On September 30, 2010, Defendant Ivica Saric moved to dismiss the present Indictment on two grounds: 1) that his right to a speedy trial pursuant to the Sixth Amendment and the Speedy Trial Act had been violated; and 2) that the Indictment fails to state a claim for which the Defendant can be prosecuted. Saric also moved to suppress all statements obtained by law enforcement officials before and after his arrest as violative of his rights against self-incrimination pursuant to Miranda v. Arizona, 384 U.S. 346 (1966). On October 20, 2010, this Court held a hearing on the issue of suppression. Supplemental briefing by the parties was submitted on November 24, 2010. On December 28, 2010, this Court granted the Government's request to exclude time between December 28, 2010 and the date of this opinion under the Speedy Trial Act, 18 U.S.C. § 3161 (h)(7)(A).
For the reasons that follow, all three of Saric's motions are denied.
Defendant Ivica Saric, a Canadian citizen, came to the United States in the early 1990's. (Def. Aff. ¶ 2). In 1993 and 1994, Saric was the sole owner and operator of Tip Top Travel, NY Inc. ("Tip Top"), a travel agency located at 27 West 20th Street, New York, New York. (Compl. ¶ 2, Def. Aff. ¶ 2). Saric was able to work in the United States under a B-1 visa. (Def. Aff. ¶ 2).
In 1993, Tip Top initiated an application with the Airlines Reporting Corporation ("ARC"), id. at ¶ 5, an independent corporation owned by sixteen airlines that has an affiliation with over 40,000 travel agencies throughout the United States. (Compl. ¶ 2). Approval of Tip Top's application with ARC enabled the agency to print airline tickets on ARC ticket stock using special plates with Tip Top's name and identification number such that the tickets would be accepted by major airlines. (Def. Aff. ¶ 5). Once a ticket is sold by an affiliate travel agency, ARC collects the ticket price from the agency and passes the money to the appropriate airline.
The application for ARC accreditation required extensive information from Saric, including a copy of his passport, name of previous employers, bank account information and tax filings from the five years prior to his ARC application. Id. ARC approved Tip Top's accreditation and assigned the agency a unique Agency Code Number ("ACN"). Id. at ¶ 6. In addition to assigning the ACN, ARC also commenced shipment to Tip Top of the blank ticket stock required to print airline tickets. Id. at ¶ 7.
During 1994, Tip Top began to fall behind on its payments to ARC. (Def. Aff. ¶ 8). As of early September 1994, Tip Top allegedly owed ARC more than $47,000 for airline tickets that had been distributed to passengers and reported to ARC but had not been paid for by Tip Top. (Compl. ¶ 2.b).While Tip Top would occasionally fall behind on payments, it would, according to Saric, eventually make the necessary payments to ARC. (Def. Aff. ¶ 8). The complaint alleges that on or about September 9, 1994, an ARC representative went to the Tip Top office and demanded the return of its ARC ticket stock and airline identification plates. (Compl. ¶ 2.d). From that point forward, Tip Top was allegedly no longer authorized to issue any ARC airline tickets using its unique ACN. Id. According to Saric, however, ARC never notified him that Tip Top was no longer authorized to issue airline tickets, nor did any ARC representative ever come to Tip Top premises and confiscate airline ticket stock. (Def. Aff. ¶ 9).
The complaint alleges that between on or about September 10, 1994 and on or about September 18, 1994, Tip Top issued approximately 195 unauthorized ARC airline tickets. (Compl. ¶ 2.e). These tickets contained Tip Top's ACN, which it was allegedly no longer authorized to use. Id. Tip Top did not report any of the allegedly unauthorized ticket sales to ARC or make any payments to ARC related to those ticket sales. Id. These tickets had a value of approximately $188,841.35. Id.
In 1994, Saric began seeking investors and/or buyers for Tip Top. (Def. Aff. ¶ 10). Through this process, Saric met Mark Edelstein, an investment consultant. Id. During this same period, an individual by the name of "Tariq" contacted Saric about potentially purchasing Tip Top. Id. at ¶ 11. Saric had some preliminary conversations with "Tariq" but, in early September 1994, Saric was contacted by a security agent of American Airlines who indicated that "Tariq" was under investigation for possible misuse of airline instruments such as tickets, plates and credit cards. Id. The American Airlines security agent asked Saric if he would be willing to speak with the authorities regarding any discussions with "Tariq." Id. Saric agreed to do so. Id.
