Motion to Suppress/Preclude Statements — United States v. Bowens, No. 6:21-cr-00141 (Middle District of Florida)

Summary

Document 44, filed May 5, 2022 in Case No. 6:21-cr-00141-RBD-EJK in the U.S. District Court for the Middle District of Florida, Orlando Division, is Defendant Emmet Bowens' Motion to Suppress/Preclude Statements. It seeks to suppress statements allegedly made to a U.S. Customs and Border Protection officer and an FBI agent on December 1, 2022 under the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966). Its facts say he was arrested at the Atlanta Hartsfield International Airport after returning from an international trip, and that the FBI 302 report does not indicate Miranda warnings. In the alternative it argues the statements about a trip to Rwanda are irrelevant under Fed. R. Evid. 401, 402 and 403, because the case concerns whether he submitted a fraudulent Paycheck Protection Program loan application.

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“Motion to Suppress/Preclude Statements — United States v. Bowens, No. 6:21-cr-00141 (Middle District of Florida).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-flmd-396523-44-0-9512e5a8a0/, SHA-256 e68eb217ff0e513ddfb59ff882170f000e5a3b0c1a0f4588c021629cbaa6b210.

Full text

Case 6:21-cr-00141-RBD-NWH Document 44 Filed 05/05/22 Page 1 of 10 PageID 105

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Case No. 6:21−cr−00141−RBD−EJK
)
EMMET BOWENS, )
)
Defendant. )
)

DEFENDANT EMMET BOWENS’
MOTION TO SUPPRESS/PRECLUDE STATEMENTS

The Defendant, Emmet Bowens (“Mr. Bowens”), by and through the

undersigned counsel, hereby moves to suppress statements allegedly made to a

U.S. Customs and Border Protection (“CBP”) officer and a Federal Bureau of

Investigation (“FBI”) agent on December 1, 2022, as said statements were obtained

in violation of the Fifth Amendment of the United States Constitution and Miranda

v. Arizona, 384 U.S. 436 (1966). In the alternative, Mr. Bowens seeks to preclude

the introduction of the statements he allegedly made on December 1, 2022 under

the Federal Rules of Evidence. In support thereof, Mr. Bowens states as follows:
Case 6:21-cr-00141-RBD-NWH Document 44 Filed 05/05/22 Page 2 of 10 PageID 106

STATEMENT OF FACTS

Relevant Procedural History

1. On November 10, 2021, a federal grand jury in the Middle District of

Florida returned an indictment charging Mr. Bowens with two counts of wire

fraud, in violation of 18 U.S.C. § 1343 (Counts One and Two), and four counts of

money laundering, in violation of 18 U.S.C. § 1957 (Counts Three through Six).

Doc. 1.

2. On November 12, 2021, the Court issued a warrant authorizing Mr.

Bowens’ arrest in connection with this case. Doc. 9.

The December 1, 2021 Airport Arrest

3. On December 1, 2021, Mr. Bowens was arrested in this case. The

details concerning Mr. Bowens’ arrest are memorialized in an FBI 302 report which

the government provided to Mr. Bowens as part of the government’s discovery

production in this case. A copy of this FBI 302 report is attached hereto as Exhibit

A. According to the FBI 302 report, Mr. Bowens was arrested at the Atlanta

Hartsfield International Airport after returning to the United States from an

international trip. Exhibit A. He was held by CBP officers and then turned over to

FBI agents. Id. The report further alleges that at some point before Mr. Bowens

was transferred from CBP custody to FBI custody, he made statements to a CBP

officer that he was “from Mississippi and that he was coming back from Rwanda

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Case 6:21-cr-00141-RBD-NWH Document 44 Filed 05/05/22 Page 3 of 10 PageID 107

and was looking to start a business in Rwanda.” Id. The report further states that

after he was transferred to FBI custody, Mr. Bowens told an FBI agent that he was

“visiting a friend in Rwanda,” and that this friend “has a business than [sic] have

been a restaurant.” Id. The FBI 302 report does not indicate that Mr. Bowens was

administered his Miranda warnings prior to making the foregoing statements. Mr.

Bowens further asserts that he was not given Miranda warnings at any point after

he was taken into custody by the CBP at the airport.

