United States District Court, D. Maryland, Northern Division
April 9, 2015
UNITED STATES OF AMERICA, Plaintiff,
NIKOLAY ZAKHARYAN, et al., Defendants.
WILLIAM D. QUARLES, Jr., District Judge.
Nikolay Zakharyan ("N. Zakharyan") is charged with conspiracy to traffic in contraband cigarettes and trafficking in contraband cigarettes. ECF No. 214. Pending are N. Zakharyan's pretrial motions. A hearing was held on April 2, 2015. ECF No. 243. For the following reasons, N. Zakharyan's motion to adopt pertinent co-defendant motions will be granted; all other motions will be denied.
1. Overview of the Crime
This case arises from a contraband cigarette trafficking scheme allegedly involving N. Zakharyan and others. ECF No. 214. In March 2009, the Baltimore County Police Department ("BCPD") received tips from two "concerned citizens" that businesses owned by three brothers - Elmar Rakhamimov, Timur Yusufov, and Salim Yusufov - had been engaging in criminal activity. ECF Nos. 209 at 2; 209-2 ¶ 35. The concerned citizens reported that Healthway Pharmacy, owned by S. Yusufov, had been receiving and distributing FDA-banned drugs from Russia, and committing healthcare fraud. ECF No. 209 at 2.
In May 2009, a confidential informant ("CI #5631") told BCPD Detective Ryan Cooper that S. Yusufov obtained banned Russian medications from a source in New York and sold them at Healthway Pharmacy. Id. at 3. According to CI #5631, S. Yusufov had been billing Medicaid and Medicare for unfilled prescriptions. Id.
In July 2010, the FBI had a confidential human source ("CHS-1") approach S. Yusufov at Healthway Pharmacy to assess the scope of criminal activity. Id.; ECF No. 209-2 ¶ 40. On July 23, 2010, CHS-1 visited the pharmacy to fill prescriptions. ECF No. 209 at 4. CHS-1 asked S. Yusufov for Corvalol, an unapproved Russian drug, instead of one of his prescribed medications. Id. S. Yusufov gave CHS-1 Corvalol and billed Medicaid for the unfilled prescription. Id. 
On July 24, 2010, CHS-1 visited Europe Restaurant to develop personal ties with S. Yusufov. Id. S. Yusufov asked CHS-1 and his friends what they did for a living. Id. One friend replied that he was a jeweler; another that he was a real estate agent. Id. at 5. S. Yusufov asked CHS-1 if he was a "mobster." Id. CHS-1 replied, "[n]o, I'm just a businessman." Id. S. Yusufov said, I'm a businessman like you, " took CHS-1's phone number, and said they would be best friends. Id.
In August 2010, S. Yusufov gave CHS-1 the name of a physician who "would give him whatever he wants. " Id. Later that month, S. Yusufov asked CHS-1 what kind of business he was in. Id. CHS-1 replied, "Export-Import, " to which S. Yusufov responded, "What do you export? Tell me. We'll make some extra money." Id. CHS-1 said he would "talk to [him] later." Id.
On August 25, 2010, S. Yusufov told CHS-1 that he obtained Russian drugs from New York. Id. Over lunch, CHS-1 told S. Yusufov that he had been involved in trucking and loan sharking, but now has a source for Medicaid cards. Id. S. Yusufov responded that using fake Medicaid cards "was fraud, " but that "an easy fraud scheme" involved buying and selling prescription drugs for a profit. Id. When they next met, S. Yusufov told CHS-1 that using Medicaid cards was not a good idea, in part, "because they couldn't make big money.'" Id. S. Yusufov and CHS-1 discussed meeting later in the week; afterward, S. Yusufov called CHS-1 twice to arrange the meeting. Id.
On October 9, 2010, CHS-1 visited Europe Restaurant with his family while S. Yusufov was there. Id. at 6. When CHS-1 and S. Yusufov went outside to talk, S. Yusufov asked CHS-1 if he dealt in drugs. Id. CHS-1 stated that he dealt in alcohol and cigarettes, not drugs. Id. S. Yusufov told CHS-1 that he would introduce him to a "connected" figure in Baltimore's Russian community. Id. 