On September 26, 1994, Saric met with Special Agent Robert Fortner of the United States Secret Service ("USSS") and others in New York City with respect to Saric's discussions with "Tariq," id. at ¶ 12, who the authorities believed was conducting a "bust out" scheme in which he would process the sales of airline tickets and fail to remit the proceeds to ARC. Transcript of Oct. 20, 2010 Hearing ("Tr. 10/20/10") at 5-6. Once Saric arrived at the USSS office, Agent Fortner requested that he leave and return with Tip Top's business documents. Id. at 8. Saric complied, left the office and returned soon after with Tip Top's documents. Id. at 9.
When Saric returned, the documents were submitted to an ARC representative so that an audit could be conducted. Id. The audit indicated that there was approximately $188,000 which Tip Top had not remitted to ARC. Id. at 10. At this time, Agent Fortner concluded that Saric himself was conducting a "bust out" scheme, id., and according to Saric, Agent Fortner then placed him under arrest. (Def. Aff. at ¶ 14). Saric claims that Agent Fortner failed to read him his rights pursuant to Miranda during any conversation either before or after his arrest. Id. Saric also denies having made any incriminating statements during this conversation. Id. at ¶ 15.
Contrary to Saric's affidavit, Agent Fortner testified at the October 20, 2010 suppression hearing that Saric was not placed under arrest during this meeting on September 26, 1994. (Tr. 10/20/10 at 10). Rather, Agent Fortner testified, that once the audit was complete, he "confronted" Saric with the results. Id. at 19. According to Agent Fortner, Saric said he did not have the money for the sale of the tickets and that he could not explain what happened to the money. Id. Before further questioning, Agent Fortner then read Saric his Miranda rights and Saric agreed to continue the conversation. Id. at 20. At this point, Saric again told Agent Fortner that he was aware of the fact that he was no longer authorized by ARC to issue tickets. Id. at 12-13. The remainder of the interview lasted less than an hour. Id. at 13. After the interview, Saric left the USSS offices. Two days later, on September 28, 1994, Saric was arrested by Agent Fortner pursuant to a judicially authorized arrest warrant. Id. at 14.
Saric was charged in this District on or about September 27, 1994 with access device fraud in violation of 18 U.S.C. §1029, and a warrant was issued for the Defendant's arrest. The Defendant was arrested on September 28, 1994 (Trilling Aff. ¶¶ 3-4). On the same day as his arrest, Saric was processed and arraigned before a magistrate in this District on a sealed complaint. Id. at ¶ 4. The magistrate judge released Saric on a $200,000 personal recognizance bond after setting bail conditions including the posting of a cash bond, the surrender of Saric's passport by the following day, September 29, 1994 by 5:00pm, and the surrender of all blank airline ticket stock. Id.
According to Saric, he returned to the magistrate clerk's office and surrendered his Canadian passport and citizenship documents on the same day as his presentment. (Def. Aff. ¶ 16). A review of court documents and transcripts, however, indicates that the Defendant failed to appear in Court to surrender his passport or post the cash bond, or to inform the Court that he was unable to comply with the conditions within the time frame required by the Court. (Trilling Aff. ¶ 6). Upon Saric's release, he contacted Mark Edelstein, the consultant who was going to help Saric find investors for Tip Top, seeking a recommendation for a criminal attorney to assist him on this matter. (Def. Aff. ¶17). Edelstein recommended an attorney by the name of Jack Solerwitz. Id. Saric states that he met with Solerwitz on the date of his release, September 28, 1994, at Solerwitz's office at 1 Delancy Street. Id. at ¶ 18. According to Saric, he paid Solerwitz a retainer at that time and Solerwitz told Saric that he would go to court the following day to review Saric's file and investigate the case. Id. The following evening, on September 29, 1994, Saric claims he met Solerwitz again at the Delancy Street law office. Id. at ¶ 19. At that time, Saric states, Solerwitz handed him his passport and Canadian citizenship card and told him that a mistake had been made and that the criminal case against Saric had been dismissed. Id.
The Defendant failed to appear in magistrate court on September 29, 1994 and a violation of bail hearing was held on September 30, 1994.*fn1 (Trilling Aff. ¶¶ 6, 8). On September 30, 1994, United States Marshal Service ("USMS") went to Saric's home and place of business, but could not locate him. Id. at ¶ 7. The USMS spoke with the superintendent at the apartment building where the Defendant was last known to reside and learned that the Defendant had left his residence early on the morning of September 30, 1994. Id. Based on this information, the USMS made an inquiry at the local airports and learned that Saric had taken a flight at approximately 5:00 am on the morning of September 30, 1994 from LaGuardia Airport to Montreal, Canada. Id.
