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United States v. McConnell

United States District Court, D. Minnesota

January 30, 2017

United States of America, Plaintiff,
Lachlan Scott McConnell (6), Defendant.

          Linda I. Marks, Jacqueline Blaesi-Freed, U.S. Department of Justice, Consumer Protection Branch, and Roger J. Gural, U.S. Department of Justice, Civil Division, for Plaintiff.

          Ryan M. Pacyga and Marie C. Pacyga, Pacyga and Associates, for Defendant.


          SUSAN RICHARD NELSON, United States District Judge


         This matter comes before the undersigned United States District Judge on Defendant Lachlan Scott McConnell's Objections [Doc. No. 759] to United States Magistrate Judge Franklin L. Noel's Report and Recommendation (“R&R”), dated December 23, 2016 [Doc. No. 744].[1] The magistrate judge recommended that McConnell's motion to suppress [Doc. No. 599], motions to dismiss and suppress [Doc. Nos. 600, 604, and 616], and motions to suppress electronic surveillance [Doc. Nos. 603 and 623] be denied.

         Pursuant to statute, this Court reviews de novo any portion of the magistrate judge's opinion to which specific objections are made, and “may accept, reject, or modify, in whole or in part, the findings or recommendations” contained in that opinion. 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Crim. P. 59(b)(C); D. Minn. LR 72.2(b)(3). Based on that de novo review, and for the reasons set forth below, the Court overrules Defendant's objections and adopts the R&R in its entirety, with one clarification regarding statutory presentment.


         The facts underpinning McConnell's motions have been thoroughly and accurately documented in the Factual Background section of the R&R, which the Court incorporates herein by reference. Briefly stated, in November 2013, McConnell and ten other defendants were indicted in connection with a scheme to market and sell illegal prescription drugs in the United States. (See Indictment [Doc. No. 5] ¶ 1.) Of particular relevance here, the Indictment alleges that McConnell “assisted with various aspects of the [scheme's] operations, including establishing corporations, bank accounts, credit cards, and shipping accounts, and pharmacy recruitment in the United States.” (Id. at ¶ 10.) He has been charged with one count of conspiracy to violate the Federal Food, Drug, and Cosmetic Act (“FDCA”), eleven counts of introducing misbranded drugs into interstate commerce, in violation of the FDCA, one count of conspiracy to commit wire and mail fraud, eleven counts of mail fraud, six counts of wire fraud, and five counts of unlawful distribution and dispensing of controlled substances, in violation of the Controlled Substances Act. (See generally Indictment.)

         Although McConnell was indicted in 2013, he was not arrested for several years. At the time of the indictment, McConnell was a resident of the Philippines. Upon learning of the charges that had been brought against him, McConnell contacted the Federal Defender's Office for the District of Minnesota, and was appointed CJA counsel-Messrs. Andrew Birrell and Paul Dworak. (Hr'g Tr. [Doc. No. 644] at 199, 260.) Birrell and Dworak contacted McConnell several times over the course of 2014, and in August of that year notified the Government that McConnell was interested in cooperating. (Id. at 177-78.) The parties discussed options for transporting McConnell to the United States, but those discussions concluded without agreement in September 2014. (Id. at 178, 183.) In particular, one subject that proved a sticking point was the best way to get McConnell from the Philippines to Minnesota without unnecessary delay. (Id. at 179.) Because no direct commercial flights exist between Manila and Minneapolis, the parties were concerned that McConnell's prompt presentment right would require him to be presented before a magistrate judge in California, delaying his arrival in this jurisdiction. (Id.) To circumvent that difficulty, the parties considered a possible waiver of McConnell's presentment rights. (Id. at 179-80.) Although no agreement was reached, Birrell and Dworak testified before the magistrate judge that they informed the Government that they continued to represent McConnell at least into early 2015. (Id. at 138.)

