                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-27-2004

USA v. Vidal
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1071




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                                               NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                     No. 03-1071


           UNITED STATES OF AMERICA

                          v.

                 WIFREDO VIDAL,
              a/k/a WILFREDO VIDAL

                    Wifredo Vidal,
                                 Appellant


APPEAL FROM THE UNITED STATES DISTRICT COURT
       FOR THE DISTRICT OF NEW JERSEY
                D.C. Crim. No. 00-cr-00412
      District Judge: The Honorable Joel A. Pisano


             Argued November 18, 2003


Before: RENDELL, BARRY, and CHERTOFF, Circuit Judges


           (Opinion Filed: January 27, 2004)
John A. Young, Jr., Esq. (Argued)
Peter R. Willis, Esq.
Willis & Young
921 Bergen Avenue
Suite 528
Jersey City, NJ 07306

Attorneys for Appellant


Sabrina G. Comizzoli, Esq. (Argued)
George S. Leone, Esq.
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

Attorneys for Appellee




                                        OPINION




BARRY, Circuit Judge

                                    I. BACKGROUND

       Appellant Wifredo Vidal was employed as an electrical inspector and construction

code official for Union City, Hoboken, Weehawken, West New York, and Teaneck, New

Jersey. He was indicted on June 22, 2000 on seven counts of extorting bribes from

business owners seeking permits to complete construction projects, and for filing false tax

returns, in violation of 18 U.S.C. § 1951(a) and 26 U.S.C. § 7206(1), respectively.

Following trial, Vidal was convicted on four of the six remaining extortion counts and all

                                            2
seven of the false filing counts, and now challenges his convictions on two grounds.

First, he challenges the denial of his motion to suppress statements made to federal agents

during the execution of a search warrant at his home. Second, he claims that there was

insufficient evidence to convict him of violating the Hobbs Act because his victims were

not substantially engaged in interstate commerce.

       The material facts relevant to the suppression motion are not seriously disputed but

only the legal conclusion to be drawn from those facts. Early on the morning of

December 3, 1998, fourteen FBI and IRS agents arrived at Vidal’s home to execute a

search warrant. Two agents knocked on the front door and waited for him to answer.

Twelve other agents waited outside the house or in their vehicles parked on the street, but

not blocking the driveway. Vidal’s wife answered the door, and the agents showed Vidal

the warrant. Vidal’s wife then let the agents in, and they did a brief protective sweep to

secure the five firearms Vidal told them he owned. Following the sweep, nine agents

searched the home for computer records and documents and two agents remained outside.

At no point was Vidal frisked, handcuffed, or touched in any way; no firearm was

displayed; and Vidal was permitted to dress, albeit accompanied by an agent while he did

so.

       Three agents questioned Vidal while sitting at his kitchen table with him. The

agents testified, and the District Court found, that the questioning lasted approximately an

hour and fifteen minutes. Vidal was asked about prices he charged in the course of his



                                             3
employment, his other sources of income, and his tax liability. According to the agents,

Vidal appeared to be “very friendly and hospitable,” “forthcoming,” “cooperative,”

“relaxed,” and showed no hesitation in answering questions. This behavior purportedly

corresponded to his behavior during two previous interrogations at his home in August

and October of 1998, during which he was “[v]ery friendly, very hospitable.”

       Vidal testified, on the other hand, that he was nervous, that he was afraid not to be

cooperative in any encounter with law enforcement agents, and that he “felt like [he] was

going to faint. [His] heart was going a mile a minute.” When asked why he felt this way,

Vidal responded:

       Well, you see all of the people around, crowd the house. You don’t know
       what they are looking for. You just woke up. Your heart is going a million
       miles an hour. You feel kind of dizzy. You know, I have a daughter who is
       only seven years, will she think about it. A million things going through
       your mind at the moment.

He believed that he did not have the right to tell the agents he did not feel well and did

not want to answer questions, although he admitted that the agents did not say anything

that led him to that belief.

       Vidal was permitted to move about the house, although only if accompanied by an

agent. He was permitted to use the bathroom by himself, but with the door partially ajar;

to take his diabetes medication and have a glass of orange juice; and to have his daughter

to sit on his lap during the questioning. Had he shown signs of illness, the agents

testified, they would have stopped the interview. Had he asked to leave, they also



                                              4
testified, he was free to do so. At no time was he placed under arrest.

