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United States v. Olaniyi

United States District Court, N.D. Georgia, Atlanta Division

February 15, 2018

UNITED STATES OF AMERICA,
v.
OLAYINKA OLANIYI

          REPORT AND RECOMMENDATION

          JUSTIN S. ANAND UNITED STATES MAGISTRATE JUDGE

         Defendant, a Nigerian national residing in Kuala Lumpur, Malaysia, was arrested on November 4, 2015 by the Royal Malaysian Police (“RMP”). The arrest was initiated by request from the U.S. Department of Justice's Office of International Affairs. Specifically, the U.S. Government had procured a provisional arrest warrant in Malaysia on the basis of Defendant's suspected involvement in a 2014 illegal computer intrusion into the electronic systems of the Georgia Institute of Technology (“Georgia Tech”), and a related fraud scheme. Defendant has since been extradited on the basis of an indictment charging him with these violations in this District.

         The matter is now before the Court on Defendant's Motion to Suppress [48]. Among other things, Defendant alleges that he was beaten by members of the RMP, and that his subsequent statements to the FBI as well as other evidence seized during his arrest should be suppressed as a result. For the reasons explained below, the undersigned RECOMMENDS that the Motion to Suppress [48] be DENIED.

         I. FACTUAL BACKGROUND

         The Court held an evidentiary hearing on Defendant's motion, on September 29, 2017 and October 16, 2017 [83][87]. A transcript of the hearing was prepared [86][90]. The transcript of the portion of the hearing convened on September 29, 2017 is found on the docket as entry 86, and includes pages 1-63. The transcript of the portion of the hearing convened on October 16, 2017 is found on the docket as entry 90, and includes pages 64-93. The Court will refer to this transcript as a single continuous document, e.g, “Tr. at __.”

         Special Agent Tyson Fowler, a member of the Cybercrime Squad of the Federal Bureau of Investigation's Atlanta Field Office, testified at the September 29th hearing. Tr. at 4. S/A Fowler explained that this case began with a victim complaint from Georgia Tech, which had suffered a substantial computer intrusion affecting payroll systems that involved employee payroll funds fraudulently transferred to unknown depository accounts. Id. at 4-5. The investigation led the agents to identify the Defendant and a Co-Defendant, who were living in Malaysia, as the perpetrators of this scheme. Id. Thus, “through the proper legal channels and through the diplomatic process, we established a relationship with law enforcement officials in Malaysia and coordinated a time for us to fly to Malaysia and coordinated a time for us to fly to Malaysia to try to further the case and to obtain the Defendants for which we had a provisional arrest warrant at that time.” Id. at 5.

         On November 4, 2015, the Defendant was arrested at his residence in Kuala Lumpur by members of the RMP. Id. at 5-6. S/A Fowler and his colleague, FBI S/A Chad Hunt, were present in Kuala Lumpur and coordinated with the RMP, although the American agents did not participate in the arrest or any search of Defendant's residence. Id. at 6-7. Prior to the arrest, the American agents met with and briefed the RMP officers as to the facts obtained in their investigation and the contents of the provisional arrest warrant. Id. The RMP executed that warrant, although they informed S/A Fowler that they also independently arrested Defendant for unrelated Malaysian immigration law violations that they discovered in connection with preparing to execute the U.S. warrant. Id. Specifically, “they noticed that Mr. Olaniyi and his Co-Defendant had overstayed their visa, and so they were able to issue a warrant for an overstay of his visa and arrest on those charges locally.” Id. at 7.

         S/A Fowler explained that the RMP obtained various items of electronic evidence from the residence during the arrest, including computers, a cell phone, and storage media. Id. S/A Fowler's understanding is that these items were seized pursuant to Malaysian law. Id. at 13-14. The RMP allowed the FBI access to the equipment. Id. The FBI agents “obtained computer forensic images which is just a bit-for-bit copy of the hard drives of the different electronic devices.” Id. at 13-14. The FBI brought the forensic images back to the U.S. for purposes of this prosecution but left the originals in the custody of the RMP. Id. at 14. While the FBI made the forensic copy in Malaysia, it did not conduct any actual searches of the electronic information until applying for and receiving a search warrant in this District. The warrant was introduced as Gov't Ex. 2.

