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United States v. Mshihiri

United States District Court, D. Minnesota

January 31, 2014

United States of America, Plaintiff,
v.
Alpha Rashidi Mshihiri, Defendant.

Lola Velazquez-Aguilu, Assistant U.S. Attorney, 300 South Fourth Street, Suite 600, Minneapolis, MN 55415, counsel for plaintiff.

Rick E. Mattox, Esq., Mattox Law Office, 16670 Franklin Trail S.E., Suite 250, Prior Lake, MN 55372, counsel for defendant.

ORDER

DAVID S. DOTY, District Judge.

This matter is before the court upon the objection by defendant Alpha Rashidi Mshihiri to the December 20, 2013, report and recommendation of United States Magistrate Judge Jeffrey J. Keyes. Based on a review of the file, record and proceedings herein, and for the following reasons, the court overrules the objection.

BACKGROUND

The background of this matter is fully set forth in the report and recommendation, and the court summarizes only those facts necessary to resolve the current objection.

After Mshihiri became a suspect in a mortgage fraud investigation, federal agents applied for search warrants on Mshihiri's home, laptop computer and storage devices. Mot. Hr'g Tr. 13:11-19; Mot. Hr'g Gov't Exs. 1, 2. Internal Revenue Service Special Agent Jim Shoup submitted an affidavit in support of the warrants, stating that he had interviewed a confidential reliable informant (CRI) on several occasions and the CRI had implicated himself and Mshihiri in fraudulent conduct. See, e.g., Mot. Hr'g Gov't Ex. 1 ¶ 13. Shoup also attested to reviewing loan and real-estate purchase records that indicated that Mshihiri was involved in fraudulent conduct. Id . ¶ 14. Shoup also attested that the CRI had identified another individual, Oluwaleye Oluwatula, who had assisted Mshihiri in fraudulent acts. Id . ¶ 29. Shoup attested to having interviewed Oluwatula, who admitted working with Mshihiri in obtaining fraudulent loans. Id . ¶ 31. The applications for the search warrants were granted, and agents executed the search warrants on Mshihiri's house on June 30, 2010. Id. at Cover Sheet.

On September 16, 2010, Shoup and United States Secret Service Agent Michael Olson interviewed Mshihiri at the Minneapolis-St. Paul International Airport as part of the investigation. Mot. Hf'g Tr. 12:12-17, 13:4-8. Olson and Shoup liaised with Customs and Border Protection (CBP) officers and intercepted Mshihiri after he reentered the United States following an international flight originating in Dar es Salaam, Tanzania. Id. at 15:5-16:9, 48:2-6. CBP officers escorted Mshihiri to a lounge, where Olson testified that he and Shoup met him. Id. at 16:25-17:22. Olson testified that the agents introduced themselves to Mshihiri, presented their credentials and explained that Mshihiri was not under arrest or obligated to answer questions. Id. at 19:4-18. Olson testified that Mshihiri agreed to speak with the agents and voluntarily accompanied them to an interview room. Id. at 19:18-19. Mshihiri testified, however, that he first encountered the agents when he was already in the interview room. Id. at 49:20-50:9.

Mshihiri was questioned in relation to the fraud investigation. Id. at 21:12-14. Mshihiri testified that, near the beginning of the questioning, a CBP officer opened the door of the interview room, took his phone and told him to cooperate with Olson and Shoup or else his immigration status would be compromised. Id. at 50:24-51:2, 52:16-24. Mshihiri further testified that the CBP officer looked inside the interview room numerous times during the interview. Id. at 58:16-60:5. Olson testified, however, that he had no recollection of a CBP officer entering the interview room or making statements of any kind to Mshihiri during questioning. Id. at 80:16-81:9.

Olson testified that Mshihiri seemed inquisitive and posed questions of his own during the interview. Id. at 21:21-22:13. Olson testified that Mshihiri never requested a break, attempted to stop the questioning or asked to speak with anyone, including his wife or an attorney. Id. at 23:6-13. Mshihiri testified, however, that he asked the agents if he could speak with his wife and inform her of the delay, and the agents did not allow him to do so. Id. at 50:12-23. Mshihiri testified that he intended to call his wife to instruct her to contact a lawyer. Id. at 51:3-8. Mshihiri then testified that he explicitly informed the agents of his wish to speak with an attorney. Id. at 51:10-11.

The interview - which was not recorded - concluded after forty minutes, at which point Shoup informed Mshihiri that search warrants had been obtained for his person and property and advised him that he was the subject of a target letter from the United States Attorney's Office. Id. at 22:20-25. Olson testified that the he and Shoup executed the search warrant for Mshihiri's laptop and storage devices either just before or after they interviewed him. Id. at 25:23-26:16. Mshihiri was not arrested upon the conclusion of the interview. Id. at 24:2-3.

On December 20, 2013, the magistrate judge recommended that the court deny Mshihiri's motions to suppress (1) statements made during the interview on September 16, 2010, and (2) evidence seized as a result of the search warrants. Mshihiri objects.

DISCUSSION

The court reviews the report and recommendation of the magistrate judge de novo. 28 U.S.C. § 636(b)(1)(C); Fed. R. ...


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