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United States v. Aldeen

September 11, 2006

UNITED STATES OF AMERICA,
v.
AHMED ALDEEN, DEFENDANT.



The opinion of the court was delivered by: Townes, United States District Judge:

MEMORANDUM and ORDER

Defendant, Ahmed Aldeen, moves pursuant to Fed. R. Crim. P. 12(b) to suppress statements which defendant made to Secret Service agents on December 6, 2005. This Court, having conducted a suppression hearing on September 6, 2006, now denies defendant's motion for the reasons set forth in the following findings of fact and conclusions of law.

Findings of Fact

The sole witness at the suppression hearing was John Simmello, a Special Agent of the United States Secret Service. The Court credits Agent Simmello's testimony in its entirety.

Agent Simmello is a member of the Protective Intelligence Squad, which investigates, among other things, complaints regarding the use of falsified Secret Service credentials and the impersonation of Secret Service agents (H. 4).*fn1 On November 26, 2005, Simmello's Squad received a complaint alleging that defendant was "engaged in computer-hacking crimes, as well as producing Secret Service credentials and posing as a Secret Service special agent" (H. 5). Later that day, Simmello spoke via telephone with Aaron Harp -- the man who owned the computers allegedly used in the crimes being investigated -- and obtained his permission to seize and search his computers.

After retrieving these computers from a residence owned, but not occupied, by Harp, Simmello and his colleagues delivered the equipment to the Secret Service's "computer-crime section" -- the ESCAP Unit (H. 7). After examining the computers, ESCAP informed Simmello that it had discovered two video files containing child pornography on one of Harp's computers (hereinafter, the "black computer") (H. 8). On December 5, 2005, Simmello telephoned Harp to inform him that he could pick up some of the seized items at the Secret Service's New York Field Office and that agents wished to speak to him (H. 8). Although Simmello did not request that Harp bring anyone with him, defendant accompanied Harp to the New York Field Office the following day (H. 8-9).

Simmello, who recognized defendant from pictures he had seen in the course of his investigation, asked defendant why he had come to the office (H. 9-10). Defendant told Simmello that he "wanted to speak" to Secret Service agents, but did not indicate what he wanted to discuss (H. 10). Nonetheless, Simmello agreed to speak with defendant after he interviewed Harp.

After a private 15-minute conversation with Harp, Simmello went to the reception area and offered to speak with defendant (H. 11). Defendant then voluntarily accompanied Simmello and a colleague, Agent Brown, into an 10-by-15-foot interview room adjacent to the reception area. Although Simmello, who was not armed at the time, closed the door to the interview room, the door remained unlocked throughout the 30-minute conversation that ensued.

At the start of the conversation, the agents told defendant that he was not under arrest or in custody, did not have to answer any questions and was free to leave at any time (H. 14). Defendant said that he understood their admonitions, but nonetheless "wanted to straighten everything out and to talk things over" (H. 14). Defendant then admitted that he had possessed the black computer, stating that Harp had given it to him "to refurbish and to use" in April 2005 (H. 14). He further admitted retaining possession of the computer until "a week or so before Thanksgiving" 2005, when he returned the computer to the apartment from which the agents had subsequently seized it (H. 14). At the agents' request, defendant readily agreed to write a statement acknowledging his possession of the computer during this six-month period (H. 15).

After defendant finished writing this statement, which was introduced into evidence at the hearing as Government Exhibit 1, the agents questioned defendant concerning the pornography ESCAP had discovered. Defendant agreed that there was "a lot of pornography" on the computer, but became visibly nervous when the agents asked him about the child pornography (H. 15-16). The agents again advised defendant that he was not under arrest or in custody, did not have to answer any questions and was free to leave at any time (H. 16). However, defendant said he wanted to continue talking (H. 16).

Defendant thereafter admitted that he had downloaded the child pornography, but claimed that he had viewed the video files only once (H. 16). The agents, aware that the video files had been accessed on more than one occasion, told defendant that they "were actually able to know that he looked at it more than once" (H. 17). Defendant ultimately admitted that he had viewed the files more than once (H. 17).

When the agents asked defendant to reduce these admissions to writing, defendant asked if he "was going to be in trouble for viewing [and] downloading the child pornography" (H. 17). The agents told defendant that "it was not up to [them]"; rather, they intended to tell the U.S. Attorney's Office about the conversation, and "it would be up to the U.S. Attorney's Office and the judge to decide whether or not he would be in trouble" (H. 17). The agents then offered defendant the choice of having them paraphrase what he had said or writing his own statement (H. 17-18). Defendant elected the latter option (H. 18). However, before defendant began to write, the agents advised defendant for a third time that he was not under arrest or in custody, did not have to answer any questions and was free to leave at any time (H. 18). Defendant then wrote a second statement, introduced into evidence at the hearing as Government Exhibit 2, in which he admitted downloading and viewing the child pornography (H. 19).

After obtaining this second written statement, the agents told defendant that they had no further questions and escorted him back to the reception area, where Harp was still waiting (H. 20). Both defendant and Harp voluntarily remained in the reception area for a few more minutes while the agents returned to their office to gather the computer equipment that they wanted to return to Harp (H. 20).

Simmello conceded that, although the agents had access to Miranda warning forms, they did not read defendant his Miranda warnings at any time during the interview (H. 31). Simmello admitted that he knew, prior to the interview, that the child pornography had been downloaded sometime between April and November 2005. However, Simmello did not consider defendant to be the prime suspect just because he possessed the black computer during that period, since there remained a possibility that other people had access to the computer during that ...


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