United States v. Avitan

349 F. Supp. 3d 23
CourtCourt of Appeals for the D.C. Circuit
DecidedOctober 4, 2018
DocketCriminal Action No. 17-17 (CKK)
StatusPublished
Cited by3 cases

This text of 349 F. Supp. 3d 23 (United States v. Avitan) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Avitan, 349 F. Supp. 3d 23 (D.C. Cir. 2018).

Opinion

COLLEEN KOLLAR-KOTELLY, United States District Judge

In this criminal action, Defendant Yossi Avitan is charged with Conspiracy to Operate an Unlicensed Money Transmitting Business in violation of 18 U.S.C. §§ 2, 371, and 1960(b)(1)(A), (B), and (C). Defendant has moved under Federal Rule of Criminal Procedure 12(b)(3) to suppress certain statements Defendant made to law enforcement agents that were allegedly procured unconstitutionally. The government has indicated that it does not intend to use Defendant's statements during its case in chief but does want the option of using the statements for impeachment. Defendant argues that the government cannot use the statements, even for impeachment, because they were obtained involuntarily in violation of the Due Process Clause. Because the government will not use the statements during the case in chief, the Court need only determine if the statements were obtained voluntarily as required by the Due Process Clause. See Oregon v. Hass , 420 U.S. 714, 723-24, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) (allowing statements obtained in violation of Miranda to be used for impeachment if there is no evidence that the statements "were involuntary or coerced").

Upon consideration of the pleadings,1 the relevant legal authorities, and the record as a whole, the Court DENIES Defendant's Motion to Suppress. The Court concludes that the statements were made voluntarily under the Due Process Clause.

I. FINDINGS OF FACT

The Court held an evidentiary hearing on Defendant's motion to suppress on August *2627, 2018 and September 5, 2018. The Court has considered the evidence presented at both days of the hearing. In doing so, the Court considered the demeanor and behavior of the witnesses on the stand, the witnesses' manner of testifying, whether the witnesses impressed the Court as truthful, whether the witnesses impressed the Court as having an accurate memory and recollection, whether the witnesses had any motive for not telling the truth, whether the witnesses had a full opportunity to observe the matters about which they testified, and whether the witnesses had any interest in the outcome of the case, or friendship or hostility to the other persons concerned with the case. The Court also considered the reasonableness or unreasonableness and the probability or improbability of the testimony of the witnesses in determining whether to accept it as true and accurate, as well as whether the testimony was contradicted or supported by other credible evidence. The Court has also considered the pleadings and the entire record in this case.

The Court credits the testimony of the witnesses Joseph Lewis, Daniel Harding, and Yossi Avitan as follows.

The Court makes the following findings of fact. The Court will first make findings of fact that are relevant to the Defendant's motion and undisputed and/or uncontroverted by any evidence, and then make findings as to facts that are relevant and disputed or controverted by some evidence.

A. The Undisputed or Uncontroverted Relevant Evidence

Beginning in the Summer of 2015, United States law enforcement agents began investigating an allegedly illegal money transmitting service. August 27, 2018 Hr'g Tr. at 5: 1. On March 2, 2017, arrests took place in the United States and in Israel involving the allegedly illegal money transmitting service. Id. at 5: 8-11. Defendant Yossi Avitan was not arrested at that time because law enforcement anticipated his presence at a residence in Miami, Florida, but he was not there. Id. at 5: 21-25. Instead, Defendant was in Morocco, a country which does not have an extradition treaty with the United States. Id. at 9: 21-10: 2. Defendant knew that United States law enforcement would be unable to reach him while he was in Morocco. Id. at 111: 4-6.

About two to three days after the initial arrests took place, Defendant was told about at least some of the arrests by the wife of Itzhak Salama, another defendant in this case. Id. at 103: 9-12. Approximately three months after speaking with Defendant Salama's wife, Defendant spoke with Moshe Mazor, an Israeli attorney who is Defendant's friend. Id. at 90: 18-20. Mr. Mazor went to Morocco and told Defendant more about the March 2, 2017 arrests. He showed Defendant the indictment and explained that Defendant was one of the people in the indictment. Id. at 90: 22-25.

Following the conversation with Mr. Mazor, on August 8, 2017, Defendant called Federal Bureau of Investigation Special Agent Joseph Lewis. Id. at 91: 6-9. This call was Agent Lewis's first contact with Defendant. Id. at 6: 6-9. When Agent Lewis received the call he was in the office of Assistant United State Attorney Diane Lucas. Id. at. 6: 12-13. Agent Lewis had an appointment and could not speak at that time, so he asked Defendant to call him back the next morning. Id. at 7: 13-16.

Defendant called back Agent Lewis the next morning. Id. at 7: 17-20. Defendant indicated that he had seen a piece of paper which had both the Agent's name and number and the Defendant's name on it. Defendant stated that he was calling to *27determine why Defendant's name was on this piece of paper.

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Cite This Page — Counsel Stack

Bluebook (online)
349 F. Supp. 3d 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-avitan-cadc-2018.