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United States v. Verma

United States District Court, N.D. Illinois, Eastern Division

March 2, 2017

United States of America, Plaintiff,
v.
Urvashi Verma, also known as Sonia Verma, also known as Urvashi Bhushan, Defendant.

          MEMORANDUM OPINION AND ORDER

          Elaine E. Bucklo United States District Judge

         Before me is defendant Sonia Verma's motion to suppress directed to the contents of a package that United Parcel Service personnel opened and inspected after being alerted that federal agents were interested in it. For the reasons that follow, I deny the motion.

         I.

         Ms. Verma is one of several defendants alleged to have participated in a scheme to export and import “defense articles” to and from China without first obtaining the necessary licenses or approvals from the Directorate of Defense Trade Controls. See generally 01/13/2016 Superseding Indictment. Relevant here is the government's charge that on or about January 19, 2010, Ms. Verma attempted to send a defense article via UPS to a manufacturer in China. Prior to shipment, however, the package containing the defense article was opened by UPS security representative Robert Gilbert, who then turned it over to Special Agent Calvin Sigur of the Department of Homeland Security and Special Agent Patrick McCurry of the State Department's Office of Inspector General. At the time, these agents were investigating Ms. Verma's co-defendant, Vibgyor Optical Systems, Inc., and several members of the Verma family, including co-defendant Bharat (Victor) Verma.

         In her motion, Ms. Verma argues that Mr. Gilbert was acting as an agent of the government at the time he opened the package in question, and that his warrantless search of its contents violated the Fourth Amendment. On February 16, 2017, I held an evidentiary hearing, at which Special Agents Sigur and McCurry testified, as did Mr. Gilbert and an individual named David Prang, who at the time was employed at the UPS store in Arlington Heights, Illinois, where Ms. Verma dropped off the package for shipment.

         Agent McCurry testified that in the late morning on January 20, 2010, he visited the Arlington Heights store at Agent Sigur's request to “check on a package” at the store. Tr. of 2/16/2017 Hr'g. at 10:10-13. Agent McCurry stated that his purpose was “[t]o see who the package was from and who it was addressed to. And to the extent that I could tell form the packaging, what it was.” Id. at 11:6-8. He denied having any intention of opening the package and stated that he did not, in fact, open it. Id. at 11:9-11, 13:13-14.

         At the UPS store in Arlington Heights, Agent McCurry spoke with the store's owner, Ron Levin, and its employee, David Prang. Agent McCurry viewed the package, noting the addressee and return address. After concluding that he “had no reason to seize it or to open it, ” Agent McCurry asked Messrs. Levin and Prang “to just send the package as they would normally.” Id. at 14:20-23. Agent McCurry stated that he did he instruct or ask anyone at the UPS store to open the package. Id. at 14:3-18.

         David Prang testified that in late 2009 or early 2010, a federal agent visited the Arlington Heights UPS store and left his business card with Messrs. Levin and Prang, asking them to call him the next time they got any packages from Vibgyor. Hr'g. Tr. at 101:15-102:8. Prang testified that he and Mr. Levin followed these instructions after Ms. Verma brought a package to the store on January 20, 2010, with Mr. Levin calling the agent who had left his card. Mr. Prang recalls that two agents then came out to the store.[1] Id. at 103:14-19. The agents did not ask Mr. Prang to open the package, nor did he hear the agents ask Mr. Levin to open it. Id. at 106:18-20. Indeed, no one contends that the package was opened while at the UPS store in Arlington Heights.

