Case 2:15-cr PD Document 38 Filed 10/16/15 Page 1 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

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1 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 1 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA : UNITED STATES OF AMERICA : : v. : Criminal No. 2:15-cr PD : DMITRIJ HARDER : : ORDER AND NOW, this day of 2015, upon consideration of Defendant Dmitrij Harder s Motion to Suppress Statement of February 26, 2010, it is hereby ORDERED that said motion is GRANTED. It is further ORDERED that all statements made by the Defendant to federal agents on February 26, 2010, including but not limited to those summarized in the FBI-302 memorandum of interview, are SUPPRESSED. BY THE COURT: HONORABLE PAUL S. DIAMOND United States District Court Judge

2 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 2 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA : UNITED STATES OF AMERICA : : v. : Criminal No. 2:15-cr PD : DMITRIJ HARDER : Oral Argument Requested : DEFENDANT DMITRIJ HARDER S MOTION TO SUPPRESS Pursuant to Fed. R. Crim. P. 12(b)(3)(C), defendant Dmitrij Harder ( Mr. Harder ), by and through his undersigned counsel, moves to suppress statements he gave to federal agents at John F. Kennedy International Airport, which were memorialized in an FBI-302 memorandum of interview, because they were made during a custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny. In support thereof, Mr. Harder relies upon the accompanying memorandum of law.

3 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 3 of 19 suppress. WHEREFORE, Mr. Harder respectfully moves for an Order granting his motion to Respectfully submitted, BLANK ROME LLP By: /s/ Ian M. Comisky Ian M. Comisky Matthew D. Lee One Logan Square, 130 N. 18 th Street Philadelphia PA Phone: (215) Fax: (215) Comisky-im@blankrome.com Lee-m@blankrome.com LACHEEN, WITTELS & GREENBERG, LLP By: /s/ Stephen LaCheen Stephen LaCheen 1429 Walnut Street, 13th Floor Philadelphia, PA slacheen@slacheen.cnc.net (215) Attorneys for Dmitrij Harder 2

4 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 4 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA : UNITED STATES OF AMERICA : : v. : Criminal No. 2:15-cr PD : DMITRIJ HARDER : Oral Argument Requested : DEFENDANT DMITRIJ HARDER S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO SUPPRESS Pursuant to Fed. R. Crim. P. 12 (b)(3)(c), defendant Dmitrij Harder, by and through his undersigned counsel, respectfully moves to suppress statements he gave to federal agents at JFK International Airport that were memorialized in an FBI-302 memorandum of interview. Using Mr. Harder s entry into the United States as a vehicle for improper custodial interrogation, the agents went far beyond asking Mr. Harder about his immigration status or whether he was attempting to improperly import items into the United States (the scope of permissible border questioning). Mr. Harder was interrogated at length about his employment, business dealings, communications, and even where he maintained bank accounts all as part of an investigation into whether Mr. Harder violated the Foreign Corrupt Practices Act ( FCPA ), of which he currently stands charged. At no time during this custodial interrogation was Mr. Harder permitted to leave, have a drink of water, or make a telephone call, nor was he ever advised of his Miranda rights. Because this was a custodial interrogation outside the scope of the Third Circuit s law on permissible questioning at the border, and because Miranda warnings were never provided, Mr. Harder s statements must be suppressed.

5 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 5 of 19 In connection with this suppression motion, Mr. Harder also requests that the Court order the government to provide him with certain discovery, described below, to aid in addressing the issues raised herein and that an evidentiary hearing be convened. FACTUAL BACKGROUND A. The Joint United Kingdom-United States Investigation into Allegedly Corrupt Payments in Connection with the European Bank for Reconstruction and Development According to a search warrant affidavit obtained and executed by the government in its investigation into Mr. Harder, on or about February 8, 2010, the Office of Chief Compliance for the European Bank for Reconstruction and Development ( EBRD ), located in London, England, apparently received an anonymous tip that one of its employees, known in the Indictment as EBRD Official, had received allegedly corrupt payments from Mr. Harder allegedly in return for EBRD Official s support of certain EBRD projects. The source claimed that the allegedly corrupt payments were deposited into bank accounts maintained by the sister of the EBRD Official, known in the Indictment as EBRD Official s Sister. Approximately one week later, on or about February 15, 2010, the EBRD advised the City of London Police, Overseas Anti-Corruption Unit in the United Kingdom ( CoLP ), of the allegations involving EBRD Official, his sister, and Mr. Harder. Approximately four days later, on or about February 19, 2010, CoLP advised the U.S. Department of Justice and FBI of the allegations. The FBI thereafter initiated an investigation. On or about February 26, 2010, CoLP arrested EBRD Official and EBRD Official s Sister and simultaneously executed search warrants at their homes in the United Kingdom. 2

