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United States v. Mesika

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

March 30, 2018

UNITED STATES OF AMERICA,
v.
BENY MESIKA and ELIZABETH KUECHER, Defendants.

          REPORT AND RECOMMENDATION

          CATHERINE M. SALINAS UNITED STATES MAGISTRATE JUDGE.

         On June 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. ¶¶ 6-16].

         On 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.

         On 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 Twenty-Five).

         This 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. 110].

         STATEMENTS MOTION

         I. BACKGROUND

         In 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].

         Two 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.

         On 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.

         A. The May 16, 2013 Statement

         Scott 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. [Id.].

         Special 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].

         B. The October 4, 2013 Statement

         Special 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.[1] [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.[2] [Id.].

         On 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].

         The 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. [Id.].

         Special 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].

         C. Mesika's Statements Motion

         As 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.[3] [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.

         II. DISCUSSION

         Mesika's 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.

         1. Whether Mesika Was in Custody

         Once in 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).

         In 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 him;
. 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 Miranda warnings.

         Analysis 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 merit.

         2. Whether Mesika's Statements Were Voluntary

         “[A] 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.

         In his 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 of ...


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