         Following the interview, Vidal was asked if he had a laptop computer. He

responded that he did, and that it was at his office. Vidal consented to a search of his

office and signed a written consent form, although he testified that he did not know what

he was signing. Vidal accompanied two agents to his office, riding in the front seat of an

agent’s car. He testified that he felt that he was “directed [ ] to the car” and under arrest,

and that he was nervous. After the search, the agents drove Vidal back home.

         Vidal moved to suppress the statements during the interview on the ground that he

was in custody and interrogated but was never read his Miranda rights. The Honorable

Harold A. Ackerman held a suppression hearing and determined that Vidal was not in

custody, when he was concededly interrogated, and denied his motion. Vidal was

subsequently convicted by a jury before the Honorable Joel A. Pisano1 in July 2002 and

was sentenced by Judge Pisano in December 2002 to 41 months on the Hobbs Act counts,

and 36 months on the false tax returns counts, sentences to run concurrently. He now

appeals.

         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291. W e will affirm.




                                     II. DISCUSSION



   1
       This case was reassigned to Judge Pisano in March of 2002.

                                               5
       A.     Was Vidal in Custody?

       Vidal argues that his Fifth Amendment rights were violated when he was subjected

to a custodial interrogation without Miranda warnings having been administered. A

“custodial interrogation” is questioning “initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his freedom of action in any

significant way.” Rhode Island v. Innis, 446 U.S. 291, 298 (1980) (quoting Miranda v.

Arizona, 384 U.S. 436, 444 (1966)). The government does not dispute that Vidal was

interrogated, but argues that he was not in custody at the time and, thus, that the motion to

suppress was properly denied. “This Court reviews the District Court’s denial of a

motion to suppress for clear error as to the underlying factual findings and exercises

plenary review of the District Court’s application of the law to those facts.” United States

v. Perez, 280 F.3d 318, 336 (3d Cir. 2002), cert. denied, 537 U.S. 859 (2002) (citing

United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998)).

       A “custodial interrogation is not susceptible of an exact definition ... the

determination ... must be made on a case-by-case basis.” United States v. Leese, 176 F.3d

740, 743 (3d Cir. 1999) (citing Steigler v. Anderson, 496 F.2d 793, 798 (3d Cir. 1974),

and United States v. Clark, 425 F.2d 827 (3d Cir. 1970)). “[T]he ultimate inquiry is:

‘whether there is a “formal arrest or restraint on freedom of movement” of the degree

associated with a formal arrest.’” Id. (quoting California v. Beheler, 463 U.S. 1121, 1125

(1993) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). “Where, as here, the



                                              6
individual has not been openly arrested when the statements are made, ‘something must

be said or done by the authorities, either in their manner of approach or in the tone or

extent of their questioning, which indicates they would not have heeded a request to

depart or to allow the suspect to do so.’” Leese, 176 F.3d at 743 (quoting Steigler v.

Anderson, 496 F.2d 793, 799 (3d Cir. 1974) (quoting United States v. Hall, 421 F.2d 540,

545 (2d Cir. 1969)).

       We must use an objective standard when considering the circumstances of Vidal’s

interrogation. “[T]he initial determination of custody depends on the objective

circumstances of the interrogation, not on the subjective views harbored by either the

interrogating officers or the person being questioned.” Stansbury v. California, 511 U.S.

318, 323 (1994). The question is whether “a reasonable person [would] have felt he or

she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane,

516 U.S. 99, 112 (1995).

       Following the suppression hearing, Judge Ackerman found that “the

circumstances in this case do not amount to a custodial setting .... There is no indication

in this case that M r. Vidal’s freedom was restricted in any significant way.” Specifically,

he found that Vidal was not placed under arrest; that Vidal’s statements were made in his

home, at his kitchen table in an interview of approximately one hour and fifteen minutes;

that the agents informed Vidal of the search warrant; that the agents read to Vidal the

consent form for searching his office; that Vidal knew exactly what was on the form



                                             7
voluntarily signed it, that at no point was his will overborne; and that Vidal was free to

leave. Judge Ackerman was not troubled by the fact that fourteen agents were involved.