6 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 6 of 19 B. Upon Entering the United States at JFK Airport, Mr. Harder Is Detained for Hours and Subjected to Custodial Interrogation by Federal Agents At just before 6:00 p.m. on February 26, 2010 the same day that EBRD Official and EBRD Official s Sister had been arrested by CoLP, and their homes searched Dmitrij Harder arrived in the United States at John F. Kennedy International Airport on a flight from Moscow. He had just spent the past ten days traveling for business in Moscow, London, and Baku, Azerbaijan, and was looking forward to the final two hours of his trip a drive to his home in Huntingdon Valley, Pennsylvania, where he lives with his wife and three children. When Mr. Harder approached passport control at JFK Airport, a U.S. Customs and Border Protection ( CBP ) officer informed Mr. Harder that he needed to speak CBP officers separately. The CBP officer took all of Mr. Harder s documents passport, green card, and customs declaration and escorted Mr. Harder into a large room. Mr. Harder waited approximately 40 to 45 minutes and then asked what was happening; he was then told that they were on their way to talk to him. After waiting for about an hour without being able to use his phone Mr. Harder was met by three plainclothes officers, who introduced themselves to Mr. Harder. The FBI 302 identifies them as Federal Bureau of Investigation ( FBI ) Special Agent Michael P. DiCaprio; Immigration and Customs Enforcement ( ICE ) Special Agent Peter Angelino; and Port Authority Detective Shawn Russell. 1 The FBI 302 also notes that a fourth agent, CBP Officer Segui, was present during the interrogation. The four officers escorted Mr. Harder to a small, windowless room, where the officers were positioned surrounding Mr. Harder. 1 The FBI 302 merely identifies the third individual as Detective Shawn Russell, but an Internet search confirms that he is employed by the Port Authority of New York and New Jersey. 3

7 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 7 of 19 The interrogation of Mr. Harder was done by FBI Special Agent DiCaprio. All four law enforcement officials, were present in the room, and the FBI Special Agent posed the questions and took detailed notes. The FBI Special Agent came prepared and had a stack of papers in front of him. Initially, the FBI Special Agent s questions were very general: Mr. Harder was asked where he was from, where he went to school, who he was married to, how many children he has, and how he first came to the United States. Then, the questions continued and expanded into detailed inquiries about his employment where Mr. Harder worked now, where he worked previously, who is his boss and about whether Mr. Harder had engaged in any conduct that would be a violation of the FCPA or other laws. Having absolutely nothing to do with his status to enter the country or anything in his possession at the time of entry, Mr. Harder was questioned about who he knows, who he works with, where he has bank accounts, and what specific projects Mr. Harder was working on himself and involving EBRD. The FBI Special Agent had bank account records of Mr. Harder and showed him wire transfer records with respect to an account that he controlled. In total, the questioning was conducted for approximately one and one-half hours, and Mr. Harder was detained in total for approximately three hours. During this time, Mr. Harder was never advised of the purpose of the questioning, and he was never given Miranda warnings. Mr. Harder made several basic requests, all of which were denied. He asked for water several times, and the officers always refused. Their answer to a request for water was that the questioning would not take long, and Mr. Harder should just wait. Likewise, Mr. Harder requested permission to telephone his wife; she had been expecting him, given that he had been detained beyond expected airport delays. Again, Mr. Harder was told to wait, and that the interview would not take much longer. At the conclusion of the interview, after approximately 4

8 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 8 of 19 three hours of detention, Mr. Harder was served with three subpoenas issued by a grand jury empaneled in the Eastern District of Pennsylvania. C. The FBI 302 of Dmitrij Harder In discovery, the government provided Mr. Harder with a six-page memorandum of his interview at JFK Airport on February 26, This memorandum, memorialized on a standard FBI 302 form, indicates that it was prepared by Detective Shawn Russell, ICE SA Peter Angelino, [and] SA Michael P. DiCaprio;mpd and bears a date of transcription of February 27, Along with personal identifying information, the FBI 302 includes a tremendous amount of detail about Mr. Harder having nothing to do with his immigration status (green card holder) to enter the country. The FBI asked Mr. Harder about when he met his current wife; how long he has been married; the number of children he has with his ex-wife and current wife; and where he was educated. Mr. Harder was then questioned about his employment history since 1994; his duties at those prior employers; how and when he founded his current employer, Chestnut Consulting Group, Inc. ( Chestnut ); how Chestnut conducts its business; how Chestnut pays its employees and consultants; the names of Chestnut s current clients; the names of some of Chestnut s producing agents ; how Chestnut is compensated by its clients and the manner that compensation is paid; the banks where Chestnut holds accounts; and Chestnut s current projects. Many of the questions the FBI Special Agent asked were targeted and specific. For example, the FBI Special Agent asked what producing agents [Mr. Harder] worked with in the past, and Mr. Harder provided four names. Then, the FBI Special Agent asked him to elaborate on his relationship with only one of those named individuals, the EBRD Official s Sister (eventually named as such in the Indictment), and did not ask about the other three. Similarly, 5

