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United States v. McDonald

United States District Court, E.D. Missouri, Eastern Division

November 29, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL BRUCE McDONALD, Defendant.

          MEMORANDUM, AND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          NOELLE C. COLLINS, UNITED STATES MAGISTRATE JUDGE

         This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b).

         Defendant 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.

         FINDINGS OF FACT

         On 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the Philippines Bureau of Immigration (BI) through the Federal Bureau of Investigation (FBI) that defendant's passport was revoked.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would be arrested and deported from the Philippines because of the change in his travel status when his passport was revoked.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).

         Saint 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.

         Agents 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.

         Agent 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.

         When 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.

         Defendant's Deportation Arrest

         Agent 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[1] 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.

         The 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.

         After 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.

         Agent 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.

         Agent 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 belongings.

         Agent 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.

         Two 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, California.

         Agent 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.

         Agent 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.

Time Notes
7:30 am Prior to flight takeoff, McDonald was escorted to the restroom.
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 blanket.
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 to stretch.
1:45 pm McDonald went back to sleep.
4:47 pm McDonald woke up, asked for and received a third blanket.
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.

         Agent 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 ...

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