United States District Court, N.D. Georgia, Atlanta Division
REPORT AND RECOMMENDATION
CATHERINE M. SALINAS UNITED STATES MAGISTRATE JUDGE.
21, 2016, a grand jury returned a twelve-count indictment
charging Beny Mesika and John Wesley Houser, IV with being
part of a conspiracy to “manufacture, distribute and
dispense products labeled and marketed as ‘dietary
supplements' designed to increase muscle mass and
strength, which in fact contained anabolic steroids.”
[Doc. 1, ¶¶ 1-2]. In addition to conspiracy, the
indictment also charged Mesika and Houser with two counts of
distribution of controlled substances, two counts of
introducing misbranded drugs into interstate commerce, and
seven counts of money laundering. [Id. ¶¶
April 19, 2017, Houser pleaded guilty to being part of a
conspiracy to distribute anabolic steroids via a one-count
information in Case No. 1:17-cr-134-MHC.
December 19, 2017, a grand jury returned a twenty-five-count
superseding indictment in this case. [Doc. 85
(“Superseding Indictment”)]. Houser was removed
as a defendant, and Elizabeth Kuecher was added as a
defendant. [Id.]. The Superseding Indictment charges
Mesika and Kuecher with being part of three separate
conspiracies-one involving the manufacture, distribution, and
possession of anabolic steroids (Count One), the second
involving the unlawful importation of synthetic steroid
compounds from China and Hong Kong (Count Eight), and the
third involving the operation of facilities that should have
been, but were not, registered with the United States Food
and Drug Administration (“FDA”) (Count Twelve).
Both Mesika and Kuecher are also charged with three counts of
smuggling (Counts Nine through Eleven) and four counts of
failure to register a food facility (Counts Thirteen through
Sixteen). Additionally, Mesika is charged with three counts
of distribution of controlled substances (Counts Two through
Four), three counts of introducing misbranded drugs into
interstate commerce (Counts Five through Seven), and nine
counts of money laundering (Counts Seventeen through
matter is before the Court on two motions filed by Mesika:
(1) a Motion and Amended Motion to Suppress Statements
(“Statements Motion”) [Docs. 47, 61]; and (2) a
Motion to Suppress Evidence Relating to Search Warrants
(“Warrants Motion”) [Doc. 46]. After Kuecher was
added as a defendant, she adopted the Warrants Motion. [Doc.
Mesika's original Statements Motion [Doc. 47], he argues
that on October 4, 2013, he was illegally questioned by
special agents from the Food and Drug Administration's
Office of Criminal Investigations (“FDA-OCI”). He
contends that the questioning occurred while he was in
custody, and therefore, the agents should have given him his
Miranda warnings before questioning him.
[Id. at 2]. Acknowledging that he was not in
“formal custody” at the time of the interview,
Mesika contends that because he was under criminal
investigation at the time, he was being served with a
criminal grand jury subpoena, and he was questioned by the
lead agents in the investigation, “[Mesika] believed he
could not simply walk out the door at any time.”
[Id. at 5-6]. Mesika also appears to argue that if
he had answered some of the agents' questions, he would
have incriminated himself, and therefore, he was entitled to
Miranda warnings. [Id. at 7]. He complains
further that the agents engaged in improper
“psychological conditioning” techniques designed
to elicit incriminating statements. [Id. at 8]. In
his motion, Mesika asserts that at some point he requested an
attorney, but that the agents continued to question him.
[Id. at 8-10]. Mesika also argues that his October
4, 2013 statement was not voluntary. [Id. at 10-11].
months later, Mesika supplemented his Statements Motion,
asserting that statements he gave during an interview on May
16, 2013 should also be suppressed. [Doc. 61 at 1-2]. Again,
Mesika argues that he was in custody and was not given
Miranda warnings. [Id.]. In support of his
contention that he was in custody, Mesika states,
“during the May 16, 2013 interview, the agents
confronted [him] and expressly told him that his conduct
violated [federal law] and that the products are classified
as misbranded.” [Id. at 4]. He also argues
that his May 16, 2013 statement was not voluntary.
