United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM, AND REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
C. COLLINS, UNITED STATES MAGISTRATE JUDGE
matter was referred to the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b).
filed a Motion to Dismiss Due to Unconstitutional Vagueness
(Doc. No. 46); Motion to Suppress Physical Evidence and
Statements (Doc. No. 47), and Supplement to Motion to
Suppress (Doc. No. 56); and Supplemental Motion to Suppress
Physical Evidence (Doc. No. 62). The government filed its
responses (Doc. Nos. 50, 64). A hearing was held on
Defendant's motions and a written transcript was filed
(Doc. No. 69). Post-hearing briefs were filed by both parties
(Doc. Nos. 74, 78). Based on the evidence and testimony
adduced, as well as a review of the transcript of the hearing
held in this matter; and having had an opportunity to
evaluate the credibility of the witnesses presented and to
observe their behavior, the undersigned makes the following
finds of fact and conclusions of law.
February 24, 2016, defendant Michael Bruce McDonald was
indicted in this district for transportation of child
pornography as a result of an undercover police investigation
by Saint Louis County, Missouri detectives. Investigators
were aware that defendant, who is an American citizen, was
living abroad near the island city of Davao in the
Philippines. Defendant lived with his Filipino wife and
several minor females. Upon indictment, the United States
Department of State notified the Philippines Bureau of
Immigration (BI) through the Federal Bureau of Investigation
(FBI) that defendant's passport was revoked. He was not
extradited. U.S. law enforcement officials anticipated that
defendant would be arrested and deported from the Philippines
because of the change in his travel status when his passport
was revoked. See (Def. Ex. 1).
Louis investigators were communicating with FBI Special Agent
Tenzin Atsatsang who was living and working in Manila,
Philippines on a three-month assignment as the manager of the
FBI's program regarding child sex tourism. He had no law
enforcement authority in the Philippines, nor could he induce
foreign officials to act on information that he provided to
his Philippine counterparts. The Philippine government's
mutual cooperation with FBI investigations is generally
voluntary. Agent Atsatsang's role abroad was as a liaison
to Philippine federal law enforcement officials about FBI
investigations. He was also the point of contact for FBI
Special Agent Nikki Badolato in Saint Louis.
Atsatsang and Badolato testified for the government at the
evidentiary hearing in this case. The FBI agents knew that
the governments of the Philippines and the United States were
aware of defendant McDonald's location for nearly a month
before his planned arrest. Philippine authorities shared
surveillance photographs taken by their law enforcement
officers to confirm that defendant McDonald lived near Davao
City on the island of Mindanao. The FBI had discussions with
Filipino law enforcement officials about the process of
revoking defendant's passport, issuing a temporary
passport, and executing a warrant for his arrest. The
authorities in the Philippines provided the FBI with status
updates about their monitoring of defendant McDonald. Agent
Atsatsang had a general idea of the internal procedures that
would result in defendant's deportation from the
Philippines. And local assistance was needed to find and
secure defendant McDonald's removal.
Atsatsang was aware of logistical and safety challenges
around Davao. The area is occupied by a terrorist group known
as Abu Sayaf. Law enforcement officials fear that kidnappings
of foreigners can occur, especially American visitors. Agent
Atsatsang knew that he would need special permission to go to
the island by U.S. State Department security officers. He was
also aware that the legal system and criminal justice system
in Davao could be impeded by delays, which could impact
securing defendant's return to the United States.
the Philippines BI informed Agent Atsatsang that they planned
to arrest defendant for being out of status, he flew to Davao
to be present on March 28, 2016. Defendant was arrested by
Philippine officials on March 29th.
Atsatsang was near the house at the time of defendant's
deportation arrest. He was riding in one of the three vans
that approached the vicinity of defendant's residence.
The vehicles parked about one hundred feet away from the
house. The first van (van #1) had officers with the National
Bureau of Investigation (NBI) who were stationed in Davao and
also Davao Bureau of Immigration officers. NBI officers from
Manila rode in the second van to rescue any alleged victims.
Agent Atsatsang rode in the third van with caseworkers from
the Philippine department of social welfare and with
Assistant Legal Attache, Alexander Gordon, who told Agent
Atsatsang that the FBI's role was strictly limited to
observation. The Legal Attache's Office also communicated
with Agent Badolato. Agent Atsatsang did not direct the
actions of the Philippine agents. He did not ask them to
seize anything from defendant's home. Agent Atsatsang did
not attempt to circumvent the laws of the United States in
his actions. Additionally, the FBI was not aware of any
search warrant issued through a Philippine court or any
investigation by the Philippine government about McDonald
prior to March 29th.
