United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION
K. LARKINS III United States Magistrate Judge.
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.
SUMMARY OF CHARGES AGAINST CRAWFORD
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.]
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.
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
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.)
approximately 7:08 a.m., the agents began to interview
Crawford. (Tr. at 9.) The interview was audio recorded.
(Id.) 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.)
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.)
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.
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
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 ...