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United States v. Crawford

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

September 24, 2019

UNITED STATES OF AMERICA
v.
FERNANDO CRAWFORD

          FINAL REPORT AND RECOMMENDATION

          JOHN K. LARKINS III United States Magistrate Judge.

         The case is presently before the Court on Defendant Fernando Crawford's motion to suppress statements he made during a custodial interview following his arrest on August 22, 2018. [Doc. 78.] On July 26, 2019, I held an evidentiary hearing on the motion, at which FBI Special Agent Paul Fike, one of the agents who interviewed Crawford, testified. [Doc. 94.] Transcript references are to the transcript of that hearing. [Doc. 100 (hereinafter “Tr.”)]. Following the hearing, Crawford submitted a brief in support of his motion [Doc. 99], the government filed a response brief [Doc. 102], and Crawford a reply [Doc. 104]. The Court also directed supplemental briefing about a specific portion of the agents' interview with Crawford [Doc. 105], but, as explained below, supplemental briefing is no longer needed because the government does not intend to use that portion of the interview in its case-in-chief at trial. For the following reasons, it is RECOMMENDED that the motion be DENIED.

         I. SUMMARY OF CHARGES AGAINST CRAWFORD

         The charges in this case out of an alleged scheme whereby Crawford and his wife, co-defendant Leena Awad, embezzled funds from Ms. Awad's former employer, Flood Brothers, Inc. [See Doc. 1 (Indictment).] According to the indictment, Awad formerly worked at Flood Brothers as a payroll and human resources specialist, handling payroll for the company. [Id. ¶¶ 2-4.] Allegedly, Awad fraudulently added Crawford to the company payroll, which resulted in Crawford receiving a paycheck, even though he was never employed by the company. [Id. ¶¶ 7-9.] The indictment identifies nine specific dates from March 2014 to December 2015 on which Awad allegedly emailed false payroll information to the payroll vendor and, for each instance, the corresponding gross payment to Crawford. [Id. ¶ 12.] The scheme allegedly caused a total loss to Flood Brothers of over a million dollars. [Id. ¶¶ 1, 9.]

         The indictment further alleges that on or about August 3, 2014, Crawford completed an Affidavit of Support, Form I-864, in support of an immigration application submitted by Awad, and represented, under penalty of perjury, “that he was currently employed at ‘Flood Brothers, Inc.' as a ‘Senior Project Manager.'” [Doc. 1 ¶ 16.] According to the indictment, Crawford knew his statement was false, in that he did not work for Flood Brothers. [Id.]

         On August 16, 2018, Crawford was indicted on one count of conspiracy to commit wire fraud, 18 U.S.C. § 1349 (Count 1); nine substantive counts of wire fraud, 18 U.S.C. § 1343 (Counts 2-10); and a single count of false swearing in an immigration matter, 18 U.S.C. § 1546(a) (Count 12).[1]

         II. FACTS

         On the morning of August 22, 2018, eight to ten FBI agents, including SA Fike, arrived at Crawford and Awad's residence to execute warrants for their arrest on the indictment in this case. (Tr. at 4-5.) After securing the perimeter of the house, a team of agents approached the front door and knocked and announced their presence. (Id. at 6.) Crawford and Awad came out of the house and were handcuffed. (Id. at 7.) SA Fike and FBI Special Agent Joseph Stites then approached Crawford, introduced themselves, and escorted him to a car to transport him to the federal courthouse for processing. (Id. at 7-8.) The agents did not yell at Crawford or exert physical force on him, nor did they have their firearms drawn on him. (Id.) SA Fike and SA Stites placed Crawford, whose hands remained handcuffed behind his back, in the rear seat on the passenger side of the car and belted him in. (Id. at 8.) SA Stites drove the car, and SA Fike sat in the rear seat next to Crawford. (Id. at 8-9.) The agents' handguns remained holstered. (Id. at 9.)

         At approximately 7:08 a.m., the agents began to interview Crawford. (Tr. at 9.) The interview was audio recorded. (Id.[2]) At the outset of the interview, SA Fike advised Crawford of his Miranda rights, reading verbatim the FBI Advice of Rights form, FBI Form FD-395. (Id. at 10-12; File 1 at 0:40-1:13; Gov't Ex. 2 [Doc. 96 at 3].) Crawford verbally indicated that he understood his rights and waived his rights. (Tr. at 10; File 1 at 1:13-1:20.) He did not execute a written waiver because he was handcuffed in the car at the time. (Tr. at 10.)

         Crawford proceeded to answer questions for approximately ten minutes. (Tr. at 12; see File 1.) At around 7:19 a.m., Crawford stated that he no longer wanted to answer questions, so the agents concluded the interview at that point and turned the recording off. (Tr. at 12.) Before and during the interview, the agents did not yell at Crawford, draw their weapons, and or make any promises or threats. (Id.) Indeed, at no point during Crawford's encounter did SA Fike or SA Stites point a weapon at him or use physical force. (Id. at 15.) The tone of the interview was calm and professional; the agents did not yell, scream, or verbally intimidate Crawford at any point. (Id.) Crawford also appeared coherent at all times, and he did not appear to be under the influence of alcohol or any other substance that might affect his ability to answer questions. (Id. at 16.) He also did not ask for an attorney. (Id. at 17.)

         The interview briefly resumed at about 7:22 a.m., and Crawford answered questions for about six more minutes. (See Tr. at 13.) On September 23, 2019, counsel for the government notified the Court and Crawford's counsel by email that it does not intend to use that second part of Crawford's interview (i.e., the portion of the interview after Crawford indicated he did not want to answer questions) in its case-in-chief at trial. Thus, in the following analysis, the Court considers only the validity of Crawford's Miranda waiver and the voluntariness of his statements as to the first part of the interview, contained in File 1. Additional facts are discussed in context below.

         III. DISCUSSION

         The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court created a presumption that statements elicited during a custodial interrogation of a suspect are coerced unless the suspect is first advised of his constitutional right to remain silent and to have an attorney present during any questioning. United States v. Patane, 542 U.S. 630, 639 (2004); Miranda, 384 U.S. at 444-45. “[T]he accused's statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused ‘in fact knowingly and voluntarily waived [Miranda] rights' when making the statement.” Berghuis v. Thompkins, 560 U.S. 370, 382 (2010) (second alteration in original) (quoting North Carolina v. Butler, 441 U.S. 369 (1979)). This inquiry has “[t]wo distinct dimensions”:

First, 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. Second, the waiver must have been made with a full awareness of both the nature of the right ...

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