4. Based on the foregoing, Mr. Bowens hereby moves to suppress any

and all statements allegedly made by him to law enforcement officials on

December 1, 2022, as detailed in the FBI 302 report attached hereto as Exhibit A.

These statements were allegedly made by Mr. Bowens without him having been

advised of his rights under the Fifth Amendment to the U.S. Constitution and

Miranda. Therefore, the Court must suppress all such statements. In the

alternative, the Court should preclude the admission of the alleged statements

made by Mr. Bowens as such statements are irrelevant to the material issues in

dispute in this case, and because the “probative value” of such statements are

“substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay. . . .” See Fed.

R. Evid. 401, 402, 403.

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Case 6:21-cr-00141-RBD-NWH Document 44 Filed 05/05/22 Page 4 of 10 PageID 108

MEMORANDUM OF LAW

Legal Standards

As this Court is well-aware, Miranda safeguards are triggered “whenever a

person in custody is subjected to either express questioning or its functional

equivalent.” Rhode Island v. Innis, 446 U.S. 291 (1980). Custody for purposes of

Miranda encompasses not only formal arrest, but any restraint on freedom of

movement of the degree associated with formal arrest. United States v. Brown, 441

F.3d 1330, 1347 (11th Cir. 2006) (citing California v. Beheler, 463 U.S. 1121, 1125

(1983)). Whether a defendant is “in custody” for Miranda purposes “depends on

whether under the totality of the circumstances, a reasonable man in his position

would feel a restraint on his freedom of movement to such extent that he would

not feel free to leave.” United States v. McDowell, 250 F.3d 1354, 1362 (11th Cir.

2001) (quotation marks and alterations omitted). This is an objective test; the

actual, subjective beliefs of the defendant and the interviewing officer regarding

whether the defendant was free to leave are irrelevant. United States v. Moya, 74

F.3d 1117, 1119 (11th Cir. 1996). “The right to Miranda warnings attaches when

custodial interrogation begins.” United States v. Crews, No. 3:13-cr-230-J-34MCR,

2014 WL 5690448, at *5 (M.D. Fla. Nov. 4, 2014) (citing United States v. Acosta, 363

F.3d 1141, 1148 (11th Cir. 2004)).

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Case 6:21-cr-00141-RBD-NWH Document 44 Filed 05/05/22 Page 5 of 10 PageID 109

“[A]lmost any information obtained from a suspect, however innocuous it

appears on its face, may prove to be incriminating ...” United States ex rel. Hines v.

LaVallee, 521 F.2d 1109, 1112 (2d Cir. 1975). The Supreme Court has cautioned that

the “interrogation environment” is not to be construed so narrowly as to defeat

Miranda's purpose: various “techniques of persuasion, no less than express

questioning” can amount to interrogation. Innis, 446 U.S. at 299 (internal citation

omitted). “Interrogation therefore includes engagement short of a formal

interview.” United States v. Familetti, 878 F.3d 58 (2d Cir. 2017).

The Eleventh Circuit has stated that certain “events which might be enough

often to signal ‘custody’ away from the border will not be enough to establish

‘custody’ in the context of entry into the country.” United States v. Moya, 74 F.3d

1117, 1120 (11th Cir. 1996). However, interrogations at the border that rise to a

“distinctly accusatory level” can still constitute a custodial interrogation that

require the administration of Miranda warnings. Id. at 1120. Factors that must be

considered by the Court to determine under what circumstances border

interrogation rise to an accusatory level include whether the suspect was:

physically moved or restrained by officers during the interview, handcuffed or

had guns drawn on him, booked or told of formal accusations, or told that he was

under arrest. See Moya, 74 F.3d at 1119; see also McDowell, 250 F.3d at 1362.

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Case 6:21-cr-00141-RBD-NWH Document 44 Filed 05/05/22 Page 6 of 10 PageID 110

Mr. Bowens Was In Custody At the Time He Made the Statements

It appears from the FBI 302 report attached hereto, that Mr. Bowens was

arrested pursuant to a federal arrest warrant after his re-entry to the United States

at the Atlanta international airport on December 1, 2021. Exhibit A. Under these

circumstances, a reasonable man would feel a restraint on his freedom of

movement to such extent that he would not feel free to leave. Thus, Mr. Bowens

asserts that he was in-custody at the time he made the statements described in the

report.