On October 15, 2010, S. Yusufov introduced CHS-1 to a liquor storeowner who wanted to buy untaxed alcohol. Id. When they left the store, S. Yusufov complained to CHS-1 about needing money. Id. S. Yusufov also told CHS-1 that his brother, E. Rakhamimov, had buyers for untaxed cigarettes and liquor. Id. S. Yusufov wanted to arrange a meeting with CHS-1 and E. Rakhamimov at Europe Restaurant the next day; however, S. Yusufov was concerned about maintaining his role as middle man. Id. at 6-7.
On October 19, 2010, CHS-1 and S. Yusufov met at Healthway Pharmacy and discussed contraband cigarette transactions. Id. at 7. S. Yusufov asked what brand of cigarettes CHS-1 would provide, and suggested that he had a New York buyer and that E. Rakhamimov had discussed becoming involved in the transactions. Id. Less than a week later, S. Yusufov told CHS-1 that he had another buyer for untaxed alcohol. Id.
On October 30, 2010, CHS-1 met S. Yusufov and E. Rakhamimov at Europe Restaurant to discuss cigarette and alcohol transactions. Id. E. Rakhamimov said he was interested in both, and asked CHS-1 for his phone number. Id. CHS-1 privately told S. Yusufov that he would receive a $200 kickback for each case of cigarettes CHS-1 supplied. Id.
On December 13, 2010, S. Yusufov told CHS-1 that he was ready to receive the cigarettes, and described another scheme involving bottled water. Id. S. Yusufov told CHS-1 "you need to engage in criminal activity in the U.S. in order to stay in business and make money." Id.
On February 18, 2011, CHS-1 visited Healthway Pharmacy to collect a prescription. Id. at 8. S. Yusufov asked him when they were going to do business together, and complained that people he had told about the cigarettes "were beginning to think he [was] a bullshitter.'" Id. Four days later, S. Yusufov again asked CHS-1 about the cigarettes; CHS-1 replied that "he had lost the ability to move the product, but that he was working on it." Id.
On July 14, 2011, CHS-1 told S. Yusufov that he was ready to begin the cigarette operation. Id. S. Yusufov asked for samples and said that his brother and another buyer were interested. Id.
On July 18, 2011, CHS-1 met S. Yusufov at Europe Restaurant. Id. According to S. Yusufov, E. Rakhamimov had lost interest in buying the cigarettes. Id. S. Yusufov asked if the cigarettes could be delivered to New York, and how much money he would make per case. Id. S. Yusufov also offered to introduce CHS-1 to someone who dealt in stolen or counterfeit watches. Id. at 8-9.
On August 17, 2011, S. Yusufov arranged a meeting between CHS-1 and a cigarette buyer. Id. at 9. The prospective buyer took samples of the cigarettes but never initiated any orders. Id.
On October 24, 2011, CHS-1 gave samples to S. Yusufov for another interested buyer. Id. On October 28, 2011, S. Yusufov told CHS-1 that the new buyer was very serious but wanted more samples. Id. S. Yusufov said that he wanted to buy 200 cases for the new buyer, which would be delivered to New York. Id. CHS-1 responded that 200 cases would be too many for the first deal, but S. Yusufov insisted. Id.
On November 10, 2011, CHS-1 gave S. Yusufov additional cigarette samples and said that he would supply 20 cases for the first deal. Id.
On November 19, 2011, CHS-1 met the "new" buyer - E. Rakhamimov - at Europe Restaurant. Id.  E. Rakhamimov told CHS-1 that he wanted 20 master cases of Parliament 100 brand cigarettes, which would sell for $45 per carton in New York. Id. at 9-10; ECF No. 209-2 ¶ 47.