April 28, 2017, I held an evidentiary hearing on the
Statements Motion. [Doc. 67, Transcript (“Tr.”)
at 53-54]. At that hearing, the Government presented the
testimony of Scott Tolman and Brian Kriplean, both special
agents with the FDA-OCI.
The May 16, 2013 Statement
Tolman testified that on May 16, 2013, he conducted a
non-custodial interview of Beny Mesika at Mesika's
business office at 4301 Pleasantdale Road, in Atlanta,
Georgia as part of an investigation concerning unlisted
ingredients in a nutritional supplement that had been shipped
from Mesika's address with his name on it. [Tr. at 52-53,
69]. According to Special Agent Tolman, Mesika and his
company were targets of the investigation. [Id. at
53]. Special Agent Tolman testified that he arranged the
interview in advance by speaking with Mesika by phone.
[Id. at 54]. At the designated time and place,
Special Agent Tolman arrived at Mesika's business in an
unmarked car, along with Special Agent Gerald Dunham, also of
the FDA. [Id. at 55]. Both were wearing casual
clothes. [Id.]. The agents were armed, but their
weapons were not visible. [Id.]. Upon their arrival,
Mesika met the agents, who showed Mesika their credentials.
Agent Tolman testified that he and Special Agent Dunham
entered Mesika's business into an open room similar in
size to my courtroom, and they sat down at a conference
table. [Tr. at 56]. The conversation began with a discussion
about Mesika's love for fine art, and then it moved on to
Mesika's business. [Id. at 57]. According to
Special Agent Tolman, Mesika appeared relaxed during the
conversation, and was not nervous. [Id. at 57-59].
At one point, Mesika did not fully answer a question about
where he was obtaining his product, but the agents did not
press the issue. [Id. at 58-59]. The interview
lasted about thirty minutes, and ended with Mesika making a
joke about the agents' car (a Hyundai Sonata).
[Id. at 60].
The October 4, 2013 Statement
Agent Kriplean testified that he was part of a team that
began investigating Mesika and Houser in August 2012. [Tr. at
7-8]. According to Special Agent Kriplean, he conducted an
interview with Mesika on October 4, 2013 at 4301 Pleasantdale
Road, which was one of the locations where Mesika operated
his dietary supplement businesses. [Id. at 8-9].
Special Agent Kriplean testified that the previous month, law
enforcement had executed a search warrant in Texas on a
supplement distribution company, and that search revealed
evidence that one of Mesika's businesses may have
manufactured some of the products that were discovered.
[Id. at 9]. Following the search, the agents
obtained a federal grand jury subpoena for one of
Mesika's businesses. [Id.].
October 4, 2013, Special Agent Kriplean and another agent
went to Mesika's business on Pleasantdale Road in Atlanta
with two purposes in mind-to serve the subpoena and to
interview anyone they could at the location. [Tr. at 9, 23].
The agents arrived at the location in an unmarked car wearing
business casual clothing but with their badges and firearms
exposed. [Id. at 10]. Upon arrival, the agents
identified themselves as agents with the FDA and showed their
credentials to a woman named Elizabeth Kuecher. [Id.
at 11]. Special Agent Kriplean testified that he told Ms.
Kuecher that “we had some documents to provide to the
owners, and we would like to speak to one of them.”
[Id.]. In response, Ms. Kuecher stated that neither
was present but that she could call one of them on the phone,
which she did. [Id. at 11-12]. She then made a phone
call that lasted about thirty seconds and advised the agents
that Mesika would be coming to meet them in about fifteen
minutes. [Id. at 12].
agents waited for Mesika in the foyer area, standing near a
conference table. [Tr. at 13]. Approximately fifteen minutes
later, Mesika arrived. [Id. at 14]. The agents
identified themselves to him as agents, and they displayed
their credentials. [Id.]. Then they all sat down at
the conference table and spoke for approximately twenty
minutes. [Id. at 16]. Special Agent Kriplean
described the room as follows: “[I]t's a business
about the size of this courtroom, and there aren't any
partitioned walls per se that you can see. The conference
table is visible from the front door, as is all the desks and
the computers and such. . . one large room.”