       We agree that Vidal was not in custody while he was being questioned. First, none

of the most obvious indicia of custody were present. Vidal was never formally arrested,

frisked, told he could not stop the questioning, or told he could not leave. Furthermore,

the interrogation took place in Vidal’s home, not in a police station or other more

intimidating location.2

       Second, the record does not show that Vidal was subject to much less overcome by

coercive tactics. His requests to get dressed, use the bathroom, and take his medication

were honored; he appeared to be calm and was cooperative throughout the questioning;

his wife offered the agents coffee; and his daughter sat on his lap. These facts, and

others, convince us that this was not a custodial situation. See, e.g., Leese, 176 F.3d at

744 (defendant not in custody where, inter alia, her requests were honored and the record

did not show her will was overcome by coercive tactics). And, while we have been given

some pause by the number of agents involved, only three agents were with Vidal in the

kitchen during the questioning.




   2
    We recognize that it is not dispositive that the questioning took place in Vidal's home.
See Orozco v. Texas, 394 U.S. 324, 326-27 (1969) (interrogation was custodial even
though the defendant’s statements were made in his own room at a boarding house,
because officers testified that defendant was not free to go). Nevertheless, the location
clearly made it less likely, given the other circumstances, that a reasonable person in
Vidal’s position would have felt he was unable to end the questioning.

                                              8
       The denial of the motion to suppress will be affirmed.

       B.     Sufficiency of the Evidence

       Vidal also argues that his Hobbs Act convictions should be reversed because the

evidence does not offer “any substantial nexus between the business(es) [extorted by

Vidal] and the possible effect, even marginally, on interstate commerce.” He explains –

and this is the full extent of his argument – that this is so because there was no evidence

that the businesses involved were “customarily engaged in interstate activity” at the time

the various extortions took place. The government responds that this is not the standard

that it need prove only a de minimis effect on interstate commerce as a result of Vidal’s

extortions, which it surely did at trial. We review the evidence to determine whether that

evidence, viewed in the light most favorable to the government, would allow a rational

trier of fact to convict.’” United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001).   The

Hobbs Act states that “[w]hoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity in commerce, by robbery or

extortion or attempts or conspires so to do ... shall be fined under this title or imprisoned

not more than twenty years, or both.” 18 U.S.C. § 1951(a). We have held that the

requisite nexus between extortion and interstate commerce can be found in the depletion

of assets theory, whereby the payment of an extortion demand reduces the assets available

for use by the victim in interstate commerce. See United States v. Jannotti, 673 F.2d 578,

593-94 (3d Cir. 1982) (citing United States v. Cerilli, 603 F.2d 415, 424 (3d Cir. 1979)).



                                              9
In Cerilli, we held that evidence showing that the victims who were extorted could not

use the money paid to the defendant to purchase supplies from out of state vendors was a

sufficient effect on interstate commerce to support a Hobbs Act conviction, even where

that effect was “certainly not very large.” Cerilli, 603 F.2d at 424. And recently in

United States v. Clausen, 328 F.3d 708 (3d Cir.), cert. denied, 124 S.Ct. 256 (2003), we

reaffirmed our holding in United States v. Traitz, 871 F.2d 368 (3d Cir. 1989), that a

Hobbs Act conviction can be predicated upon crimes that have only a de minimis impact

on interstate commerce.

       The evidence in this case was more than sufficient for a rational trier of fact to

have found at least a de minimis impact on interstate commerce. The Hobbs Act counts

for which Vidal was convicted were predicated on his extorting money from four victims.

He extorted $180 from Your Way Construction, a New York company hired to perform

renovations in New Jersey, which brought tools and supplies purchased in New York to

New Jersey, and sub-contracted with a New York electrician to perform repairs in New

Jersey. He extorted $500 from Fenix Bakery, which purchased supplies and services to

service its bakeries in New Jersey and Florida. He extorted $200 from Del Plata Auto

Repair, which purchased auto parts from out of state. And he extorted $100 from the

Made In Ecuador grocery store, which purchased inventory through an importing

company in Florida.

       Each of the extortions prevented the particular victim from using that money in



                                             10
interstate commerce as was its ordinary course of business. Furthermore, each victim was

also affected by the delay caused by Vidal’s refusal to issue permits: Your Way

Construction was prevented from working on other sites, and Fenix Bakery, Del Plata

Auto Repair, and Made In Ecuador were each closed down for repairs for longer than

they would have been had it not been for Vidal’s demands. Each of the delays caused a

loss of revenue as well.

