sullivan while
acting as a government agent, should at least require an evidentiary
hearing." (Def. Reply, at 2.)
The government first responds that Defendants' motion is moot because
the government does not intend to offer any of the documents obtained
from Sullivan at trial or sentencing. (Gov't Supp., at 3.) The government
does, however, intend to use the originals of those same documents, which
it obtained during the search of Silesia's offices on February 11, 2000.
(Id.) To the extent that Sullivan's documents may have factored
into the scope and direction of the government's investigation and its
decision to obtain the search warrant, the court cannot say that the
issue is simply moot.
The government argues that Sullivan's documents did not factor into its
investigation at all, but that it obtained the search warrant for the
original documents it intends to use at trial without any reference to
records provided by Sullivan. (Gov't Supp., at 9.) "The independent
source doctrine allows admission of evidence that has been discovered by
means wholly independent of any constitutional violation." U.S. v.
Hall, 142 F.3d 988, 993-94 (7th Cir. 1998) (quoting Nix v.
Williams, 467 U.S. 431, 443 (1984)). The government claims that it
had independent probable cause to support the search warrant based on its
interviews with Sullivan during which she provided information based on
her personal knowledge, including facts that incriminated herself; an
interview of a former Silesia employee who provided corroboration for
Sullivan's statements; and a
consensually-recorded conversation between Sullivan and Winter in
which Winter repeatedly made damaging admissions about Silesia's
shipments of hazardous materials. (Gov't Supp., at 9-10.)
Before assessing the government's independence argument, the court must
determine whether there has been a constitutional violation in the first
place. If not, the government does not need an independent basis for the
search warrant. On this issue, the government argues that there was no
Fourth Amendment violation because Sullivan had legitimate access to the
records she copied and provided to the government. (Gov't Supp., at 5.)
The government relies on U.S. v. Ziperstein, 601 F.2d 281 (7th
Cir. 1979), in which a pharmacist employed at one of the defendant's
medical clinics contacted the Federal Bureau of Investigation ("FBI") and
reported that he had evidence that the defendant was, among other things,
issuing prescriptions that misrepresented the quantity and quality of
drugs dispensed. Id. at 284, 288-89. The FBI agent "expressed an
interest in" the documents and two days later, the pharmacist brought the
documents to the FBI "on his own volition without any inducement from the
FBI." Id. at 289. The FBI reviewed the records, directed the
pharmacist to return some that were not relevant, and offered the
remainder as exhibits at trial. Id.
On appeal, the Seventh Circuit agreed that the documents were
admissible at trial because the defendant "did not have a legitimate
expectation of privacy in the documents and . . . no government
participation in the removal of the documents was established."
Id. The court stated that an employer does not have a reasonable
expectation of privacy in what employees observe in their daily
functions, and found that "[c]ertainly pharmaceutical prescriptions come
within the daily observation of a pharmacist and were beyond any
reasonable expectation of privacy which Ziperstein had." Id. The
court also noted that there was no evidence of any impropriety in the
manner in which the pharmacist obtained the documents. Id. at
289-90. Even if the pharmacist did not have authority to obtain the
records and the defendant did have a reasonable expectation of privacy,
moreover, the pharmacist obtained the documents before he contacted the
turned them over without government inducement. Id. at
290. Thus, there was no basis to suppress the records. See also U.S.
v. Billingsley, 440 F.2d 823, 826 (7th Cir. 1971) (corporate officer
properly and independently took possession of company records where he
retrieved most of them before he ever contacted the FBI and there was no
evidence that he acted at the government's direction or for the purposes
of assisting its investigation).
The government claims that like the pharmacist in Ziperstein,
Sullivan had legitimate access to the produced documents as Winter's
executive assistant and Silesia's office manager. Defendants do not
seriously challenge this assertion, arguing instead that at the time
Sullivan provided documents to the government, she was already acting as
the DOT's agent. (Def. Reply, at 4-5.) The government concedes that
Special Agent Hunt asked Sullivan to provide copies of documents
supporting her allegations (Gov't Supp., at 5), and Sullivan did comply
with that request. There is also evidence that Sullivan produced
additional documents in response to a specific government request, asking
"Is this what you need?" and confirming that "Most of our products from
Germany DO come in by Lufthansa." These facts are
distinguishable from Ziperstein, where the pharmacist gained
possession of the documents before he even contacted the government and
turned them over without any government inducement. 601 F.2d at 290.
Cf. U.S. v. Segal, ___ F. Supp.2d ___, 2004 WL 102513 (N.D.
III. Jan. 20, 2004) (employee was not acting as government agent where,
among other things, there was no evidence that the government requested
that he obtain the relevant information). The court agrees that, at a
minimum, an evidentiary hearing is necessary to determine the extent of
the government's involvement in Sullivan's acquisition of Silesia's
The government argues that as Silesia's office manager, Sullivan had
the authority to consent to a government search for the documents she
produced, so the government's use of those records does not violate the
Fourth Amendment in any event. (Gov't Supp., at 8) (citing
Ziperstein, 601 F.2d at 290 n.3) ("one having joint access or
control for most purposes could
consent to a search of the jointly controlled goods or premises")
(internal quotations omitted). Again, however, the pharmacist in
Ziperstein was clearly not acting as a government agent. The
government has not cited any cases where an employee such as Sullivan,
who may have been acting as a government agent, nonetheless had authority
to consent to a search.
