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United States v. Mikerin

United States District Court, D. Maryland

May 7, 2015

UNITED STATES OF AMERICA
v.
VADIM E. MIKERIN, Defendant.

MEMORANDUM OPINION

THEODORE D. CHUANG, District Judge.

In October 2014, Defendant Vadim Mikerin ("Mikerin") was the President of TENAM, a company that serves as the official representative in the United States of JSC Techsnabexport ("TENEX"), a Russian company that, pursuant to an agreement between the United States and the Russian Federation, engaged in the sale and transfer of low-grade uranium originating from Russian nuclear warheads to companies in the United States for use in civilian nuclear reactors. On October 29, 2014, federal agents arrested Mikerin in his office building in Bethesda, Maryland. Mikerin has been charged in an indictment with conspiracy to interfere with interstate commerce by extortion, in violation of 18 U.S.C. ยง 1951(a) (2012), based on allegations that he was engaged in a three-year extortion conspiracy, during which he demanded "kickback" payments from United States companies in order to maintain contracts with TENEX.

Mikerin has filed a Motion to Suppress, ECF No. 46, in which he seeks to suppress all statements that he made to federal agents during an interview on October 29, 2014 immediately preceding his arrest, on the grounds that; (1) he made the statements while subject to a custodial interrogation, without first having received warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966); (2) his statements were made involuntarily, in violation of the Due Process Clause of the Fifth Amendment; and (3) his statements are inadmissible under Federal Rules of Evidence 402 and 403 as irrelevant or because their probative value is substantially outweighed by the risk of unfair prejudice. The Court has reviewed the briefs and held an evidentiary hearing on the Motion on April 17, 2015. For the following reasons, the Motion to Suppress is GRANTED IN PART and DENIED IN PART

FINDINGS OF FACT

The record in this case consists of (1) a video recording and transcript of the interview on October 29, 2014; (2) additional exhibits submitted by the parties; and (3) the testimony of Special Agent David Gadren ("SA Gadren") of the United States Department of Energy, Office of the Inspector General, which the Court finds to be credible. Based on this record, the Court makes the following findings of fact.

On October 29, 2014, SA Gadren and Special Agent Tim Taylor ("SA Taylor") of the Federal Bureau of Investigation ("FBI") conducted an interview of Mikerin about his activities as President of TEN AM, pursuant to their ongoing investigation of a kickback scheme in which Mikerin and others were alleged to have extorted money from United States companies in exchange for contracts relating to the sale of low-grade uranium from Russia. Although the agents had previously secured an arrest warrant for Mikerin, [1] and had obtained a search warrant for the TENAM office, their plan was not necessarily to arrest Mikerin. The agents' goal was to secure Mikerin's voluntary cooperation with the investigation, which would include providing consent to search the TENAM office, responding to questions about the kickback scheme, and identifying other individuals involved in the scheme.

On the morning of the interview, the FBI arranged to have Mikerin receive a call at his office telling him that his car alarm had gone off. As Mikerin was returning from checking on his car in the parking garage. SA Gadren approached Mikerin in the hallway outside the TENAM office, introduced himself, displayed his badge, and told Mikerin that "we had some questions and we were hoping that he would be able to help us by taking a look at some information." Test. SA David Gadren, Hearing on Motion to Suppress, United States v. Mikerin, No. 14-cr-0529-TDC. at 11:54:47 p.m. (D. Md. Apr. 17, 2015). SA Gadren was wearing a business suit and did not show, draw, or brandish his firearm, which was in his holster under his suit jacket, nor did he make any physical contact with Mikerin other than to shake his hand. Mikerin readily agreed to speak with SA Gadren. When Mikerin walked toward the entrance to the TENAM office, SA Gadren directed him to the vacant, private office suite adjacent to TENAM's office, where they met SA Taylor.

The agents led Mikerin into a conference room inside the office suite, where they had previously arranged an array of photographs, charts, and other documents on the walls and tables. These items included photographs of Mikerin and members of his family, documents collected during the investigation, a large Hag of the former Soviet Union, and a "link analysis chart" that had a photograph of Mikerin with lines connecting him to other individuals who were potentially involved in the same activity under investigation.[2] The purpose of this display, in part, was to "intimidate" Mikerin in order to give him the impression that the agents "had full knowledge of his activities, both personal, professional, legitimate and illegitimate" so that "he had to be honest." Id. at 11:56:49; 12:24:28. When the agents directed Mikerin to a conference table, Mikerin chose the seat closest to the door. SA Taylor sat next to him, and SA Gadren sat atone end of the table.

The interview began at approximately 10:20 a.m. and continued, with a one-hour break around noon, until approximately 3:00 p.m. Throughout the duration of the interview, the agents never raised their voices, and their lone was professional and non-threatening. Although both agents had service pistols in their holsters under their suit jackets, neither agent displayed, drew, or brandished his firearm at any point, and neither made any physical contact with Mikerin during the interview. While the discussion was ongoing, Mikerin was able to move around the room to view the photographs and documents posted on the wall. The agents offered Mikerin water and coffee on more than one occasion, which Mikerin accepted, as well as food, which Mikerin did not. Mikerin was never handcuffed or otherwise restrained at any time, and the door to the conference room remained open.

Mikerin received several cell phone calls and text messages during the interview. Although the agents requested that he not answer the first one, and suggested how to respond to inquiries about his present whereabouts, they never prevented him from answering calls or reviewing and sending text messages. At one point in the interview, both agents left the room so that Mikerin could make a phone call to cancel an afternoon meeting so that their interview could continue.

At multiple points during the discussion, the agents informed Mikerin that he did not have to speak with them, that he was not under arrest, and that he was free to leave at any time. Among these statements were:

"Again, you don't have to tell us anything you don't want to tell us at this time. This is a situation... You came with me, voluntarily walked into the office, which 1 appreciate, and gave us the opportunity to share this with you " Oct. 29, 2014 Interview Tr. 7:11-15, Def's Hr'g Ex. A.
"At this very moment you are not under arrest? Right? You're free to go. We told you that when you came in and sat down with us, you understood." Id. at 26:21-23.
"I know you're still thinking about what you want to do, which is fine. But, you know, I can't tell you what ...

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