[Id. at 32]. Special Agent Kriplean sat at the head
of the table; Mesika was seated to his left, and the other
agent was seated to his right. [Id. at 16].
According to Special Agent Kriplean, Mesika was not
restrained in any way, and there was nothing that might have
caused Mesika to believe that he was not free to leave.
Agent Kriplean testified that he did not tell Mesika that he
was under arrest or that he was required to answer any
questions. [Tr. at 16-17]. He described the interview as a
“casual conversation” that was not
confrontational, and he described Mesika's demeanor as
“calm.” [Id. at 17]. When Special Agent
Kriplean asked Mesika who manufactured the products that his
company was distributing, Mesika declined to answer and said
that he would not like to answer any more questions without
talking to his attorney. [Id. at 17-18]. Special
Agent Kriplean testified that after that point, they did not
ask any more questions, and they served the grand jury
subpoena on Mesika. [Id. at 18]. He explained to
Mesika in general terms what the subpoena was, what records
it was seeking, and how Mesika could produce the records.
[Id.]. Special Agent Kriplean testified that after
Mesika was served with the subpoena and while Kriplean was
going over the subpoena, Mesika “made a comment to the
effect that he had previously had an encounter with FDA
agents regarding a purchase of products that had a banned
substance in it that was not banned at the time that the
product was purchased.” [Id.]. At that point,
the agents left. [Id. at 19].
Mesika's Statements Motion
noted above, Mesika originally moved to suppress only the
October 4, 2013 statement but later supplemented his motion
to include the May 16, 2013 statement. [Docs. 47, 61].
Following the evidentiary hearing and the preparation of the
transcript, Mesika filed a post-hearing brief omitting some
of the arguments that he had previously made. [Doc. 80]. The
Government filed a response. [Doc. 84]. Mesika did not file a
reply. In his post-hearing brief, Mesika argues that he was
entitled to Miranda warnings during both interviews
for several reasons that are discussed more fully below.
arguments fall into two categories. First, he argues that he
was effectively in custody during the interview, such that
the agents' failure to advise him of his Miranda
rights renders his statements inadmissible. Second, he argues
that his statements were not voluntary. [Doc. 80 at 4-6]. As
explained below, I find both these arguments to be meritless,
and I recommend that the Statements Motion be DENIED.
Whether Mesika Was in Custody
custody, a suspect may not be interrogated unless he is
advised of his Miranda rights, he demonstrates that
he understands them, and he voluntarily waives them, either
explicitly or implicitly. See Yarborough v.
Alvarado, 541 U.S. 652, 661-63 (2004). Custody is
established if, in light of the circumstances of an
interrogation, a reasonable person would have felt that he
was not at liberty to terminate the interrogation and leave.
See id at 663. The test is objective: whether a
reasonable person in the defendant's position would feel
a restraint on his freedom equivalent to that normally
associated with formal arrest. See Berkemer v.
McCarty, 468 U.S. 420, 441 (1984); United States v.
Torkington, 874 F.2d 1441, 1445 (11th Cir. 1989). The
Eleventh Circuit considers several factors in applying this
objective test, including whether the officers brandished
weapons, touched the suspect, or used language or a tone that
indicated that compliance with the officers could be
compelled. See United States v. Street, 472 F.3d
1298, 1309 (11th Cir. 2006). No particular fact in the
“custody” analysis is outcome determinative;
rather, the court simply weighs the totality of the
circumstances. See United States v. Lall, 607 F.3d
1277, 1284 (11th Cir. 2010). Defendant carries the burden of
showing that he was in custody, and therefore, that
Miranda warnings were necessary. See United
States v. de la Fuente, 548 F.2d 528, 533 (5th Cir.
