United States District Court, D. Minnesota
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.
M. Pacyga and Marie C. Pacyga, Pacyga and Associates, for
MEMORANDUM OPINION AND ORDER
RICHARD NELSON, United States District Judge
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]. 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.
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.
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
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.)
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.)
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.)
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.)
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.)
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.)
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 ...