On July 20, 1995, a grand jury sitting in this District returned a two-count indictment against Saric, charging him with one count of access device fraud in violation of 18 U.S.C. § 1029, and one count of bail jumping, in violation of 18 U.S.C. §3146. Id. at ¶ 11. On July 25, 1995, an arrest warrant was issued based on the Indictment Id.
In March 1996, United States Postal Inspector John Marsh, through contacts with Canadian banks and authorities learned of an address where the Defendant was believed to be receiving mail. Id. at ¶ 12. This address was 4854 Cotec Des Nieges, Apartment 1210, Montreal, Quebec H37 1G7 ("First Address"). Id. By in or about September 1996, Postal Inspector Marsh confirmed through the Royal Canadian Mounted Police ("RCMP") that the Defendant was indeed receiving mail at the First Address and that his name was listed on the lobby directory of that residence. Id.
By September 25, 1996, an extradition package was finalized and forwarded to the Canadian authorities by the Department of Justice's Office of International Affairs ("OIA"). Id. at ¶ 13. On or about November 25, 1996, the Canadian authorities notified OIA that the submitted package was incomplete and, among other things, did not meet the country's requirement of containing affidavits from persons with first-hand knowledge. Id. Two years later, in or about September 23, 1998, a revised extradition package was submitted to Canada. Id. at ¶ 15. While Canada accepted this revised request, Canadian authorities soon informed OIA and the U.S. Attorney's Office that they could no longer locate the Defendant. Id. On or about June 14, 1999, the RCMP notified the USSS that Canadian law enforcement officers had visited the last known address of the Defendant in or about December 1998 and discovered that he had vacated that address in or about 1997. Id. Canadian authorities continued their attempt to locate the Defendant, but in or about November 2001, Canadian authorities again notified OIA that they could not confirm whether the Defendant was within the province of Quebec. Id. at ¶ 16. In or about November 2002, the U.S. Attorney's Office and OIA jointly decided to close their files on the 1998 extradition request to Canada in light of Canada's inability to locate the Defendant. Id.
During the period between 1998 and 2007, the USSS and USMS conducted checks of various law enforcement databases including the New York State Department of Motor Vehicles ("DMV"), New York Statewide Police Information Network ("NYSPIN"), National Crime Information Center ("NCIC"), Autotrack, and Treasury Enforcement Communications Systems ("TECS") in an attempt to locate the Defendant. Id. at ¶ 17-26. These checks were all unsuccessful. Id. In or about March 2007, a Deputy United States Marshal ("DUSM") learned from a contact at the Bank of Nova Scotia in Toronto, Canada, that the Defendant had an active bank account with that Bank. Id. at ¶ 27. The DUSM also learned from the bank that the Defendant had a current listed address of 3651 Av De L'Hotel De Ville, Montreal, Canada ("Second Address"). Id. The DUSM also located an article submitted by the Defendant to a local Free Mason's chapter in Montreal. Id. The DUSM notified the U.S. Attorney's Office of his findings and that office, along with the OIA, worked together to prepare and submit a new extradition package to Canada. Id. Approximately five months later, in or about August 2007, OIA forwarded the new extradition request to Canada and on July 22, 2008, Saric was arrested in Canada. Id. at ¶¶ 28-29. An extradition hearing was scheduled for September 16, 2008 but was postponed, at Saric's request, to November 20, 2008. Id. at ¶ 29. The extradition hearing was held on November 20, 2008, and the Defendant was ordered extradited. Id. Saric appealed the extradition order, but this appeal was heard and dismissed on June 11, 2010. Id. The Defendant was then ordered to surrender to the Canadian prison authorities within 24 hours of the dismissal of his appeal. Id. at ¶ 30. Instead, the Defendant sent an email on June 11, 2010 to an agent with Immigration and Customs Enforcement ("ICE") based in Buffalo, New York, stating his intent to turn himself in. Id.
On or about June 12, 2010, the Defendant presented himself at the New York-Canada border at the Champlain, New York port of entry and told the border patrol agent that he was present for a meeting with the United States Marshals and that there was a warrant for his arrest. Id. at ¶ 31. The Defendant was fingerprinted and two outstanding warrants were returned. Id. The Defendant was taken into custody and after being presented before a magistrate judge in the Northern District of New York, he was transferred to this District. Id. at ¶ 32. The Defendant was presented in this District and arraigned before this Court on June 21, 2010. Id.
A.Motion to Dismiss the Indictment Pursuant to the Sixth Amendment and Speedy Trial Act.
Saric moves to dismiss the Indictment in this case on the ground that his right to a speedy trial, as guaranteed both by the Sixth Amendment and the Speedy Trial Act, has been violated. For the ...