From December 7, 2011 to November 7, 2013, 18 cigarette transactions occurred, ranging from 20 to 500 cases per transaction. ECF No. 209 at 10-11. On December 7, 2011, CHS-1 delivered the first batch of 20 cases to Chesapeake Monuments, an Owings Mills, Maryland business owned by E. and I. Rakhamimov. Id. at 10. Thereafter, CHS-1 delivered the cigarettes to E. Rakhamimov's home. Id. at 11.
At some time, E. Rakhamimov expressed interest in importing or exporting shipping containers of contraband cigarettes with the assistance of corrupt Newark, New Jersey customs officials, and in supplying CHS-1 and undercover agents with black market drugs. ECF No. 209-2 ¶ 53.
Before each delivery, E. and I. Rakhamimov and A. Zakharyan discussed the transaction over the telephone and in person, and met at E. Rakhamimov's home to compile and count the money for the cigarettes. ECF No. 209 at 11. After the deliveries, they met at E. Rakhamimov's house or Europe Restaurant to discuss transporting the cigarettes to New York. Id.
From December 2011 to June 2012, R. Ykiew - S. Novakhov's nephew - drove the cigarettes to New York, where they were sold to S. Novakhov. Id. at 12-13.
Beginning in May 2012, A. Zakharyan had N. Zakharyan attend and assist with the deliveries. Id. at 12. In addition to participating in the purchases,  N. Zakharyan moved the cigarettes from the delivery truck into E. Rakhamimov's garage, ensured the correct number and type of cigarettes had been delivered, and wrapped the cases in black trash bags to cover the markings. Id. at 12. N. Zakharyan also loaded the cigarettes for transport to New York. Id.
In May or June 2012, UCE-3281 asked E. Rakhamimov to provide Oxycodone as partial payment for the cigarettes. Id. at 13. On June 12, 2012, E. Rakhamimov told CHS-1 that he had a source of legitimate and fake Ukranian pharmaceuticals. Id. In September 2012, E. Rakhamimov gave CHS-1 fake Viagra drugs to present to UCE-3281 for approval, and said that he was looking into obtaining Oxycodone. Id. E. Rakhamimov worked with A. Zakharyan to further the drug scheme. Id. at 14. From September 2012 to October 2013, about 3, 000 Oxycontin pills, 500 Oxycodone pills, and 10, 000 fake Cialis and Viagra pills were provided as partial payment for the contraband cigarettes. ECF No. 209-5 at 25.
On April 16, 2013, Judge Catherine C. Blake, U.S. District Judge for the District of Maryland, authorized wiretaps on two cellular telephone numbers used by E. Rakhamimov, XXX-XXX-XXXX ("Target Telephone #1, " or "TT1") and XXX-XXX-XXXX ("Target Telephone #2, " or "TT2"). See ECF Nos. 209-1 (Amended Application), 209-2 (Amended Affidavit in Support of the Application), 209-3 (Amended Order). From April 17, 2013 to May 17, 2013, the government intercepted wire transmissions over TT1 and TT2. ECF No. 209 at 38. On May 31, 2013, and July 2, 2013 Judge Blake authorized 30 day extensions on the TT1 wiretap. Id.  On July 23, 2013, Judge Blake authorized a wiretap for cellular telephone number XXX-XXX-XXXX ("Target Telephone #3, " or "TT3"), used by Yelizarov. Id. at 39. Interception of TT3 ended on August 22, 2013. Id.
3. Searches, Seizures, and Statements
On December 11, 2013 officers executed a search warrant at N. Zakharyan's home. ECF No. 156. During the search, officers seized nine master cases of Davidoff cigarettes lacking tax stamps and $1, 500 in cash. ECF No. 209 at 17. N. Zakharyan arrived home during the search,  was arrested, and transported to the FBI Baltimore field office in Woodlawn, Maryland. Id. 