Having determined that there may have been a Fourth Amendment violation
in this case, the court turns to the government's argument that it had an
independent basis for the February 10, 2000 search warrant. As noted, the
government stresses that it had probable cause for the warrant without
reference to any of the documentary evidence supplied by Sullivan. (Gov't
Supp., at 9-10.) Defendants respond that an evidentiary hearing is
nonetheless necessary to determine the extent to which Sullivan's
documents "drove the investigation and whether the procurement of the
search warrant was actually `wholly independent' of Sullivan's conduct."
(Def. Reply, at 3) (citing U.S, v. Grosenheider, 200 F.3d 321,
328 (5th Cir. 2000) ("what counts is whether the actual illegal search
had any effect in producing the warrant")). The court agrees.
Sullivan met with Special Agents Hunt and Busser on January 11, 2000
and provided them with various Silesia documents. The next day, she faxed
more documents to Special Agent Hunt along with a note inquiring whether
they were the records he needed, and asking him to contact her if he
needed anything further. She also appeared to answer a question posed by
the agents regarding Silesia's German products. This suggests that the
documents Sullivan provided on January 12 were in response to specific
requests from the agents. Indeed, Special Agent Hunt concedes that he
requested documentation to support Sullivan's allegations. (Gov't Supp.,
at 5.) It is true that the government did not specifically refer to any
of Sullivan's documents in requesting the search warrant on February 10,
2000, but Defendants have raised a question as to whether those documents
played a role in the government's decision to seek the warrant in the
first place. Under such circumstances, an evidentiary hearing is required
to resolve the issue.
In its final challenge to Defendants' motion, the government argues
that Winter does not have standing to assert Silesia's Fourth Amendment
rights. Defendants correctly note that an individual may not generally
assert another's Fourth Amendment rights but must have a personal
expectation of privacy that was violated. (Gov't Supp., at 4) (citing
U.S. v. Jackson, 189 F.3d 502, 507-08 (7th Cir. 1999) ("Fourth
Amendment rights are personal rights which . . . may not be
vicariously asserted"); U.S. v. Barrera-Martinez, 274 F. Supp.2d 950,
955 (N.D. III. 2003) ("[t]o establish an illegal search the
defendant must demonstrate a personal expectation of privacy in the place
that was searched"). The government claims that Winter had no personal
expectation of privacy in the documents Sullivan seized from Silesia and,
thus, cannot assert a Fourth Amendment violation.
In support of this argument, the government cites Williams v.
Kunze, 806 F.2d 594 (5th Cir. 1986), in which law enforcement agents
searched the business office of a tax planning company and seized 50,000
to 60,000 documents. Id. at 596-97. The company's president and
vice-president moved to suppress the documents under the Fourth Amendment
but the district court held that as independent contractors, they did not
have an expectation of privacy in the company offices and had no standing
to challenge the search and seizure. Id. at 597. The Fifth
Circuit affirmed, finding that the two corporate officers "had no
reasonable expectation of privacy in corporate records maintained in a
common file room," and that they therefore had "no standing to challenge
the search of the corporate premises or the seizure of the documents."
Id. at 599-600.
The government argues that Winter similarly had no expectation of
privacy in the documents located at Silesia's offices. (Gov't Supp., at
5.) Defendants respond that at least some of the documents Sullivan
produced were of a private nature, such as Winter's income information,
and driver's license. (Motion, Ex. G.) More importantly, there is no
evidence regarding where Defendants kept the documents obtained by
Sullivan. It may be that most of the documents were kept in commonly
accessible files, but it is also possible that some or all of the records
maintained in Winter's office or in his personal files. The parties
may explore these issues at the evidentiary hearing.
In sum, Defendants have raised a question as to whether Sullivan was
acting as a government agent when she copied documents from Silesia and
their motion for an evidentiary hearing on this issue is granted.
5. Defendant's Joint Motion for Early Return of Subpoenas
Defendants next request an order permitting them to issue subpoenas for
the production of documents prior to trial, pursuant to Federal Rules of
Criminal Procedure 17(c). (Def. Motion, at 1.) The government does not
object to this motion, but asks that it also be allowed to issue trial
subpoenas seeking early return dates. (Gov't Supp., at 10.) Both parties
may seek the early return of subpoenas and are directed to promptly
provide each other with copies of any such subpoenas served on witnesses
and any documents received from those witnesses.
6. Defendants' Joint Motion for Prior Notice of Rule 404(b)
In their final motion, Defendants seek an order requiring the
government to provide notice of its intention to offer evidence of "other
crimes, wrongs or acts," as contemplated by Federal Rule of Evidence
404(b), at least 30 days prior to trial. (Motion, at 1-3.) The government
does not object to this request but reserves its right to provide notice
within the 30-day period if new evidence surfaces within that time.
(Gov't Supp., at 10-11.) Subject to the government's reservation of
right, which Defendants do not contest, Defendants' motion is granted.
For the reasons stated above, Defendant Ortwin Winter's Motion to
Suppress Statements (Docket No. 11 1) is denied. Defendants'
Motion for a Bill of Particulars (Docket Nos. 12-1, 17-1) and Joint
Motion for Exculpatory Evidence (Docket No. 13-1) are denied. Defendants'
Joint Motion to Suppress Documents Obtained in Violation of the Fourth
Amendment and for an Evidentiary
Hearing (Docket Nos. 16-1, 16-2) is granted as to the request for
an evidentiary hearing and otherwise entered and continued for resolution
after the hearing. Defendants' Joint Motions for Early Return of
Subpoenas Pursuant to Rule 17(c) (Docket No. 15-1) and for Prior Notice
of the Government's Intention to Use Rule 404(b) Evidence at Trial
(Docket No. 14-1) are both granted as set forth in this opinion.