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September 12, 1991


The opinion of the court was delivered by: Gerald E. Rosen, District Judge.[fn*]

                      TO SUPPRESS EVIDENCE


Defendants Dharamdeo Babwah and Deodath Maharaj are charged with money laundering and violation of the federal currency reporting statutes. The charges against Defendants arise out of a United States Customs Service investigation, surveillance and subsequent search of residential premises located at 103-16 107th Street in Ozone Park, Queens on June 13, 1991.

Presently before the Court are Defendants Babwah's and Maharaj's separately-filed Motions to Suppress Evidence of the currency, bank deposit slips, and other financial records found at the 107th Street premises, as well as statements made by the Defendants to Customs agents during and after the search of the premises.

The Court heard the testimony of the three Customs agents involved in the June 13, 1991 surveillance and search — Special Agents Robert Devine, Brian Aryai, and Steven Garsh — and also received into evidence documentary evidence regarding this matter on August 26 and 27, 1991, including the Affidavit of U.S. Customs Special Agent James E. McAndrew, which was originally submitted in support of a seizure warrant to seize the contents of a bank account.


Based on the testimony and other evidence received by the Court during the two days of proceedings on this matter, the Court makes the following findings of fact.

On June 13, 1991 Special Agents Robert Devine and Brian Aryai of the U.S. Customs Service were engaged in a surveillance of a residence located at 103-16 107th Street in Ozone Park, Queens (referred to herein as the "premises" or the "residence") in connection with an ongoing Customs Service money laundering/currency reporting violation investigation which was precipitated by the seizure of a large amount of currency a week earlier from a bank account of Juan Carlos and Sara Ve Agreda.

Both Agent Aryai and Agent Devine are experienced Customs investigators. Agent Aryai testified that he has been a Customs Special Agent for 8 years. Agent Devine, who has been a Customs Service Special Agent for 4 1/2 years, testified that he has been involved in approximately 100 money-laundering and narcotics investigations.*fn1

During their surveillance of the 107th Street premises on the morning of June 13, 1991, Agents Devine and Aryai, stationed in separate cars, observed Defendants Babwah and Maharaj exit the residence with a female, who was subsequently identified as Mrs. Agreda. The three got into a red BMW and Defendant Babwah proceeded to drive away, with Defendant Maharaj in the front passenger seat and Mrs. Agreda in the back seat. Agents Devine and Aryai followed them.

The two agents, (one of whom stayed at virtually all times directly behind the red BMW), observed the Defendants drive in an evasive manner — they kept zigzagging and squaring-the-blocks every block rather than proceeding on a direct route to their ultimate destination on Liberty Avenue. They further observed the Defendants continuously look into the rear view mirrors as if to see whether they were being followed, and appear to make several telephone calls on a cellular telephone in the car.

At the corner of 121st Street and Liberty Avenue, all three occupants of the BMW got out of the car and entered Lefferts Realty. A short time later, Defendant Maharaj returned to the car and retrieved a large brown paper bag, and went into the Citibank directly across the street from Lefferts. Agent Devine followed him into the bank.

Devine observed Maharaj proceed to the back of the bank and meet with a bank employee. The two of them then went to a teller's window and Devine overheard the teller discussing the currency transaction reports ("CTR's") that banks are required to submit to the Government for deposits in excess of $10,000. Devine observed Defendant Babwah come into the bank two minutes later, speak briefly with Maharaj then leave. Defendant Maharaj subsequently left the bank as well, leaving the brown paper bag with which he had entered with the bank employee. He proceeded, as had Babwah, to return to Lefferts Realty office across the street. A few minutes later, the Defendants and Mrs. Agreda returned to the BMW and drove away.

Agents Devine and Aryai continued to follow them but their evasive driving tactics proved successful — the agents had managed to maintain their surveillance for a while despite the Defendants' having run a red light, but when the Defendants ran a second red light, the agents were cut off by a truck crossing the intersection. As a result, they lost sight of the BMW.

Having lost sight of the car, the agents returned to resume surveillance of the 107th Street residence. Later that day, again while stationed in their separate cars near the residence, Devine and Aryai observed Defendant Maharaj park a different car around the corner from the 107th Street residence, proceed to enter the premises and then leave a few minutes later with a large suitcase. Upon exiting, Maharaj walked toward Liberty Avenue and met up with Defendant Babwah and Mrs. Agreda who were waiting in the red BMW.

Agents Devine and Aryai followed them. Once again, the Defendants took an evasive, zigzagging route to their ultimate destination — a house near 116th Street and Atlantic Avenue. All three occupants of the BMW got out of the car there, entered the house, and then exited with more suitcases which they put in the car then drove away.*fn2 The agents continued to follow them.