At the field office, N. Zakharyan was placed in a room where he was interviewed by Detective J. Connors and Special Agent Stacey Bradley; he was not handcuffed or shackled, and neither officer had service weapons on them during the interview. Rough Hr'g Tr. at 28:9-10; ECF No. 209-8 at 1. Detective Connors read N. Zakharyan his Miranda rights and presented him with a Miranda waiver form. Rough Hr'g Tr. at 29:4-16. N. Zakharyan stated that he understood his rights but did not sign the waiver form. Id. at 29:16-24. However, N. Zakharyan continued to answer questions. Id. at 30:3-7. He appeared calm and relaxed. Id. at 30:19-20. After reviewing N. Zakharyan's telephone numbers, email addresses, and employment, Detective Connors mentioned the hookah pipe and large quantity of cigarettes found at his home. Id. at 31:9-22. Detective Connors asked N. Zakharyan why he had that many cigarettes, to which N. Zakharyan responded, "I smoke a lot." Id. at 31:21-24. N. Zakharyan's "demeanor quickly changed from relaxed to somewhat tense." ECF No. 209-8 at 3. When Detective Connors asked him where he got the cases of cigarettes, N. Zakharyan asked for an attorney, and the interview ended. Id.; Rough Hr'g Tr. at 31:25-32:11. N. Zakharyan was not threatened or promised anything. Id. at 38:25-39:9.
B. Procedural History
On December 3, 2013, N. Zakharyan, and others, were indicted on one count of conspiracy to traffic in contraband cigarettes in violation of 18 U.S.C. § 371 and multiple counts of trafficking in contraband cigarettes in violation of 18 U.S.C. § 2342(a). ECF No. 1; see also supra note 7. On January 17, 2014, N. Zakharyan was arraigned and pled not guilty. ECF No. 94.
On December 19, 2014, N. Zakharyan moved to suppress statements and tangible and derivative evidence from the search of his home pursuant to a search warrant, ECF Nos. 155, 156. At the April 2, 2015 motions hearing, N. Zakharyan adopted A. Zakharyan's motion to dismiss the indictment because of outrageous government conduct. See Rough Hr'g Tr. at 25:17-21; ECF Nos. 163 (motion), 165 (memorandum in support of motion).
On March 2, 2015, the government opposed N. Zakharyan's motions. See ECF No. 209 (consolidated motions response).
On March 10, 2015, N. Zakharyan was charged in a superseding indictment that removed charges against co-defendants and increased the number of counts of trafficking in contraband cigarettes. ECF No. 214 at 12-13.
On April 2, 2015, N. Zakharyan was arraigned on the superseding indictment and pled not guilty to all counts. ECF No. 242. That day, a motions hearing was also held. ECF No. 243. Detective Connors testified about N. Zakharyan's custodial statement. Rough Hr'g Tr. at 26:10-39:11. The government submitted two exhibits: a blank "Miranda Rights Waiver Form 14, " Gov. Hr'g Ex. 1, and a June 25, 2008 press release by the New York State Department of Taxation and Finance about an unrelated contraband cigarette trafficking operation, Gov. Hr'g Ex. 2. Later, the government supplemented its exhibits to include Attachment G-2 to the search warrant affidavit, which lists the items to be seized from N. Zakharyan's home. See ECF No. 249.
A. Motion to Dismiss the Indictment
N. Zakharyan argues that the government engaged in outrageous conduct when it induced medical billing fraud suspects to traffic in contraband cigarettes; the government thus allowed large quantities of low-cost cigarettes to enter the market without regard for public health. ECF Nos. 163, 165 at 10-23. The government argues that the contraband cigarette operation was reasonable and necessary to assess the scope of criminal conduct committed by the Yusufov family and their associates, and public health considerations are not appropriately considered "under the rubric of individual due process rights." ECF No. 209 at 27-31.
Although alluded to in Rochin v. California, 342 U.S. 165, 172 (1952), dismissal on the basis of outrageous government conduct originated in United States v. Russell, 411 U.S. 423 (1973). In Russell, the criminal defendant argued outrageous government conduct when an undercover agent supplied narcotics manufacturers with a legal, but difficult to obtain, chemical that was essential to manufacturing methamphetamine. Id. at 431. After rejecting the defendant's claim of entrapment, the Supreme Court also denied a Due Process claim, explaining:
[w]hile we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, ... the instant case is distinctly not of that breed.