Mr. Bowens Was Subjected to Custodial Interrogation

The FBI 302 report further suggests that Mr. Bowens made statements in

response to questioning by a CBP officer, and subsequent statements in response

to questioning by an FBI agent. Exhibit A. Mr. Bowens asserts that he was in-

custody when he was subjected to this questioning and not given his Miranda

warnings. Mr. Bowens further asserts that the CBP officer’s questioning of him

took place under a “distinctly accusatory” setting. Specifically, Mr. Bowens was

detained and arrested in connection with a federal indictment and warrant.

Moreover, the FBI 302 report indicates that Mr. Bowens was “transferred” from

one federal law enforcement agency to another. Presumably, Mr. Bowens’

statements to the FBI agent were made away from the airport re-entry point and

therefore not subject to the Moya “distinctly accusatory” standard, which is

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Case 6:21-cr-00141-RBD-NWH Document 44 Filed 05/05/22 Page 7 of 10 PageID 111

reserved only for events that occur at the border. Based on the foregoing, Mr.

Bowens moves to suppress the statements he allegedly made to law enforcement

on the date of his arrest. At a minimum, this Court should conduct a hearing to

determine whether the statements Mr. Bowens made were in violation of his Fifth

Amendment rights and his rights under Miranda.

Mr. Bowens Statements Are Inadmissible Under The Federal Rules of Evidence

A defendant’s statements not requiring suppression are admissible only if

they are relevant—that is, if they constitute evidence tending to make the existence

of any fact that is of consequence to the determination of the action more or less

probable than it would be without the evidence. See Fed. R. Evid. 401, 402. Rule

402 requires the exclusion of irrelevant evidence in order to ensure a fair and

efficient adjudication. Fed. R. Evid. 402. Evidence may also be excluded if “its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.

Evid. 403.

Here, Mr. Bowens statements concerning his trip to Rwanda and his plan to

start a business there are irrelevant under Rules 401 and 402 of the Federal Rules

of Evidence. These statements do not tend to prove up any fact that is of

consequence in this case, which has to do with whether or not Mr. Bowens

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Case 6:21-cr-00141-RBD-NWH Document 44 Filed 05/05/22 Page 8 of 10 PageID 112

submitted a fraudulent Paycheck Protection Program loan application. Moreover,

what little “probative value” these statements have is “substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury .

. . . .” See Fed. R. Evid. 403. Accordingly, even if this Court finds that Mr. Bowens

statements to law enforcement should not be suppressed, the Court should still

preclude the introduction of the statements under the Federal Rules of Evidence.

CERTIFICATION OF CONFERRING WITH OPPOSING COUNSEL

Pursuant to the Court’s Criminal Scheduling Order (Doc. 16), the

undersigned certifies: (1) that the undersigned counsel conferred with opposing

counsel; (2) that counsel have been unable to resolve the instant motion by

agreement; and (3) that the motion concerns matters not covered by the scheduling

order.

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CONCLUSION

WHEREFORE, the Defendant, Emmet Bowens, moves this Honorable Court

to enter an Order: (a) suppressing the statements he made to a U.S. Customs and

Border Protection (“CBP”) officer and a Federal Bureau of Investigation (“FBI”)

agent on December 1, 2022, as said statements were obtained in violation of the

Fifth Amendment of the United States Constitution and Miranda, or, in the

alternative, precluding the government from introducing these statements,

pursuant to Fed. R. Evid. 401, 402, and 403.

Respectfully submitted on this 5th day of May, 2022.

s/Andrew C. Searle
ANDREW C. SEARLE, ESQ.
Florida Bar No. 0116461
SEARLE LAW P.A.
200 East Robinson Street, Suite 1150
Orlando, Florida 32801
Telephone: 407-203-3715
Email: andrew@searle-law.com
Attorney for Defendant

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY on May 5, 2022, I filed a copy of the foregoing with the Clerk

of the Court via the CM/ECF system. I further certify that all parties to this case are

equipped to receive service of documents via that system.

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