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United States v. Krawczyk

United States District Court, Ninth Circuit

June 10, 2013

United States of America, Plaintiff,
Dariusz Krawczyk, Defendant.


DAVID G. CAMPBELL, District Judge.

Defendant Dariusz Krawczyk has filed a motion to suppress. Doc. 44. The motion is fully briefed (Docs. 45, 47, 55, 56), and the Court held an evidentiary hearing on April 3, 2013. Following the hearing, Defendant filed a motion to depose two witnesses. Doc. 68. That motion is also fully briefed. Docs. 69, 71. For the reasons that follow, the Court will deny the motion for depositions, grant the motion to suppress in part, and deny the motion to suppress in part.

I. Motion for Depositions.

Defendant asks the Court for permission to depose Jack Tsou, an officer of U.S. Customs and Border Protection ("CBP"), and Jenny Chen, an employee of Peace Express, Inc., the company Defendant retained to assist him in importing a pill-making machine from China. Alternatively, Defendant asks the Court to order their attendance at a further evidentiary hearing. The government opposes Defendant's motion on the ground that Defendant has failed to show exceptional circumstances to justify the depositions under Federal Rule of Criminal Procedure 15(a) because there is no factual dispute warranting the additional discovery.

Depositions in criminal cases "are not allowed merely for the purpose of discovery." United States v. Rich, 580 F.2d 929, 933-34 (9th Cir. 1978). "A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice." Fed. R. Crim. P. 15(a)(1). "The district court retains broad discretion in granting a Rule 15(a) motion, and considers the particular circumstances of each case to determine whether the exceptional circumstances requirement has been satisfied." United States v. Omene, 143 F.3d 1167, 1170 (9th Cir. 1998) (quotation marks and citations omitted).

Defendant argues that the warrant affidavit provided by Agent Erin Hager of the Drug Enforcement Agency ("DEA") was intentionally misleading in asserting that Defendant, when asked to provide information to CBP in order to complete importation of the pill-making machine, "forwarded an unrelated Air Waybill documenting the shipment of a tableting machine that had been successfully importuned and delivered to an associate of Krawczyk in October 2007." Doc. 44-1 at 7. Defendant submits that the implication of this statement is that he provided the 2007 Air Waybill to CBP as an importing document. Defendant argues that this implication was intentionally misleading and that discovery is necessary to establish how CBP actually obtained the Waybill. Defendant further argues that Agent Hager misled the Court at the evidentiary hearing when she suggested that the waybill had been provided to CBP by Peace Express as part of the importation process.

After hearing testimony at the evidentiary hearing, reviewing exhibits marked at the hearing, and reviewing Defendant's request for depositions and the briefing and exhibits related to that request, the Court reaches several conclusions. First, the manner in which the Waybill came into the possession of CBP is not in dispute. Second, Defendant provided the Waybill to Peace Express during efforts to complete importation of the pill-making machine. Third, Defendant's accusations of bad faith and government misconduct, although based on some factual inaccuracies in affidavits and the hearing testimony, greatly overstate the seriousness of the government's conduct in this case.

Attached to Defendant's motion is an email chain in which the government confirms how CBP obtained the 2007 Air Waybill. Doc. 68-1. The government admits that Peace Express sent the Waybill to CBP in response to Agent Jack Tsou's request for the complete file of Peace Express. Doc. 69 at 8. Exhibits attached to the government's response brief confirm these facts. Docs. 69-1 through 69-5. Thus, there is no dispute that CBP requested, and Peace Express provided, a copy of the Waybill. No deposition is needed to establish this fact.

It is also undisputed that Peace Express received the Waybill from Defendant. Although Defendant initially denied that he was the source of the Waybill and even implied that it might be a forgery, he now admits that he provided the Waybill to Peace Express, his agent in securing importation of the pill-making machine. See Doc. 71 at 2. And Defendant does not dispute that he provided the Waybill to Peace Express while it was in the process of attempting to complete importation of the pill-making machine.

Given these facts, the Court is fully equipped to evaluate Defendant's claims of government bad faith. The Court has before it the actual facts concerning the Waybill, as well as the affidavit provided by the government to obtain the tracking warrant and the testimony of Agent Hager at the evidentiary hearing. Depositions of Jenny Chen and Agent Tsou would provide no additional relevant information. As a result, Defendant has failed to establish extraordinary circumstances warranting Rule 15 depositions.[1]

II. Motion to Suppress.

The Court will address Defendant's claims of government bad faith in connection with the other arguments raised in his motion to suppress.

A. Seizure of the Machine in California.

The government alleges that Defendant sought to import a pill-making machine in order to manufacture illegal drugs. The machine was shipped from China to the United States, where it was stopped by CBP in Long Beach, California. Believing that the machine may be entering the United States for illegal purposes, CBP contacted the DEA. On April 11, 2011, DEA Agent Erin Hager traveled to Long Beach with another law enforcement officer to learn more about the machine. As a result of this meeting and related investigations, Agent Hager decided to take possession of the machine and apply for and obtain a tracking device warrant on April 15, 2011. The tracking device was installed on the machine in accordance with ...

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