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Home Source documents Court filing — No. 1:21-cr-00338 (Dkt. 63, D. Md.)

Court filing — No. 1:21-cr-00338 (Dkt. 63, D. Md.)

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            Case 1:21-cr-00338-RDB Document 63 Filed 11/29/22 Page 1 of 9



                    IN THE UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF MARYLAND

                                               *

UNITED STATES OF AMERICA                       *

       v.                                      *          CRIMINAL NO. RDB-21-0338

GLADSTONE NJOKEM,                              *

       Defendant.                              *
       *    *     *          *      *      *       *      *      *       *      *         *

                                 MEMORANDUM ORDER

       Defendant Gladstone Njokem (“Njokem” or “Defendant”) is one of three Defendants

in this case and has been charged with five counts in an eleven-count Indictment alleging one

count of conspiracy to commit wire fraud under 18 U.S.C. § 1349, three counts of wire fraud

under 18 U.S.C. § 1343, and one count of aggravated identity theft under 18 U.S.C. §

1028A(a)(1), (c)(4), (c)(5). (Indictment, ECF No. 1.) Now pending is Defendant’s Motion to

Suppress Statements (ECF No. 37) made by him on February 4, 2021, to law enforcement

agents. The Court has considered the Government’s Opposition (ECF No. 41) and the

Defendant’s Reply (ECF No. 55). This Court held a motions hearing on November 21, 2022,

and heard testimony from federal agent Joseph Zajac and Defendant Njokem on the matter.

(ECF No. 58.) For the reasons explained below, Defendant’s Motion is GRANTED, and

those statements made on February 4, 2021, shall be excluded at the trial of this case.

                                        BACKGROUND

       Federal agents executed a search warrant, issued by Magistrate Judge Thomas M.

DiGirolamo of this Court, “at a residence on which Mr. Njokem was a lessee” on February 4,
           Case 1:21-cr-00338-RDB Document 63 Filed 11/29/22 Page 2 of 9



2021. (ECF No. 37 at 1.) The records surrounding the execution of the warrant, particularly

of Defendant’s interview during that search, are sparse. Accordingly, this Court heard oral

testimony from federal agent Joseph Zajac and Defendant Njokem on November 21, 2022,

to develop the factual record. (ECF No. 58.) 1 Consequently, the Court recorded the following

facts surrounding the February 4, 2021, execution of a search warrant. 2

        At approximately 7:48am on February 4, 2021, nine federal agents and a City of

Hyattsville police officer knocked on Njokem’s apartment door and announced themselves

with their guns drawn and fingers off the triggers. The Defendant answered the door and

appeared “slightly confused.” Defendant Njokem testified that upon answering the door, all

of the agents’ guns were pointed at him and two of the agents took off his coat and put him

on the floor to handcuff him behind his back. The agents then pulled him off the ground and

placed him against a wall at the entrance of the apartment while the remaining agents did a

protective sweep of the one-bedroom unit. Agent Zajac testified that this sweep lasted five

minutes long, and Njokem was then placed on the couch.

        Njokem testified that during the search, one of the agents told him that they would

make it easier for him to go about his business if he answered their questions. At some point

shortly after that statement, Defendant’s handcuffs were removed. The Defendant asked to

use the bathroom, and the agents allowed him to do so once they conducted a thorough search

of the bathroom. An agent was with Njokem at all times. After using the bathroom, the



1 When referencing the testimony herein, the Court is unable to cite to the transcript of the motions proceedings

because it is not yet available. Thus, to expedite the issuance of this opinion, the Court recites the witnesses'
testimony based on its own detailed account of the hearing.
2 By previous Memorandum Order, this Court deemed the search warrant was predicated on sufficient probable

cause. (ECF No. 62.) Consequently, the validity of the underlying warrant is not at issue here.

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Defendant returned to the couch. Agent Zajac then approached the Defendant and introduced

himself. Agent Zajac testified that upon inquiry by Njokem, he told him that if he wanted to

leave the apartment he could, but that he could not return to the apartment until the search

warrant was fully executed – in other words, the Defendant had to either stay in the apartment

or leave altogether, he could not come and go until the search was complete. Agent Zajac

testified that the Defendant stayed in the apartment and “expressed willingness to interview.”

Njokem testified that he felt threatened by the number of agents in his one-bedroom

apartment and that he wanted to cooperate because he was scared and did not want harm or

to go to jail. The Defendant stated that he did not feel like he had a choice in deciding to

answer the agents’ questions.