occupants of van #1 oversaw defendant's arrest and told
the occupants of the third van, including Agent Atsatsang,
when defendant McDonald was secured. Agent Atsatsang did not
see the arrest, nor did he communicate with Philippine
arresting officers. He did not see defendant McDonald's
personal belongings. Philippine law enforcement was aware
that defendant had a suitcase packed to travel with him. He
did not know the content of defendant's personal
belongings. The Agent's view was blocked by the second
van and there was no means of communication between the
vehicles. He did not see van #1 leave the house with
defendant McDonald. Agent Atsatsang approached the property
after van #1 departed to the local Bureau of Immigration
office. He stood inside the residence for approximately 20
seconds to look for the alleged victims. NBI and BI agents
also entered the house. Agent Atsatsang was present at the
house for a couple of hours.
leaving defendant's home, Agent Atsatsang traveled to the
local BI Office in Davao City where defendant McDonald was in
custody. Upon arriving at the BI office, he saw defendant
McDonald seated in a room but could not see if his hands were
cuffed. Defendant did not appear to have been mistreated by
officials. Defendant McDonald appeared to be alert and
uninjured. He was processed through the Philippine legal
system, including an inventory search of his bag by Bureau of
Immigration officials on March 29, 2016. See
(Gov't Ex. 3). Defendant signed the form acknowledging
that his belongings in his suitcase included a camera, a Dell
CPU and a Dell laptop computer.
Atsatsang next saw defendant McDonald at the local airport
for transport to Manila by airplane. Defendant's travel
within the country was overseen by Philippine officials.
Atsatsang returned to Manila separately. A day after
defendant's arrest in Davao, officials with the U.S.
State Department told Agent Atsatsang that defendant had
belongings taken from him while he was in custody. Later, FBI
agents learned from defendant that his wife packed his
Atsatsang next saw defendant McDonald that evening in Manila
prior to his departure to the United States on April 1, 2016.
Defendant appeared to be in good health the last time Agent
Atsatsang saw him. He was lucid. He did not invoke his right
to silence. He did not request any medication nor did he
appear to need any. Defendant was dressed in a T-shirt and
shorts and he apologized for his appearance. Agent Atsatsang
did not search defendant's luggage.
other FBI agents arrived in Manila to meet defendant McDonald
and to escort him back the United States. On April 1, 2016,
Special Agents Cindy Dockery and Todd Seeker escorted
defendant on a commercial airliner bound for Los Angeles,
Seeker also testified at the hearing before the undersigned.
He noted that defendant appeared to be fine when they met at
the Manila airport. He heard defendant thank the Philippine
officials for their hospitality. Defendant had a carry-on bag
and a suitcase that was checked into the plane's luggage
compartment. Agents asked the flight crew for their
preference about whether defendant should be handcuffed
during the flight. The flight crew responded that defendant
need not be cuffed so long as there was no problem in the
cabin during the 12- to 13-hour flight. McDonald was not
handcuffed. Neither agent was armed. McDonald sat between the
two agents during the flight against the rear cabin wall in
the last row. There were passengers in the row in front of
them. Defendant fell asleep shortly after take-off and they
interviewed him after he woke up.
Dockery kept a timeline of the events during the flight that
was memorialized in a FBI 302 report. See (Gov't
Ex. 9). The report chronicled agents' interactions with
defendant by Central Standard Time (CST), including bathroom
breaks, his use of blankets when he said that he was cold,
and the food and drink he consumed.
7:30 am Prior to flight takeoff, McDonald was escorted to the
7:48 am McDonald asked for the cabin temperature to be raised
and was given two blankets.
8:15 am McDonald ate a meal.
9:00 am McDonald slept.
9:23 am McDonald woke up.
9:27 am McDonald advised he was cold, but declined a third
9:30 am McDonald was given his Miranda rights.
11:23 am McDonald asked for water.
12:04 pm McDonald was given water by flight attendant.
12:07 pm McDonald was offered peanuts.
12:25 pm McDonald wanted to take a break.
12:30 pm McDonald was escorted to the restroom.
12:40 pm McDonald declined a snack.
1:40 pm McDonald woke up from a nap and declined getting up
1:45 pm McDonald went back to sleep.
4:47 pm McDonald woke up, asked for and received a third
4:59 pm McDonald was given his Miranda rights again.
5:13 pm McDonald was given coffee, but declined eating as it
was too early for him to eat.
5:47 pm McDonald asked and was given more coffee.
6:07 pm McDonald ate a slice of pound cake.
6:10 pm The interview was concluded.
6:50 pm McDonald declined going to the restroom.
Seeker was also aware that defendant had a law enforcement
background. He presented defendant with the first of two FBI
Advice of Rights forms at 9:31 a.m. (CST).
See (Gov't Ex. 10). Agent Seeker read defendant
his rights from the form.
Before we ask any questions, you must understand your rights.
You have the right to remain silent. Anything you say can be
used against you in court. You have the right to talk to a
lawyer for advice before we ask you any questions. You have
the right to have a lawyer with you during questioning. If
you cannot afford a lawyer, one will be appointed for you
before any questioning, if you wish. If you decide to ...