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Affidavit Sworn May 3'"', 2016 (The "Durand Affidavit")
Affidavit Sworn May 3'"', 2016 (The "Durand Affidavit")
Affidavit Sworn May 3'"', 2016 (The "Durand Affidavit")
JACQUES DURAND
Defendant
X
support of his pretrial motions pursuant to the Fifth Amendment to the United States
Constitution and Federal Rule of Criminal Procedure 12, to suppress statements which
were allegedly made by Mr. Durand. In support of his motion,the Defendant relies on his
The statements which Mr. Durand seeks to suppress are described in a letter from
the Government dated December 7'*', 2015 (Exhibit"A"hereto) which states as follows:
For the reasons set out below,these alleged statements should be suppressed.
Case 1:15-cr-00531-ILG Document 30-2 Filed 05/09/16 Page 2 of 12 PageID #: 73
A. Legal Standard
in any criminal case to be a witness against himself[.]" U.S. CONST., Amend. V. The
purpose of the Fifth Amendment has been interpreted to ensure that "a confession be
voluntary to be admitted into evidence." Dickerson v. United States. 530 U.S. 428(2000).
the defendant unless it demonstrates the use of procedural safeguards effective to secure
the privilege against self-incrimination." Among those safeguards is the requirement that
the defendant be warned, prior to interrogation; that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the right to the
presence of an attomey, and that if he cannot afford an attorney one will be appointed for
him prior to any questioning ifhe so desires. Id. at 479; see also Rhode Island v. Innis.446
blurs the line between voluntary and involuntary statements." United States v. Martinez.
916 F. Supp.2d 334, 347(E.D.N.Y. 2013)."To prevent such coercion and to safeguard a
suspect with Miranda warnings prior to conducting a custodial interrogation." Id. Miranda
operates to "ensure that the person in custody has sufficient knowledge of his or her
constitutional rights ... and that any waiver of such rights is knowing, intelligent and
voluntary." Id. See also United States v. Carter. 489 F.3d 528, 534(2d Cir. 2007). Stated
evidence that the suspect waived his Miranda rights and that his statement was 'truly the
product of free choice.'" Martinez. 916 F. Supp.2d at 347 (citing United States v.
These Miranda safeguards come into play whenever(i) a person is in custody; and
(ii) the person is subjected to either "express questioning or its functional equivalent."
Rhode Island v. Innis. 446 U.S. 291, 301 (1980). The term 'interrogation' refers not only
to express questioning, but also to any word or actions on the part of the police "that the
police should know are reasonably likely to elicit an incriminating response from the
suspect." Id. "Without obtaining a waiver of the suspect's Miranda rights, the police may
not ask questions, even during booking, that are designed to elicit incriminatory
The Second Circuit has provided a two pronged test to determine whether custodial
interrogation has occurred: custodial interrogation exists when a law enforcement official
questions an individual and that questioning was (i) conducted in custodial settings that
have inherently coercive pressures that tend to imdermine the individual's will to resist and
to compel him to speak(the in custody requirement); and (ii) when the inquiry is conducted
by officers who are aware ofthe potentially incriminatory nature ofthe disclosures sought
(the investigative intent requirement). United States v. Morales. 834 F.2d 35, 38 (2d
Cir.1987).
that routine booking questions are not considered interrogations and therefore do not
require Miranda warning. Justice Brennan, writing for a plurality offour justices, held that
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routine booking questions were reasonably related to police record keeping needs and
therefore unrelated to Miranda's concerns. See Id, at 601-02. The plurality cautioned,
however, that police may not ask questions designed to elicit incriminating admissions at
the booking stage without giving Miranda warnings. See Id. at 602 n.l4.
The analytical firamework set forth in Rosa v. McCrav requires the court to ask two
questions: (i) whether the questions were asked during a non-investigative booking
process? And,(ii) whether the questions were designed to elicit incriminatory admissions?
Id. 221. When the latter question is answered in the affirmative, courts have found the
exception inapplicable. See, e.g.. United States v. Scott. 270 F.Sd 30, 44 (1st Cir. 2001)
(questions about age and residence not within routine booking exception because officer
Moreno. 265 F.Sd 276, 280 (5th Cir. 2001) (questioning defendant incessantly about
residence after defendant twice denied living at particular address not within routine
booking exception); United States v. Pacheco-Lopez. 531 F.Sd 420, 424 (6th Cir. 2008)
(questions about where defendant was fi:om and how and when he arrived at house not
response and responses not documented); United States v. Henlev. 984 F.2d 1040, 1042-
43 (9th Cir. 1993)(questions about whether suspect owned vehicle not within routine
booking exception because officer had reason to believe vehicle involved in illegal
activity).
B. Application
Here, Jacques Durand's alleged statement to Government agents on Jime 9'*', 2015,
should be suppressed, because the statements were given while in custody and in response
to un-Mirandized and admission-seeking questions. There is no doubt that Mr. Durand was
in custody when he gave the alleged statements and it was "reasonable" for him to believe
he was under arrest as he was handcuffed and at a police precinct. See Durand Affidavit at
para. 2. See generally United States v. Newton. 369 F.3d 659, 672 (2d Cir. 2004)
Second, without offering Miranda warnings, agents asked Mr. Durand for his
succeeded, given that the Government now intends to use Mr. Durand's response at trial.