         McConnell is a Canadian citizen. Sometime in early 2016, the Canadian government revoked his passport. (Id. at 247.) In light of his status as a fugitive from U.S. justice and a foreigner present without a valid passport, the government of the Philippines charged McConnell with being an “unwanted/undesirable, ” and he was arrested by Filipino immigration officers on April 19, 2016. (See Hr'g Def. Ex. 2.) During the arrest, a single officer of the U.S. Drug Enforcement Administration (“DEA”), Special Agent Christopher Mueller, was present, but did not actively participate. (See Hr'g Tr. at 193, 196.)

         McConnell was taken to the Philippines Bureau of Immigration office in Manila, where he was brought to an office to meet with Special Agent Mueller. (Id. at 194, 197-98.) After brief questioning regarding his identity, language proficiency, etc., Special Agent Mueller presented McConnell with DEA Form 13-A: Oral Warnings to be Given to a Subject Prior to Interrogation. (See Hr'g Gov't Ex. 9.) The form set forth McConnell's right to remain silent, advised that any statements made during questioning might be used against him, indicated that he had the right to an attorney, and that if he could not afford an attorney one would be appointed for him. (Id.) The document further asked if McConnell would be willing to answer some questions. (Id.) After reviewing the document, McConnell signed it, and was further briefly questioned by Special Agent Mueller. (Hr'g Tr. at 255, 258.)

         Following his interview with Special Agent Mueller, McConnell was detained by Philippines immigration authorities at a holding facility in Bicutan, Philippines, pending his deportation. (Id. at 199.) According to McConnell, conditions at the facility were substandard and he did not feel safe there. (Id. at 201-02.) Nonetheless, throughout his detention, McConnell retained access to his cell phone and two laptop computers, as well as various hard drives, a thumb drive, a printer, and the internet. (Id. at 199, 264, 276.) In addition, McConnell was in regular contact with Special Agent Mueller, a close friend and “mentor” by the name of Jeff Williams, who had formerly worked for the U.S. Embassy in Manila, and personnel from the Canadian embassy. (Id. at 224, 225, 265, 268-69; Hr'g Def. Ex. C.). McConnell did not attempt to contact either Birrell or Dworak during his detention at Bicutan. (Hr'g Tr. at 264-65.)

         Shortly after his arrest, McConnell contacted Special Agent Mueller regarding arranging transportation to the United States. (Id. at 266, 272; Mueller Aff. [Doc. No. 667, Ex. A] ¶ 12.) Although he was aware that he could have sought deportation to Canada, where he would have been entitled to a lawyer in order to fight extradition to the United States, McConnell determined that travel to the United States was the preferable option to avoid delay in resolving his case. (Hr'g Tr. at 210, 272; Mueller Aff. ¶ 12.) Accordingly, over the next several weeks, McConnell worked with Special Agent Mueller and Canadian officials to secure the documentation required to allow him to leave the Philippines. (Hr'g Tr. at 205-06, 274.) Importantly, although McConnell's itinerary identified his ultimate destination as Vancouver, Canada, all parties-including Canadian consular officials- apparently understood that he would be detained by U.S. officials in Los Angeles. (Id. at 280-81; Mueller Aff. ¶ 14.)

         While in custody in Bicutan, McConnell asked Special Agent Mueller if the DEA had the capabilities to repair an inoperable hard drive in his possession that he thought might be of use to them in their investigation. (Hr'g Tr. at 224; Hr'g Def. Ex. C.) At McConnell's request, Jeff Williams delivered the hard drive-along with two other hard drives-to the DEA. (Hr'g Tr. at 225.) Although McConnell testified that he was “very surprised” that Williams had included the additional hard drives in the delivery, he did not ask for their return or otherwise indicate that the DEA should not search them. (Id. at 225, 275-76.)

         After finally securing the necessary travel documents, McConnell traveled by commercial flight from Manila to Los Angeles on June 1, 2016. Although Special Agent Mueller and one other DEA agent escorted McConnell, he was not handcuffed during the flight, and was free to move about the aircraft. (Id. at 287.) At some point during the flight, Special Agent Mueller gave McConnell a form purporting to be a waiver of his ...

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