         Prior to Agent McCurry's visit to the Arlington Heights store, on January 14, 2010, Agent Sigur contacted UPS's security specialist at its Palatine, Illinois facility, Mr. Gilbert, “regarding a person or persons illegally exporting sensitive military technology to China.” UPS Investigation Report, Gov't. Exh. 4, at 2. Agent Sigur provided Mr. Gilbert with a residential address, nearby UPS stores, and several names associated with defendants, and “asked if Gilbert could find any pattern of pkgs going to or coming from China.” Id. At the hearing, Mr. Gilbert testified about the case file he generated as a result of Agent Sigur's phone call, which he reviewed the week before the hearing, and which refreshed his recollection about the events. Hr'g. Tr. at 56:1-14. Tr. Specifically, he identified his own handwritten notes that read, “all Int[ernational] for these accts needs to be checked by security, ” followed by two account numbers. Id. at 9; Tr. of 2/16/2017 Hr'g., 56:23-25. Mr. Gilbert stated that he took the same information “down to the international where we process international packages. And I let the supervisor know that any shipments for these accounts going to China I needed to take a look at.” Hr'g. Tr. at 57:4-9. By “take a look at, ” Mr. Gilbert meant “checking the customs paperwork, checking the manifest and checking the contents to make sure that they match the customs paperwork.” Id. at 57:11-13. Mr. Gilbert testified that the reason he intended to take these steps was “[b]ecause we do not move prohibited or illegal items through our system; or we try not to, anyway.” Id. at 58:1-2.

         In this connection, Mr. Gilbert explained that in his role as a UPS security representative-a position he has held for about fourteen years-he opens packages being shipped through UPS “almost daily.” Hr'g. Tr. at 60:10-15. The reasons range from damage issues to suspicions that the packages may contain stolen or illegal items. See id. at 60:17-61:21. Mr. Gilbert explained that in some cases, UPS receives “a tip that there may be a package containing narcotics coming through, ” in which case UPS employees “pull the package aside” and call law enforcement, whose agents normally respond by bringing a drug-detection dog to sniff the package. Id. at 62:12-16. The reason UPS contacts law enforcement in such cases, Mr. Gilbert reiterated, is that “we do not transport prohibited or illegal items.” Id. at 63:6.

         With respect to the package at issue, Mr. Gilbert testified that on January 20, 2010, he received a second call from Agent Sigur informing him that one of the individuals under investigation for illegal export activity had dropped off a package for shipment to China at a UPS store in Arlington Heights. Id. at 58:24-59:7; Gov't. Exh. 4 at 2. Mr. Gilbert testified that he then “went down and told the international area supervisor that if there were any internationals from that one specific UPS store now that we had narrowed it down that I wanted to take a look at them.” Id. at 60:4-7. He then “received a call that there was one package going to China that was located, ” and went to collect the package Id. at 60:8-9, 63:20-23.

         Mr. Gilbert returned with the package to the security office, where he opened the package and checked the contents. Id. at 66:23-67:5. Mr. Gilbert testified that he did not inform Agents Sigur or McCurry that he was going to open the package, nor was anyone from the government present when he did so. No one from the government asked Mr. Gilbert to open the package Id. at 57:17-18, 59:19-24. Mr. Gilbert further denied that Agent Sigur offered him any reward for opening the package or threatened him with any negative consequences if he did not open the package. Id. at 59:22-60:2. The reason he opened it, Mr. Gilbert testified, was “[t]o make sure that there [was] nothing prohibited or illegal in it.” Id. at 67:16-18.

         Upon opening the package, Mr. Gilbert found two parts he described in his investigation report as “metal washer-type parts.” Gov't. Exh. 4 at 2. At the hearing, however, Mr. Gilbert testified that the items did not appear to be what he “envisioned aluminum washers to be, ” and that he would not describe the items he found in the package as washers. Hr'g. Tr. at 70:22-25; 72:6. He went on to explain that after opening the packages, he contacted Agent Sigur because “[a]t that point I felt that there may have been some fraud going on here, so I contacted...to let him know that I had what could be what he was looking for. But my basic concern was that it did not seem to jive (sic) with the export paperwork.” Id. at 72:17. That paperwork identified the goods as “[t]wo pieces of aluminum washer.” Id. at 70:1. Agents Sigur and McCurry then went out to UPS's Palatine facility, where Mr. Gilbert showed them the package and its contents. Id. at 74:8-16. The agents then seized the package.

         The record reflects that in or around September of 2015, Special Agent Amber Wigant, who succeeded Agent Sigur as case agent, wrote an investigation report “to clarify details of the seizure from UPS in January 2010.” Exh. 9 to Pl.'s Mot., at 1. According to that report, “SA Sigur stated that at no time did he instruct UPS to open or otherwise inspect ...


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