It is important to note as well, that the agent called the number provided by Mr. Durand
almost immediately after Mr. Durand gave it to him, something which is not usual, and
which confirms that the number was ofcritical importance to the investigation. See Durand
Affidavit at para. 2. Moreover, the agents seemingly knew that the first number given by
Mr. Durand was false and continued to prod him for a second number. See Exhibit "A"
("the defendant provided a false telephone number... [i]n response to further pedigree
questioning, the defendant provided another telephone number..." These questions were
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not merely general or impromptu in nature; they were specifically geared toward
developing or strengthening the Government's case against Mr. Durand. Mr. Durand's
answers were directly related to those questions, as provided in his affidavit. Importantly,
and as detailed in Mr. Durand's affidavit, "As soon as [he] provided agents with this
telephone number, one of the agents called the number and the phone started ringing. At
no point prior to giving law enforcement agents [his] number was [he] read [his] Miranda
rights, nor were they even paraphrased." Affidavit of Jacques Durand, at para. 2.
this issue. There,an imprisoned suspect was in a state detention facility when he was picked
no point during the car-ride, or prior thereto, was the defendant advised of his Miranda
rights, but he was nevertheless asked questions to which he gave incriminating responses.
In deciding whether to suppress the statements, the court admitted mere bookkeeping
The same principles apply here. Mr. Durand was handcuffed and at the precinct
with government agents when he gave incriminating responses to questions from the
Case 1:15-cr-00531-ILG Document 30-2 Filed 05/09/16 Page 7 of 12 PageID #: 78
agents. In both cases, no Miranda warnings were issued and his responses must be
In the event the Court cannot suppress the statements based on moving papers, Mr.
Durand requests an evidentiary hearing to allow the Court to evaluate any disputes offact.
WHEREFORE the defendant, Mr. Durand, respectfully requests that his statements
be suppressed given that they were improperly elicited in violation of his constitutional
rights.
Jeff Greco
Greco Neyland,PC
535 Fifth Avenue, Fl. 25
New York, New York 10017
Tel: 212-951-1300
jeff@gnlaw.nye
Case 1:15-cr-00531-ILG Document 30-2 Filed 05/09/16 Page 8 of 12 PageID #: 79
EXHIBIT "A"
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Case l:15-cr-00531-ILG Document 15 Filed 12/07/15 Page 1 of 4 PagelD #: 37
December 7,2015
Records reflecting the defendant's criminal history are enclosed, bearing the
Bates numbers JDOOOOOl through JD000075.
Toll records from T-Mobile obtained by Nassau Coimty law enforcement, JD000017-
pursuant to subpoena, associated with the defendant's(718)559-9768 JD000020
wireless telephone number
JD000051-
JD000059
Please note that certain ofthese records, such as the cell site records, are in
Microsoft Excel format and reflect nixmerous data entries. To facilitate review ofthese types
of documents the government has provided two copies: a "locked" or read-only format; and
an "unlocked" or sortable format.
You may examine the physical evidence discoverable under Rule 16,
including original documents, by calling me to arrange a mutually convenient time.
D. Reports ofExaminations and Tests
The government will provide you with copies of any reports of examinations
or tests in this case as they become available.
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E. Expert Witnesses
The government will comply with Fed. R. Grim. P. 16(a)(1)(G) and Fed. R.
Evid. 702, 703 and 705 and notify you in a timely fashion ofany expert that the government
intends to call at trial and provide you with a summary ofthe expert's opinion.
The identity, qualifications, and bases for the conclusions of each expert will
be provided to you when they become available.
F. Bradv Material
The government will provide the defendant with reasonable notice in advance
oftrial if it intends to offer any material imder Fed. R. Evid. 404(b).
The government hereby requests reciprocal discovery imder Rule 16(b) ofthe
Federal Rules of Criminal Procedure. The government requests that the defendant allow
inspection and copying of(1)any books, papers, documents, data, photographs, tapes,
tangible objects, or copies or portions thereof, that are in the defendant's possession, custody
or control, and that the defendant intends to introduce as evidence or otherwise rely on at
trial, and(2)any results or reports of physical or mental examinations and ofscientific tests
or experiments made in connection with this case, or copies thereof, that are in the
defendant's possession, custody or control, and that the defendant intends to introduce as
evidence or otherwise rely upon at trial, or that were prepared by a witness whom the
defendant intends to call at trial.
The government also requests that the defendant disclose prior statements of
witnesses who will be called by the defendant to testify. See Fed. R. Crim. P. 26.2. In order
to avoid imnecessary delays,the government requests that the defendant have copies ofthose
statements available for production to the government no later than the commencement of
trial.
The government also requests that the defendant disclose a written summary
oftestimony that the defendant intends to use as evidence at trial vmder Rules 702,703, and
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705 ofthe Federal Rules ofEvidence. The summary should describe the opinions ofthe
witnesses,the bases and reasons for the opinions, and the qualification ofthe witnesses.
Pursuant to Fed. R. Grim. P. 12.3, the government hereby demands written
notice ofthe defendant's intention, if any,to claim a defense of actual or believed exercise of
public authority, and also demands the names and addresses ofthe witnesses upon whom the
defendant intends to rely in establishing the defense identified in any such notice.
III. Future Discussions
ROBERT L. CAPERS
United States Attorney
Enclosures