Id. at 421-32 (internal citation omitted). Application of this constitutional theory was limited in Hampton v. United States, 425 U.S. 484 (1976). In Hampton, a government informant allegedly sold heroin to the defendant, who later sold it to government agents. Although acknowledging that "the Government... played a more significant role in enabling petitioner to sell contraband in this case than it did in Russell, " id. at 489, the Court rejected the defendant's claim that his due process rights had been violated, id. at 490, stating:
[i]f the result of the governmental activity is to implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission, the defendant is protected by the defense of entrapment. If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law.
Id. at 490 (plurality opinion) (internal citation omitted). Citing Hampton, the Fourth Circuit has since held that the "outrageous conduct" doctrine "survives in theory, but is highly circumscribed." United States v. Hasan, 718 F.3d 338, 343 (4th Cir. 2013). To offend due process, government conduct must violate a protected right of the defendant, and "must be shocking, ' or offensive to traditional notions of fundamental fairness.'" Id. at 342-43 ( quoting United States v. Osborne, 935 F.2d 32, 37 (4th Cir. 1991)).
The government likens the contraband cigarette operation here to the undercover operation approved in Hasan. ECF No. 27 at 62. In Hasan, as part of a long-term investigation into an alleged contraband cigarette trafficking ring, undercover agents sold almost 40, 000 cartons of untaxed cigarettes to members of the conspiracy, including the defendant. 718 F.3d at 340. The cigarettes were bought from undercover agents in Virginia and transported to New York for sale. Id. The Fourth Circuit affirmed the defendant's conviction on grounds that Congress had authorized "commercial endeavors in the context of undercover investigations, " and the "mere" sale of "untaxed cigarettes [did] not render [the] investigation outrageous." Id. at 344. N. Zakharyan distinguishes Hasan on the grounds that, here, the government "created the [contraband cigarette trafficking] ring out of whole cloth, " and Hasan did not address public health concerns arising from the distribution of low-cost contraband cigarettes. ECF No. 165 at 10; see also Rough Hr'g Tr. at 41:1-17.
Hasan did not explicitly rest on the prior existence of the contraband cigarette trafficking ring; instead, the Court focused on whether the supply of contraband was outrageous. Borrowing from its previous opinions, the Hasan court observed that:
[o]utrageous is not a label properly applied to conduct because it is a sting or reverse sting operation involving contraband, '... Justice Powell's concurrence in Hampton recognized that the practicalities of law enforcement sometimes compel officers to provide supplies to drug manufacturing operations, or even to supply contraband itself, ' and suggested that due process does not necessarily prohibit use of these and similar investigative techniques.'
Hasan, 718 F.3d at 344 ( quoting United States v. Goodwin, 854 F.2d 33, 37 (4th Cir. 1988); United States v. Milam, 817 F.2d 1113, 1116 (4th Cir. 1987)) (internal citations omitted). Thus, it is far from certain that Hasan would have been resolved differently had undercover agents supplied contraband cigarettes to persons who had not previously trafficked in them.
Here, there was a reasonable basis for the FBI's investigation. In 2006 the BCPD and FBI began investigating Europe Restaurant for receiving stolen goods, distributing cocaine, and firearms possession. In 2009, the BCPD received information from two concerned citizens and CI #5631 that S. Yusufov - through Healthway Pharmacy - had sold illicit Russian drugs obtained from New York-based suppliers and committed healthcare fraud.