         Because the agents were still executing the search warrant, Agent Zajac and another

federal agent accompanied the Defendant to his bedroom because the area was quiet and

secluded from the search. Njokem sat on the bed and the two federal agents remained standing

as there was no other seating available in the bedroom. The bedroom door was cracked, and

the agents were masked because of the COVID-19 pandemic. The agents’ weapons were

visible in holsters affixed to the agents’ bodies. The Defendant was not read his Miranda rights

and was not told that he could stop the interview at any time. 3

         Agent Zajac recorded the interview on an audio recorder and began the interview by

thanking the Defendant for his cooperation and stating that the interview was voluntary. The

Defendant did not state or acknowledge that the interview was voluntary on his part. Agent

Zajac maintained an even speaking tone. At some point during the interview, Agent Zajac


3 See Miranda cited infra p. 5.


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showed Njokem’s bank records as an indication of Njokem’s guilt. Partially through the

interview, the Defendant asked the agents for their business cards so that he could contact

them at a later date. Throughout the duration of the interview, the Defendant disclosed details

about his internet usage and computer password, his emails, and he consented to a search of

his vehicle. Upon completion of the interview, the Njokem asked the agents executing the

search warrant if he could smoke a cigarette and he was told again that he could not leave and

return to the premises until the search concluded.

       Njokem has filed a Motion to Suppress (ECF No. 37) which seeks to exclude “all

statements made by him on February 4, 2021, and all evidence obtained as a result of these

statements.” (ECF No. 37 at 2.) Njokem argues that he was not read his Miranda rights despite

being held and interviewed in custody, and therefore his statements and the evidence obtained

as a result of those statements “must also be suppressed as fruit of the poisonous tree.” Id. In

support, the Defendant analogizes the facts of this scenario to those this Court emphasized as

pertinent in suppressing evidence in United States v. Martin, No. CR RDB-17-0069, 2018 WL

6606232, at *7 (D. Md. Dec. 17, 2018). The Government retorts that the Defendant agreed to

a voluntary interview, thereby negating any custodial arguments. (ECF No. 41 at 2.)

                                          ANALYSIS

       “The controlling burden of proof at suppression hearings should impose no greater

burden than proof by a preponderance of the evidence.” United States v. Matlock, 415 U.S. 164,

177-178 n.14 (1974) (burden of proof for voluntariness of consent to search is by

preponderance of the evidence); see also, e.g., Colorado v. Connelly, 479 U.S. 157, 168-169 (1986)

(preponderance of the evidence burden regarding waiver of Miranda rights); Nix v. Williams,


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467 U.S. 431, 444-45 n.5 (1984) (preponderance of the evidence burden regarding inevitable

discovery of evidence obtained by unlawful means); Lego v. Twomey, 404 U.S. 477, 489 (1972)

(preponderance of the evidence burden regarding voluntariness of confession). 4

        The Fifth Amendment privilege against self-incrimination provides that “[n]o person

... shall be compelled in any criminal case to be a witness against himself.” U.S. Const., amend.

V. In Miranda v. Arizona, the Supreme Court established “procedural safeguards effective to

secure the privilege against self-incrimination” as ensured by the Fifth Amendment when a

defendant is subject to custodial interrogation. 384 U.S. 436, 444 (1966); see also Dickerson v.

United States, 530 U.S. 428, 444 (2000) (reaffirming Miranda as “a constitutional rule.”). “Before

conducting a custodial interrogation of a suspect, law enforcement officials must inform the

suspect that he has the right to remain silent, that his statements may be used against him at

trial, and that he has the right to an attorney during questioning.” United States v. Wilder, 304 F.

Supp. 3d 464, 469 (D. Md. 2018).

        The test for determining whether an individual is “in custody” for Miranda purposes is

whether, under the totality of the circumstances, the “suspect's freedom of action is curtailed

to a degree associated with formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 440 (1984)

(internal quotations omitted); see also United States v. Parker, 262 F.3d 415, 419 (4th Cir. 2001).



4 The Government’s Opposition avers that the burden of proof rests on “the party who seeks to suppress the

evidence.” (ECF No. 41 at 3.) In support, the Government cites to United States v. Pollins, 145 F. Supp. 3d 525,
538 (D. Md. 2015). In Pollins, Judge Quarles of this Court applied that burden of proof in ruling on evidence
from an illegal search under the Fourth Amendment. As the Defendant appropriately highlights, the instant
motion is distinguishable as it addresses the Defendant’s Fifth Amendment privileges as explained in Miranda
v. Arizona, 384 U.S. 436, 444 (1966). Therefore, the Government’s proposed burden of proof is presently
inapplicable. As in Martin, this Court need not determine which party carries the burden because “the totality
of the circumstances demonstrates that the Defendant was in custody at the time of the interrogation.” United
States v. Martin, No. CR RDB-17-0069, 2018 WL 6606232, at *8 n.13 (D. Md. Dec. 17, 2018).

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This inquiry is an objective one, and asks whether “a reasonable man in the suspect's position

would have understood his position” as being “in custody.” Berkemer, 468 U.S. at 422. In other

words, “the court considers whether a reasonable person [would] have felt he or she was not

at liberty to terminate the interrogation and leave.” United States v. Hashime, 734 F.3d 278, 282–

83 (4th Cir. 2013) (internal quotation marks and citations omitted).

