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January 17, 1980


The opinion of the court was delivered by: PLATT


Defendant, Dinesh K. Chawla, has been charged in a two-count indictment filed October 9, 1979, with attempting to import into the United States approximately 21/2 kilograms of heroin, a Schedule I narcotic controlled substance, in violation of 21 U.S.C. §§ 952(a), 960, and 963, and with attempting to possess with intent to distribute the same, in violation of 21 U.S.C. §§ 841(a)(1) and 963. *fn1"

 On October 30, 1979, defendant's counsel served and filed a motion seeking (i) to dismiss the indictment on the ground that the evidence presented to the grand jury was insufficient as a matter of law to sustain the indictment, and (ii) to suppress written and oral statements (and physical evidence flowing therefrom) made by the defendant immediately prior to his arrest and between his arrest and his arraignment. In a separate motion filed the same day, defendant also seeks to dismiss the indictment on the basis of alleged prosecutorial misconduct occurring in the office of Assistant United States Attorney David Kirby on October 24, 1979.



 The Court held a hearing on November 7, 8, and 9, 1979. The facts developed at the hearing are as follows:

 Early in the afternoon of September 30, 1979, Special Agent Gerard Whitmore of the Drug Enforcement Administration ("DEA") *fn2" received a communication from the London office of the DEA to the effect that Her Majesty's Customs had just seized a piece of luggage found to contain a white powdery substance which had field-tested positive for heroin (Tr. 24-25). *fn3" Mr. Whitmore was also informed that the luggage bore British Airways baggage claim checks with the numbers 277372 and 277373 (Tr. 26), and that the airline computer had shown the owner to be the defendant Dinesh Chawla, who was holding a reservation on a Trans World Airlines flight into New York's Kennedy Airport (Tr. 26).

 As a result of this communication, Mr. Whitmore proceeded to the TWA international arrivals area at Kennedy Airport and instructed customs officials to locate and detain Mr. Chawla so Mr. Whitmore could interview him (Tr. 27, 79-80). Mr. Chawla was not aboard the TWA flight, however, and after a second conversation with the London DEA office, Mr. Whitmore learned that he would be arriving on a later British Airways flight (Tr. 27, 80). Mr. Whitmore then placed customs and immigration alerts throughout the airport for Mr. Chawla's arrival from London (Tr. 27).

 A short time later, Mr. Whitmore was advised by United States customs agents that Mr. Chawla had arrived and was being held for a customs inspection, and would continue to be so held until Mr. Whitmore arrived (Tr. 30-21). Mr. Whitmore proceeded to the British Airways customs inspection point and, while Mr. Chawla's inspection was being completed, called a British customs official in London by the name of Mr. Tunstall to inform him that Mr. Chawla had been located at Kennedy Airport. At the same time, Mr. Whitmore confirmed with Mr. Tunstall the baggage claim check numbers he had been given earlier (Tr. 31). Shortly thereafter, Mr. Whitmore was advised by Customs Inspector Sykes that they were finished with Mr. Chawla. Mr. Whitmore entered the room in which Mr. Chawla was being held (Tr. 31). In the secondary customs inspection room with Mr. Chawla were two customs inspectors and Special Agent James A. Williams of the DEA *fn4" who entered with Mr. Whitmore; Mr. Chawla was seated about twelve feet from the only door to the room (Tr. 81-82).

