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United States v. Doan

United States District Court, E.D. Virginia, Alexandria Division

April 27, 2016

UNITED STATES OF AMERICA
v.
BAO Q. DOAN

MEMORANDUM OPINION

T. S. Ellis, III United States District Judge

A three-count indictment has issued charging defendant with one count of conspiring to traffic in counterfeit goods, in violation of 18 U.S.C. § 2320(a)(1), and two counts of smuggling, in violation of 18 U.S.C. § 545. At issue on defendant's pre-trial motion to suppress and motion for a bill of particulars are the following questions:

(i) whether the fruits of three pre-arrest interrogations should be suppressed because defendant was in custody during each of those interrogations and was not provided Miranda[1] warnings;
(ii) whether defendant knowingly and voluntarily consented to a number of searches of his property; and
(iii) whether the government's indictment is sufficiently particularized.

The matter has been fully briefed and argued, and for the reasons stated from the bench, an Order issued denying defendant's motion to suppress and defendant's motion for a bill of particulars. United States v. Bao Q. Doan, No. l:16-CR-56 (April 22, 2016) (Order) (Doc. 35).[2] This Memorandum Opinion records and elucidates the reasons for denying defendant's motion to suppress and defendant's motion for a bill of particulars.

I.

During the April 22, 2016 hearing on defendant's motion to suppress, the government presented exhibits and testimony from Raymond Abruzzese ("Agent Abruzzese"), a special agent with the Department of Homeland Security ("DHS"). Agent Abruzzese's testimony was cogent and credible. Defendant Bao Q. Doan also testified.

The pertinent facts, derived from the testimony of these two witnesses and the exhibits admitted during the April 22, 2016 hearing, may be succinctly summarized.

• Defendant, a thirty-two year old resident of Falls Church, Virginia, is the owner and operator of IFAIFO, a small business that sells cell phone parts and offers device-repair services.
• Defendant, a United States citizen, was born in Vietnam, and English is his second language. Defendant lived in Vietnam through his teenage years before moving to the United States in 2002. Defendant earned a Bachelor of Science degree in Finance from George Mason University, where he attended classes taught in English and passed examinations in English. Although an interpreter was present during the April 22, 2016 hearing, defendant answered all questions in English and demonstrated that he clearly understood all but one of the questions put to him in English.[3]
• Defendant testified that growing up in Vietnam, he knew friends and relatives who were punished for disobeying law enforcement officials. Specifically, defendant testified that he witnessed government officials harassing friends and relatives who had disobeyed law enforcement officials. He stated that these persons were sent to jail, physically harmed, and sometimes sent to reeducation. Defendant also testified that it is the custom and belief in Vietnam to obey and not to resist any law enforcement request. He further testified that in sharp contrast to Vietnam, defendant perceives the United States to be a fair country.
• On April 29, 2015, a search warrant issued for defendant's business for evidence of trafficking in counterfeit goods, in violation of 18 U.S.C. § 2320(a), and smuggling, in violation of 18 U.S.C. § 545.
• On April 30, 2015, during the daytime, nine Homeland Security Investigation ("HSI") agents, including Agent Abruzzese, executed a warrant for the search of the Falls Church business premises of IFAIFO. Although the agents were armed, they did not brandish or display their weapons, which remained in their holsters throughout the six-hour search.
• When the agents first arrived at defendant's business, which is located in a commercial business corridor in Falls Church, Virginia, they encountered defendant, defendant's father, and an employee of defendant's business. The agents informed these three individuals that the agents had a warrant to search the business premises. The agents also asked these three individuals to remain in the front part of the store for a few minutes while the agents conducted a brief protective sweep of the interior of the business as a safety precaution.
• After the agents confirmed that there were no threats present on the business premises, Agent Abruzzese returned to the front part of the store and told the three individuals that they were not under arrest, that they were free to go, and that the agents would continue to search the premises.
• Although defendant's father and the employee left the premises, defendant stayed for the entirety of the search. During the search, defendant remained in a chair near the front of the store, even though he was not required to remain there. Defendant was allowed to use his cell phone during the search.
• At some point during the search, defendant consented to being interviewed by Agent Abruzzese. Prior to obtaining defendant's consent, Agent Abruzzese explained that defendant was not under arrest, that defendant was able to leave at any time, that the search related to an ongoing investigation, that defendant was a target of that investigation, [4] and that defendant was not required to consent to an interview. Defendant indicated ...

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