Further, after becoming acquainted with CHS-1, S. Yusufov expressed willingness to engage in criminal activity, telling CHS-1 they could make "extra money" from CHS-1's purported export activities or from engaging in "an easy fraud scheme" involving prescription drugs. When CHS-1 mentioned that he dealt in alcohol and cigarettes, S. Yusufov immediately offered to introduce him to a "connected" figure in Baltimore's Russian community. A few days later, S. Yusufov told CHS-1 that E. Rakhamimov had buyers for contraband cigarettes and alcohol and wanted to arrange a meeting between them the next day. Thereafter, S. Yusufov introduced CHS-1 to another prospective buyer. Thus, the undercover operation was not "an indiscriminate government fishing expedition" targeting innocent persons or those who lacked connections to a criminal network. A government informant presented a criminal opportunity to S. Yusufov (and his associates), which he not only accepted, but insisted on pursuing when faced with a delay. This circumstance is neither "shocking" nor "offensive to traditional notions of fundamental fairness." Osborne, 935 F.2d at 37 (internal quotation marks omitted).
The Court is not persuaded by N. Zakharyan's argument that public health considerations render the government's conduct outrageous. Although, as N. Zakharyan contends, the effect of an undercover operation on the public is a reasonable consideration,  the test this Court must apply is whether the government conduct in question was "shocking" or "offensive to traditional notions of fundamental fairness." N. Zakharyan attempts to shock the Court's conscience by asserting that the contraband cigarettes supplied by the government caused almost 400 premature deaths. ECF No. 232 at 14. The Court is mindful of the risks of cigarette smoking; however, the highly attenuated connection between the undercover operation and the purportedly smoking-related deaths - and the lack of evidence thereof - do not convince the Court that the government conduct was sufficiently shocking as to bar prosecution. As noted above, courts have a "high shock threshold, " and have upheld undercover operations involving "substantial quantities of government supplied contraband" when, as here, the investigation targeted distributors.
Also, neither the volume of contraband cigarettes supplied by the government nor the duration of the operation is outrageous. The Fourth Circuit has previously declined to hold government conduct outrageous when "it has enough evidence to seek an indictment for some crime, [but] opts instead to wait in favor of continuing its investigation, " and opined that "[d]ue process requires no such ruminations" about the government's motive for continuing the investigation. United States v. Jones, 18 F.3d 1145, 1155 (4th Cir. 1994) ("[W]e find it not outrageous for the government to continue to purchase narcotics from willing sellers even after a level of narcotics relevant for sentencing purposes has been sold."). N. Zakharyan's oral motion to dismiss the indictment for outrageous government conduct will be denied.
B. Motions to Suppress
1. Search and Seizure
N. Zakharyan challenges the search of 5001 Hollington Drive. ECF No. 156. He argues that the agents' reliance on the search warrant was unreasonable, and that they exceeded the scope of the warrant when they seized items neither in plain view nor which would have inevitably been discovered. Id. at 1-2. The government argues that the search warrants were supported by probable cause, and that - even if probable cause was lacking - the agents relied on the warrants in good faith. ECF No. 209 at 52-57.
The Fourth Amendment prohibits unreasonable searches and seizures, and no warrant may issue without probable cause. U.S. Const. amend. IV. There is probable cause for a search when there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238. Probable cause does "not require officials to possess an airtight case before taking action, " and officers "must be given leeway to draw reasonable conclusions" from information. Taylor v. Farmer, 13 F.3d 117, 121-22 (4th Cir. 1993).
In reviewing the probable cause determination, "[the Court] accord[s] great deference to the issuing judge's assessment of the facts presented." United States v. Allen, 631 F.3d 164, 173 (4th Cir. 2011). "[T]he task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the [judge's] decision to issue the warrant." Massachusetts v. Upton, 466 U.S. 727, 728 (1984). In addition to the probable cause requirement, a valid warrant must be issued by a "neutral and detached magistrate" and must state with particularity the place to be searched and the items or person to be seized. See U.S. Const. amend IV; United States v. U.S. Dist. of Mich., 407 U.S. 297, 316 (1972).