       The evidence that Vidal’s extortions affected interstate commerce was sufficient.




                                  III. CONCLUSION

       The judgment of sentence will be affirmed.




TO THE CLERK OF THE COURT:

       Kindly file the foregoing Opinion.




                                            /s/ Maryanne Trump Barry
                                            Circuit Judge
USA v. Vidal, No. 03-1071 (11/18/03) - DISSENT




RENDELL, Circuit Judge, Dissenting:

       Because I believe that the circumstances surrounding Vidal’s interrogation

amounted to a custodial setting, I respectfully dissent. Line drawing in these types of fact

patterns is admittedly not an exact science. Discerning whether a defendant was in

custody can be a challenge in some cases, but this is not one of them. Putting ourselves in

the place of the reasonable person, unschooled in analyzing how many officers it takes to

disincentivize movement, let alone flight, Vidal was undoubtedly confined.

       To my mind, the majority commits a fundamental error by viewing this case

subjectively, rather than objectively as we must. Stansbury v. California, 511 U.S. 318,

323 (1994) (“Our decisions make clear that the initial determination of custody depends

on the objective circumstances of the interrogation, not on the subjective views harbored

by either the interrogating officers or the person being questioned.”). The panel’s

observations that Vidal’s will was not overborne, that he “appeared calm,” that he offered

coffee to his interrogators, and that his daughter sat on his lap, are neither necessarily

appropriate indicators of Vidal’s mindset nor, more importantly, are they relevant to our

analysis. What was on his mind, or his daughter’s for that matter, are simply not germane




                                              2
    to our review.3 Our charge is to look at the facts objectively, as the panel itself

    acknowledged by referencing Stansbury. The facts here, viewed objectively, indicate a

    custodial setting.

           Fourteen agents executed a search warrant at 6:15 a.m. The agents spent a total of

    three hours with Vidal. Three officers who had previously “visited” him surrounded him

    at his kitchen table and then took him to his office to get his computer. Simply put, this

    third visit in four months reflected an escalation in force, a “bearing down” on him. See

    United States v. Leese, 176 F.3d 740, 744 (3d Cir. 1999) (noting that “[t]he more cause

    for believing the suspect committed the crime, the greater the tendency to bear down in

    interrogation and to create the kind of atmosphere of significant restraint that triggers

    Miranda” (quoting Steigler v. Anderson, 496 F.2d 793, 799 (3d Cir. 1974)). His

    movements around the house were closely monitored such that, objectively, could he have

    felt, for even one moment, able to leave the scene? Indeed, his wife was not even

    permitted to retrieve a book from her car for their daughter without agents accompanying

    her. What would one accused of tax fraud assume all these agents were trying to prevent,

    if not movement and flight? The fact that these events took place in Vidal’s home is of

    no moment. The agents effectively transformed the house into an occupied outpost.

           We have “signaled our preference for an accusatorial rather than an inquisitorial




       3
1       Indeed, Vidal testified that he believed he was under arrest, and the District Court did
2   not question his credibility.

                                                  3
system of justice.” Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 (1964), overruled on

other grounds by United States v. Balsys, 524 U.S. 666, 690 (1998); see also Rogers v.

Richmond, 365 U.S. 534, 541 (1961) (observing “that ours is an accusatorial and not an

inquisitorial system” of criminal justice). Miranda makes that preference a reality.

Miranda v. Arizona, 384 U.S. 436 (1966). Dickerson makes it a constitutional mandate.

Dickerson v. United States, 530 U.S. 428, 444 (2000). Here, the prosecution convicted

Mr. Vidal based on its inquisitorial tactics, because the things he admitted while sitting at

that kitchen table may well have sealed his fate.4   I do not think the majority’s reasoning

does justice to this constitutional principle.




4
 The accountant’s credibility was vigorously attacked by the defense, and Vidal’s
admissions were emphasized in the prosecutor’s opening and closing statements.

                                                 4
TO THE CLERK OF COURT:

      Please file the foregoing dissenting opinion.




                                         /s/ Marjorie O. Rendell
                                         Circuit Judge

Dated: January 27, 2004




                                            5