When the Defendants resumed their circuitous driving tactics, Devine and Aryai put their flashers on, Agent Aryai put his siren on, and they pulled the BMW over. When the BMW slowed down to pull over, Agent Devine pulled his car diagonally in front of the BMW, and Aryai pulled in behind it. Both agents testified that Defendants could not have driven away without hitting the agents' cars.

Agent Aryai testified that Defendant Babwah, who was driving the BMW, "bolted" out of the car after he and Agent Devine had pulled them over and asked, "What's the problem?" Aryai shouted to him with his megaphone to get back into the car. Babwah complied and got back into the BMW. Both Agent Devine and Agent Aryai then exited their cars simultaneously and approached the BMW. They identified themselves as Customs agents to the occupants of the car and told them that they were investigating money laundering. At the time, the agents were not wearing any kind of uniform and did not display their weapons. Agent Aryai then told Defendant Babwah to get out of the car, and to put his hands up. When he did, Aryai patted him down. Defendant Maharaj and Mrs. Agreda remained inside the car. Agent Devine told Defendant Maharaj and Mrs. Agreda to keep their hands where he could see them.

After patting down Defendant Babwah, Agent Aryai asked him for his registration for the BMW. Babwah said that the BMW was not his, that it belonged to a friend, and he produced copies of registration and insurance certificates which showed the registered address as the 107th Street residence. The agents then asked Babwah whether they could search the car and luggage. Babwah consented to the search but said that the luggage belonged to Mrs. Agreda. Mrs. Agreda confirmed that the suitcases belonged to her. She said she was on her way to the airport, but she had no objections to a search of her luggage. Neither of the agents asked Defendant Maharaj for his consent to a search of the car or luggage.

Accompanied by Defendant Babwah to the rear of the car, the agents opened the trunk and searched the trunk and suitcases. No narcotics or currency, or any evidence of a crime were found; all that was in the suitcases was clothing, personal items, and some candy bars.

Thereafter, Agent Aryai asked Babwah, "Have you ever been to this address [the 107th Street address on the car registration]?" He said "No." The agents then asked whether the occupants of the car would come to the 107th Street premises with them. They agreed. They asked Mrs. Agreda to ride with Agent Aryai, and asked Babwah's consent to Agent Devine riding in the BMW with Babwah and Maharaj. Babwah consented to the arrangement and Agent Devine got in the back seat of the BMW, while Defendant Maharaj stayed in the front passenger seat while Defendant Babwah drove. Devine testified that he did not ask the Defendants anything during the ride to 107th Street, nor did he give Defendants any directions to get to the 107th Street residence.

Once the group arrived in front of the 107th Street premises, both Defendants Babwah and Maharaj denied ever having been at the house, and further denied ever having been on that block. Agent Aryai then confronted them with having previously seen them at that residence, and the Defendants then changed their story. First they said they had been there a few times but still denied living there. Defendant Babwah subsequently said that the residence was his friend Juan Carlos Agreda's house, but he was staying there for a while. Then he again changed his story and said, "I lied. I live here," and produced the key to the front door.

Agent Aryai testified that he then said to Defendant Babwah, "Since you live here, can we go upstairs and search?" Aryai said that Babwah verbally consented. Agent Aryai then hand-wrote a consent form on a blank piece of paper and Defendant Babwah signed that handwritten form.*fn3 Aryai testified that he usually carries extra blank consent forms but he did not have any with him on June 13th. Neither of the agents asked Defendant Maharaj for his consent to search the premises.

The two agents then went into the residence and did a security sweep. After they had done so, Agent Aryai told Babwah, "We're looking for guns, cash and narcotics," and Babwah responded that there were none.

Agent Devine sat in the kitchen with Defendant Maharaj and Mrs. Agreda, while Defendant Babwah went with Agent Aryai, who conducted the actual search.

Aryai found a large brown paper bag in the bedroom closet which contained $7,098 in singles. Babwah first told Agent Aryai that that money was not his. Then, 10 minutes later he said he had lied and that the money was his and that as far as he knew, there was no more cash in the house. Aryai continued his search of the closet. As he approached a duffel bag, Babwah grabbed the bag and said there was more money in it. The duffel bag in fact contained $168,700 in cash.

Babwah originally said that the money was his profits from his fruit and vegetable stand. When Agent Aryai asked him what all that cash was doing in his house and why he didn't put the money in the bank, Babwah changed his story — he told Agent Aryai that he had brought most of the money in from Trinidad all in one trip. He also told Aryai that he knew the federal currency reporting requirements regarding bringing money into the United States. Aryai then placed Defendant Babwah under arrest and read him his Miranda rights. Agent Aryai testified that while reading Defendant ...

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