1977); United States v. Peck, 17 F.Supp.3d 1345,
1353-55 (N.D.Ga. 2014) (discussing the applicability of
de la Fuente).
support of his contention that he was effectively in custody,
Mesika points to the following facts:
. at the time of the interviews, Mesika was
under federal investigation, the outcome of which could
affect Mesika's freedom;
. the agents used a “ruse” and
various “tactics” to get Mesika to talk,
specifically during the second interview when they did not
tell him up front that they were there to serve a subpoena on
. the interviews were conducted in a
hostile, freedom-inhibiting environment; and
. the questions posed were designed to
elicit inculpatory statements.
[Doc. 80 at 4-6]. According to Mesika, these facts would make
a reasonable, innocent person believe that he was not free to
leave, meaning that Mesika should have been given
of the circumstances presented in this case leads to a
conclusion that Mesika has not carried his burden of
establishing that he was in custody, for Miranda
purposes, during his interviews. The undisputed evidence is
that he agreed to be interviewed, and he arrived at both the
interviews without the assistance or involvement of law
enforcement, knowing that federal agents wanted to speak with
him. Although he was not told that he was free to leave, he
also was not told that he could not leave. The tone of the
interviews was calm, and there is no evidence that either
interview became confrontational. There is no evidence that
the agents touched Mesika, brandished their weapons, or
prevented him from leaving. When, during the second
interview, Mesika indicated that he wanted to speak with a
lawyer, the questioning ceased. Mesika has presented no
evidence of any threats, coercion, or deception on the part
of law enforcement. To the extent Mesika implies that there
was something improper about the fact that the agents
conducted an interview with him that was designed to bolster
their case against him, he has presented no law to support
that argument. Nor has Mesika shown that the agents were
somehow required to serve the subpoena before attempting to
interview him. There is simply nothing in the record to show
that anything improper occurred or that there was any attempt
to intimidate or trick Mesika. In sum, there is no evidence
to support Mesika's argument that a reasonable person in
his position would have felt that he was subject to a
restraint on his freedom of movement akin to a formal arrest.
Because Mesika was not in custody when he made the statements
to the agents, Miranda warnings were not required.
Accordingly, this basis for his Statements Motion is without
Whether Mesika's Statements Were Voluntary
confession, in order to be admissible, must be free and
voluntary; that is, [it] must not be extracted by any sort of
threats or violence, nor obtained by any direct or implied
promises, however slight.” Bram v. United
States, 168 U.S. 532, 542-43 (1897) (citations omitted).
The focus of the voluntariness inquiry is on whether the
defendant was coerced by the government into making the
statement. See Colorado v. Connelly, 479 U.S. 157,
170 (1986) (citing Moran v. Burbine, 475 U.S. 412,
421 (1986) (“The relinquishment of the right must have
been voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion or
deception.”)). The issue of voluntariness is determined
by examining the totality of the circumstances, and the
burden is on the Government to establish, by a preponderance
of the evidence, that a challenged confession was voluntary.
See Lall, 607 F.3d at 1285.
post-hearing brief, Mesika makes only a single passing
reference to the voluntariness of his statement: “The
fact that Mesika was not informed of his Miranda
rights or told that he was free to stop the interview at any
time also indicates his statement was not voluntarily made
with knowledge of the situation facing him.” [Doc. 80
at 4]. This argument fails both factually and legally. There
is no evidence of any threats, violence, or promises. There
is no evidence to indicate that Mesika was held in the
conference room, that he was in an intimidating custodial
condition, or that he was deprived of his liberty at any
point during either interview. Mesika was not handcuffed or
restrained during the interviews, and the undisputed evidence
is that everyone spoke in calm, non-confrontational tones.
There is simply nothing in the record to suggest that Mesika
was coerced, threatened, or intimidated into speaking with
the agents, or that the agents made any promises to induce
him to talk. Moreover, the fact that Mesika requested an
attorney during the second interview shows that he had the
ability to refuse to answer questions and that he was aware