The opinion of the court was delivered by: VINCENT L. BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
This case involves alleged use of false documents in violation of 18 USC §§ 371, 542 and 1001 to circumvent a retaliatory 100% duty imposed on imported tomatoes and other vegetable products to induce European nations to drop restrictions on hormone-containing meat products of the United States. An increase of duty from 13.6% to 100% on tomatoes but not tomato sauce was based on a Presidential finding, citing no sources, that hormone use was not harmful to human health. The legal background for this duty increase is discussed in my memorandum order signed September 13, 1993,
denying defendants' motion to dismiss the indictment but granting additional discovery and other relief to defendants.
Defendants move under Fed.R.Cr.P. 12(b) and 41(f) to suppress statements made during a search pursuant to warrant of the corporate defendant's premises. After conducting an evidentiary hearing, upon which are based the factual findings summarized in this memorandum order, I deny the motion. As I must, I reserve decision as to the admissibility of any statements taken from defendants during the search until the issue may arise at trial.
During a search of defendants' business premises by more than ten (10) armed United States Customs agents, the defendant Guido Gulla ("Guido") was asked to identify the contents of a large vehicle parked outside the premises. Guido responded that whatever was indicated in the invoice was in the vehicle.
The lead Customs agent indicated that Customs had knowledge that tomatoes entered as tomato sauce were in the vehicle. Guido then made a statement - concededly false - that there were some tomatoes there but that he had not had time to alter the paperwork because of a belated telephonic disclosure by the shipper that there was not enough tomato sauce for the shipment, so that some tomatoes had been substituted.
The Customs agents intended by their questioning to induce the defendants to cooperate, and to name other importers engaged in the importation of tomatoes invoiced as tomato sauce or other less dutiable tomato products. The Customs Service deliberately targeted smaller importers such as the defendants, in order to cause them to inform on larger importers throughout the industry. The Customs agents did not disclose their strategy to defendants.
Conflicting testimony was given by the individual defendants and by Customs agents with regard to whether or not either of the Gullas was told that he could not leave, that he did not need a lawyer, and that he could not have a lawyer present. Guido testified that agents took his personal files as well as business documents and never returned them, but no motion for return of such items has been filed.
Guido's son Vito Gulla ("Vito") testified that he telephoned a friend during the search, and that the unnamed friend told Vito that Vito should have a lawyer present and should answer no questions. Vito did not testify that the friend ever came to the premises or that the friend asked whether or not Vito had an attorney.
The friend in question turned out to be a New Rochelle police officer who was subsequently called as a defense witness. He came to the search site immediately after receiving a call from Vito and remained throughout the balance of the search. The agents asked who the new arrival was and were told that he was a friend; they did not inquire further, nor did they ask the new arrival to leave or object to his continued presence. Customs agents who testified were not questioned by defense counsel about the presence of the interloper.
It strains belief that Customs agents conducting a search of business premises would bar the owners of the business from leaving the premises or would indicate that counsel could not be present, and yet would permit an interloper to remain on the premises during several hours of continued search without even asking the name of the person, or why that person was present. The Gullas were terrified by the manner of entry of the armed agents, by the number of agents involved, and by the number of years in prison ...