         S/A Fowler is unaware whether the RMP questioned the Defendant during the arrest. Id. at 7. The FBI agents conducted their own interview of the Defendant after the arrest. Id. at 7-8. A digital recording of that interview, which S/A Fowler testified was accurate and complete, id. at 9-10, was admitted as Gov't Ex. 1, and a transcript was admitted at Gov't Ex. 3.

         When the agents arrived at the interview room at the RMP's offices, the Defendant was already present, handcuffed behind the back. Id. at 10. The agents released his handcuffs shortly after arriving, before the substantive interview questions. Gov't Ex. 3 at 19-20. The room resembled a typical police department interview room, “like I've been in a hundred times in the States.” Tr. at 9. The Defendant confirmed his “very good” understanding of English. Gov't Ex. 3 at 2-3; Tr. at 10-11. During the course of the interview, S/A Fowler perceived that the Defendant understood the conversation. Id. at 10-11. Before proceeding into questions about the offenses, the agents advised the Defendant of his Miranda rights, and the Defendants acknowledged that he understood those rights and nevertheless agreed to answer questions. Tr. at 10; Gov't Ex. at 16-19.

         S/A Fowler testified that neither he nor anyone else, to his knowledge, made Defendant any promises or threatened him in anyway before or after the interview, which lasted just under two hours. Tr. at 11. The agents spoke in calm tones and offered the Defendant water. Id. at 12.

         The agents specifically informed the Defendant that they were American law enforcement officers from the FBI. Gov't Ex. 3 at 6-7. The Defendant obviously understood that he was being questioned by American law enforcement officers, and believed that he was speaking to them outside the presence of the RMP. The Defendant specifically stated that “I like to be in custody of you guys because I'm not safe here.” Gov't Ex. 3 at 5. The Defendant emphasized that “I know my rights, ” but that he was concerned that “I don't have a right [here] because I've been in some problems in Malaysia.” Id. By contrast with Defendant's expression of concern about whether he would be safe in Malaysian custody, he specifically acknowledged to S/As Fowler and Hunt that “I know you guys are not going to hurt me.” Id. at 13.

         Defendant explained, “I'm scared because I know when you guys leave here, it's another thing.” Gov't Ex. 3 at 15. In response, S/A Fowler explained, prior to any interrogation or rendering of Miranda warnings, that “when we leave, you'll - you're gonna be held at our request so then you are under our protection in some ways and I'll explain that.” Id. Defendant does not allege or suggest that the agents conditioned any such protection on Defendant's agreement to waive his Miranda rights and answer questions. Also, although Defendant had expressed concern about not being safe in Malaysia, and clearly understood that he was safe with the American agents, he did not complain of any pain or mistreatment or exhibit any other signs of trauma, injury or having been beaten or otherwise mistreated by Malaysian authorities. Tr. at 12. S/A Fowler specifically noted that Defendant did not complain or otherwise show signs of any pain or injury while standing, bringing his handcuffs over his head in front of him, and holding his wrists out so that they agents could release the cuffs. Id. The agents proceeded to interview Defendant in what appeared to be a cooperative tone for just under two hours. Id. at 11.