 Upon entering the room, Mr. Whitmore identified himself and Williams as DEA agents and asked only for Mr. Chawla's identification and airline ticket (Tr. 32, 82-83). Before Mr. Chawla responded, one of the customs inspectors handed to Mr. Whitmore Mr. Chawla's passport and certain papers relating to Mr. Chawla's customs inspection. *fn5" These papers confirmed the identity of Mr. Chawla (Tr. 83). Mr. Chawla himself then gave Mr. Whitmore his airline tickets, to which two baggage claim stubs were attached (Tr. 33, 83, 201). It should be noted that Mr. Whitmore did not ask for these baggage claim stubs but on receipt of same asked whether they belonged to Mr. Chawla who replied in the affirmative (Tr. 83). Mr. Whitmore then asked Mr. Chawla where his luggage was. Mr. Chawla responded that he had become separated from his luggage and that it would be arriving on a later flight. Mr. Whitmore asked whether the baggage stubs attached to his ticket were for the luggage from which he was now separated. Mr. Chawla stated that they were (Tr. 34, 83). Mr. Whitmore at some point in or at the end of these questions left the room and spoke again with British customs officer Tunstall who had been holding open the telephone line to London during the foregoing to confirm that the numbers on Mr. Chawla's baggage claim stubs matched those given to him earlier by the London DEA office and by Mr. Tunstall as the numbers on the pieces of luggage seized at Heathro Airport and found to contain heroin (Tr. 33, 83-84).

 After his return, Mr. Whitmore advised Mr. Chawla that he was under arrest for violation of federal narcotics laws (Tr. 34, 84). Mr. Chawla started to make a verbal protest, but Mr. Whitmore stopped him and advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (Tr. 42). Mr. Whitmore read those rights from a card in his possession, stopping frequently to ask if Mr. Chawla understood his rights. When Mr. Chawla responded by nodding affirmatively, Mr. Whitmore asked him to respond verbally. Mr. Chawla did so, stating that he did understand. *fn6" (Tr. 42-46).

 After receiving his Miranda warnings, Mr. Chawla engaged in a conversation with Mr. Whitmore. Mr. Chawla inquired as to the nature of the charges against him, and Mr. Whitmore explained that he was being charged with conspiracy to import narcotics into the United States and with attempting to import the same narcotics. Mr. Chawla expressed disbelief, stating that this was an "unfortunate mistake" and that he had no knowledge of any narcotics in his luggage. Mr. Whitmore advised Mr. Chawla that the situation was no mistake, that Mr. Chawla was in a "very serious situation" and faced up to fifteen years in prison for these offenses (Tr. 46-48, 85). Mr. Chawla suggested the possibility that the travel agent in India whose job it was to deliver his luggage to the airport had placed the narcotics in the luggage to "set him up" and disgrace his family, said to be "influential in politics in India." (Tr. 47-48). Mr. Whitmore responded that a jury was unlikely to believe this story, and that he would not believe it were he a juror (Tr. 48, 85-86). Mr. Chawla then indicated that he was willing to make a statement in the DEA office at Kennedy Airport (Tr. 48).

 Once at the DEA office, Mr. Chawla volunteered that he was a member of an "international heroin smuggling organization" and that he had been given the heroin in his luggage by a named individual (one C.S. or C.V. Ghandi) in India to deliver to another named individual (Joseph Holloway) in Newark, New Jersey. Mr. Chawla was to receive $ 100,000 for bringing the heroin into the United States and delivering it to New Jersey. *fn7" (Tr. 49-50). Prior to making these statements, Mr. Chawla was asked whether he remembered and understood his Miranda rights; he responded that he did and that he "wanted to completely cooperate to exonerate himself." (Tr. 49). Mr. Whitmore informed Mr. Chawla that the extent of any cooperation would be made known to the judge presiding over his case. He offered no guarantees, but advised Mr. Chawla that in the past judges had considered cooperation in fashioning sentences for other individuals Mr. Whitmore had arrested (Tr. 49, 86-88).

 Subsequently, Mr. Chawla was transported by Mr. Williams in a DEA vehicle to the Metropolitan Correctional Center ("MCC") in Manhattan (Tr. 141). During this ride, Mr. Chawla volunteered that he had no money for a lawyer, and Mr. Williams responded that one would be appointed for him (Tr. 141, 158). The following morning, October 1, 1979, Mr. Whitmore and Mr. Williams arrived at the MCC at approximately 9:30 to bring Mr. Chawla to the courthouse in this district so that he could be arraigned (Tr. 54, 89, 141). Arriving at the courthouse at about 10:15, Mr. Whitmore proceeded to the office of the United States Attorney while Mr. Williams remained with Mr. Chawla in a temporary detention area. With the assistance of Assistant ...

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