Under the "good faith" exception, when officers rely on a facially valid warrant and the supporting affidavit is later found to lack probable cause, the evidence seized is not subject to the exclusionary rule and is admissible in the government's case in chief. United States v. Leon, 468 U.S. 897, 913 (1984). The evidence will be suppressed only if (1) the issuing judge was misled by information that the affiant knew or should have known was false, (2) the judge "wholly abandoned" his or her neutral role, (3) the affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, " or (4) the warrant is so facially deficient that no reasonable officer could presume it to be valid. Id. at 923.
The sealed affidavit in support of the search warrants provides a detailed description of the operation before stating the affiant's basis for believing that contraband or evidence of a crime would be found at each location to be searched. See ECF No. 209-5 at 7-25, 65-69. The affidavit states that N. Zakharyan had been present during deliveries of the contraband cigarettes and had been observed concealing and loading the cigarettes for transportation to New York. Id. at 65. Telephone calls between E. Rakhamimov, I. Rakhamimov, and A. Zakharyan suggested that N. Zakharyan had prepared lists of recently delivered cigarettes, and stored some of the cigarettes at his home. N. Zakharyan operates a business, "Moon Rock LLC, " which, according to its articles of incorporation, "serve[s] and sell[s] tobacco products." Id. at 65. According to Maryland real property records, N. Zakharyan co-owns 5001 Hollington Drive, Unit 105. Id. at 69. Throughout the investigation, N. Zakharyan had been observed coming and going from an attached garage with direct access to Unit 105. Id. 
The physical surveillance and intercepted communications in the affidavit thus establish a nexus between N. Zakharyan and the contraband cigarette operation, and between the operation and his home. There is "substantial evidence in the record" supporting the judge's decision to issue a search warrant for 5001 Hollington Drive. See Upton, 466 U.S. at 728; Lalor, 996 F.2d at 1583. For that reason, the warrant is not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" under Leon, 468 U.S. at 923.
Further, a warrant is facially valid, if "[it] was based on probable cause and supported by a sworn affidavit, and it described particularly the place of the search" and the items to be seized. See Groh v. Ramirez, 540 U.S. 551, 557 (2004). The warrant in this case meets those requirements. See ECF Nos. 209-5; 249. There is no evidence that the issuing judge "abandoned" his or her neutral role in signing the warrant, or that the judge was "misled" by false information. Thus, N. Zakharyan is not entitled to suppression under any of the Leon exceptions. His motion to suppress evidence from the search of his home will be denied.
N. Zakharyan argues that any statements he made to law enforcement were obtained in violation of the privilege against self-incrimination and his Miranda rights. ECF No. 155.
Miranda v. Arizona, 384 U.S. 436 (1966), requires that the police inform the suspect that he has the right to remain silent and the right to the presence of an attorney before any "custodial interrogation." See Miranda, 384 U.S. at 479. When a suspect in custody has invoked his right to counsel, he "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
A waiver of Miranda rights must be voluntary, knowing and intelligent - though it need not be in writing. Moran v. Burbine, 475 U.S. 412, 421 (1986); Berghuis v. Thompkins, 560 U.S. 370, 385 (2010) (finding waiver when the defendant declined to sign the waiver form but understood the rights he gave up by speaking to law enforcement). A waiver is voluntary, knowing, and intelligent if it was "the product of a free and deliberate choice rather than intimidation, coercion, or deception, " and if it was "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id.; see also United States v. Cristobal, 293 F.3d 134, 139-40 (4th Cir. 2002). The Court engages "in the same inquiry when analyzing the voluntariness of a Miranda waiver as when analyzing the voluntariness of statements under the Due Process Clause, " Cristobal, 293 F.3d at 140, that is, the Court asks whether "the defendant's will has been overborne or his capacity for self-determination critically impaired because of coercive police conduct." Id.
The unrebutted evidence shows that N. Zakharyan understood his Miranda rights and waived them by submitting to questioning, was not coerced by Detective Connors or Agent Bradley, and the interview ended when he invoked his right to counsel. Thus, his motion to suppress statements will be denied.
For the reasons stated above, N. Zakharyan's motion to adopt pertinent co-defendant motions will be granted; all other motions will be denied.