         The Defendant then testified at the suppression hearing. See Tr. at 32. The Defendant explained that on the day of his arrest, he arrived at his residence to find four “men in plainclothes” who apparently turned out to be RMP officers. Id. at 33-34. According to the Defendant, these men made him kneel down, handcuffed him, and proceeded to beat him for 20-25 minutes. Id. at 33-34. The Defendant stated that the officers punched and kicked him, and called him names, during this time. Id. According to the Defendant, the beating was intermingled with interrogation: “they ask a question. When I don't tell them, when I don't tell them what they want, they beat me.” Id. at 34. The officers allegedly stated, “America wants you, ” “you were a terrorist, ” and “you're going to Guantanamo.” Id. The Defendant did not explain the subject matter of this interrogation and, specifically, whether it related to the suspected violations of Malaysian law or the U.S. computer intrusion investigation, or both. In total, Defendant was held at the residence for approximately two hours, and was brought to the RMP police station after that. Tr. at 42.

         The Defendant claimed that the RMP officers demanded his passwords for “either your phone or your computer, ” and in response to leading questions from his attorney agreed that he only gave them the passwords because he was being beaten. Id. at 37. S/A Fowler testified, however, that the FBI did not have or need any passwords in order to make the forensic images of the computers. Id. at 13 (“We were able to image them, to image the computers on scene without a password needed.”) S/A Fowler also stated that Defendant himself unlocked his own phone, at one point during the FBI's interrogation, because he wanted to make a phone call, and needed to get into his contact list to get a particular phone number. Id. As S/A Fowler stated, “other than that, we did not need a password.” Id.

         The Defendant explained that he was interviewed alone by FBI agents, and that he told them about not being safe in Malaysia and about having been previously beaten in Malaysia. Id. at 38. Nevertheless, the Defendant did not tell the agents about having been beaten earlier that day, because he was concerned that this information would get back to the Malaysian authorities. Id.

         After his FBI interview, Defendant went back into Malaysian custody. Id. at 38-39. According to Defendant, Malaysian officers immediately demanded his ATM bank password. Id. at 38-39. Defendant was beaten for approximately 10 more minutes at this point, with “slaps” to his “legs and my knees and my hips.” Tr. at 39.

         At one point, the Defendant came into contact with his Co-Defendant, who was also in Malaysian custody. The Defendant told the Co-Defendant that he (the Defendant) had been beaten, and the Co-Defendant allegedly told Defendant that the RMP also beat him (the Co-Defendant). Tr. at 46, 49. Further, the Co-Defendant also told Defendant that the officers “made him wear woman's clothes and put a wig on his head, and they were snapping pictures of him like it looks like a woman.” Tr. at 46. The RMP at some point, after the FBI interview, took the two Defendants to a place “where there was no CC TV, ” and instructed them to start slapping each other on the face, which they did. Tr. at 46-47.

         Subsequently, the Government called the Co-Defendant, who has entered a guilty plea and agreed to cooperate with the Government in this case. Tr. At 69. The Co-Defendant, who shared an apartment in Kuala Lumpur with the Defendant, explained that he (the Co-Defendant) was kicked in the head at the beginning of the search one time, after having initially physically resisted the search: “When they came in, I tried to guard the door with them when they try to come in. So there's so many of them, they push me in, and I fell on the floor. Then one of them kick me in the head, and that's it, and they handcuffed me.” Id. at 70. He otherwise described no beatings during the search or arrest, and stated that he was not threatened in any way prior to his interview with the FBI. Id. at 70-72. The Co-Defendant denied that the Defendant ever complained about being beaten by the RMP during any of their time together after the arrest (which included sleeping in the same cell), and stated that the Defendant did not appear injured in any way when they encountered each other in the police station. Id. at 72, 75-76. The Co-Defendant, however, did corroborate the Defendant's testimony in one respect: the Co-Defendant also testified to the odd incident in which some jail guards directed the two arrestees to slap each other. Id. at 75. The Co-Defendant explained that they slapped each other, at the guards' direction, six or seven times, although this did not result in any injuries other than some “redness.” Id. at 74. As the Defendant had also explained, this incident occurred after the FBI interviews. Id. 73-74.

         II. DISCUSSION

         A. The Seizure And Search Of Defendant's ...


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