       “Facts relevant to the custodial inquiry include, but are not limited to, the time, place

and purpose of the encounter, the words used by the officer, the officer's tone of voice and

general demeanor, the presence of multiple officers, the potential display of a weapon by an

officer, and whether there was any physical contact between the officer and the defendant.”

Hashime, 734 F.3d at 283 (internal quotation marks and citations omitted); see also United States

v. Colonna, 511 F.3d 431, 436 (4th Cir. 2007) (finding “coercive pressures” where house is

“inundated” with agents, defendant guarded by an agent at all times, and defendant and

occupants unable leave and reenter home). Although an encounter in the home may typically

weigh against a custodial interview, where the police presence is so obvious and controlling,

an interview in the home may be considered custodial. See Hashime, 734 F.3d at 284 (rejecting

the argument that the home setting of the defendant's interrogation rendered it noncustodial

where the defendant felt that he could not freely move through his house because there were

officers “everywhere” telling him what to do, where to go, and where not to go); see also United

States v. Mittel-Carey, 493 F.3d 36, 39–40 (1st Cir. 2007) (“While an interrogation in a

defendant's residence, without more, certainly weighs against a finding of custody, ... the level

of physical control the agents exercised ... weighs heavily in the opposite direction.”); Sprosty

v. Buchler, 79 F.3d 635, 641 (7th Cir. 1996) (“More important than the familiarity of the


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surroundings where [the defendant] was being held is the degree to which the police

dominated the scene.”)

       In United States v. Martin, this Court found that a defendant was in custody where the

“facts demonstrate[d] that a reasonable person in the Defendant's position would have

perceived a police dominated atmosphere before and during the interrogation.” No. CR RDB-

17-0069, 2018 WL 6606232, at *7 (D. Md. Dec. 17, 2018). There, this Court emphasized that

the defendant was approached by SWAT agents with drawn guns, that other federal and state

enforcement officers were present on the scene, that the defendant was handcuffed and placed

on the ground, that the defendant was interrogated by three agents for four hours, confronted

with incriminating evidence discovered on his property, and that the defendant was isolated

from his partner during the interrogation. Id. This Court also noted that although the agents

notified the defendant that “he was not under arrest, was free to leave, and that his

participation was voluntary did not render his interrogation noncustodial.” Id.

       Under the totality of the circumstances in this case, Njokem’s freedom of action was

curtailed “to a degree associated with formal arrest” and he was thus in “in custody” for

Miranda purposes. Berkemer, 468 U.S. at 422. Nine federal agents and one local police officer

knocked on the Defendant’s door before 8:00am with their guns drawn and pointed at the

Defendant. The Defendant was then immediately searched, put on the floor, and put in

handcuffs as those ten agents “inundated” his one-bedroom apartment. Colonna, 511 F.3d at

435 (defendant’s “home was inundated with” officers during execution of search warrant).

Njokem was unable to leave, and his every move was accompanied by an agent. The

Defendant was made powerless, placed on his couch in handcuffs while the agents executed


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their search. The Defendant had to be given permission to use the restroom and was closely

monitored when he did so.

       At some point while the Defendant was handcuffed, an agent told the Defendant that

things would be easier for him if he answered questions and cooperated with the agents. The

Defendant’s handcuffs were removed thereafter just prior to the interview. At the time of the

interview, the two interviewing agents remained standing while the Defendant sat. Although

not dispositive, this arrangement made for another visible power dynamic. The eight

remaining agents continued to search the Defendant’s apartment while the interview was

ongoing. A reasonable man in Njokem’s position would have felt the “police dominated

atmosphere before and during the interrogation.” Martin, 2018 WL 6606232, at *7.

Additionally, similar to the circumstances in Martin, Njokem was presented with incriminating

evidence during the interrogation “which may certainly cause a reasonable person to feel

compelled to cooperate with the police.” Id.

       The Government argues that because the interview took place during “normal daytime

hours” within the Defendant’s home, the agent spoke in a measured tone, and the interview

only lasted for an hour, the interview was non-custodial. (ECF No. 41 at 5.) However, these

circumstances cannot be viewed in a vacuum. Instead, this Court views the totality of the

circumstances and finds that the Defendant was not, nor would a reasonable person have felt,

free to leave the interrogation or his home. Despite being told the interview was voluntary,

the Defendant himself never indicated that he was participating voluntarily, and even

attempted to curtail the interrogation short when he asked for the agents’ business cards

perhaps so that he could provide information at a later time. Ultimately, considering the totality


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of the circumstances, the Defendant was in “custody” during the interrogation, and he

therefore should have been given his Miranda rights. Because the agents did not read the

Defendant his Miranda rights before the custodial interrogation, Njokem’s statements made in

that interview, and evidence that flowed from those statements, are inadmissible at trial.

                                      CONCLUSION

       Accordingly, IT IS, this 29th day of November, 2022, hereby ORDERED that

Defendant’s Motion to Suppress Statements (ECF No. 37) is GRANTED.




                                                          ________/s/___________
                                                          Richard D. Bennett
                                                          United States District Judge




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