9 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 9 of 19 the FBI Special Agent asked [Mr. Harder] to explain what projects [Chestnut] is currently involved in, and Mr. Harder explained that he traveled to Moscow and London for one project and Baku for a separate project. Then, the FBI Special Agent asked for more details only about the project in Baku, and not the project discussed in Moscow and London. After being asked to provide more description about the project in Baku, Mr. Harder noted that he worked with two investment bankers, one of whom was the EBRD Official (eventually named as such in the Indictment). Then, the FBI Special Agent asked Mr. Harder more questions only about the EBRD Official, and not the other investment banker, and did not disclose to Mr. Harder until the very end of the interview that the EBRD Official was arrested on that same day in London. The FBI Special Agent told Mr. Harder that the EBRD Official s Sister had also been arrested that day after having asked Mr. Harder how he paid the EBRD Official s Sister (when, how much, and in what manner). The FBI 302 also states that Mr. Harder was not aware that [EBRD Official s Sister] and [EBRD Official] were related. At the completion of the interview, the FBI 302 notes that the agents served Mr. Harder, as the Custodian of Records for [Chestnut], with three grand jury subpoenas that ordered him to appear at the grand jury on March 4, The agents also obtained from Mr. Harder the mobile telephone number for the EBRD Official s Sister and copies of his driver s license and business card. D. The Grand Jury Investigation and Indictment of Mr. Harder As part of the grand jury investigation conducted in this district, the FBI obtained search warrants directed to Google, Inc. and another Internet provider, seeking complete accounts used by Mr. Harder and the EBRD Official. In the affidavit submitted in support of both search 6

10 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 10 of 19 warrants, an FBI Special Agent relied upon Mr. Harder s statements to the agents at JFK Airport on February 26, 2010: V. Harder s Statement 58. As stated above, on or about February 26, 2010, Harder was questioned by the FBI and stated that he paid [EBRD Official s Sister] over $1 million in 2007 or 2008 for assisting him in setting up an online mortgage brokerage company in Russia, but made no other payments or wire transfers to Sanderson. Harder also stated that he was not aware that [EBRD Official] and [EBRD Official s Sister] were related. Based on the foregoing, it is believed that Harder made a false statement about the wire transfers he made to [EBRD Official s Sister], including more than $2.7 million Harder sent to [her] in It is further believed that Harder made a false statement about not being aware that [EBRD Official] and [EBRD Official s Sister] were related. The Honorable L. Felipe Restrepo found that probable cause existed and authorized the FBI to execute search warrants directed to Google, Inc. and a second Internet provider. 2 On January 6, 2015, Mr. Harder was charged in a fourteen-count indictment, along with two notices of forfeiture, with conspiracy to violate the FCPA and Travel Act, substantive violations of the FCPA and Travel Act, conspiracy to commit international money laundering, international money laundering, and aiding and abetting. 2 Mr. Harder may file a separate motion to suppress the searches. 7

11 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 11 of 19 ARGUMENT I. FEDERAL AGENTS VIOLATED MR. HARDER S MIRANDA RIGHTS BY CONDUCTING A CUSTODIAL INTERROGATION AT JFK AIRPORT A. Although Questioning at the Border Does Not Fall Under Normal Miranda Rules, Miranda Is Still Required for Questioning Solely Directed to Criminal Activity. Although the Third Circuit has acknowledged that the normal Miranda rules are inapplicable to circumstances where border inspectors question persons seeking entry into the United States, United States v. Kiam, 432 F.3d 524, (3d Cir. 2006) (describing the responsibility of immigration or customs agents and explaining that while persons questioned are unquestionably in custody... normal Miranda rules simply cannot apply to this unique situation at the border ), inspectors can cross a line where Miranda warnings are required even when the questioning occurs at the border. Id. at 530; accord United States v. St. Vallier, 404 Fed. Appx. 651, 656 (3d Cir. 2010) ( In Kiam, we acknowledged that at some point a line must be drawn after which Miranda requirements might apply even in the context of border questioning ); United States v. Molina-Gomez, 781 F.3d 13, 22 (1st Cir. 2015) (holding that while the Miranda rules are relaxed at the border, [r]elaxed rules, however, do not mean no rules ). It is the line between border questioning focused on whether the individual may be admitted to the United States and potential criminal conduct that is the key inquiry: If the inspector s questions objectively cease to have a bearing on the grounds for admissibility and instead only further a potential criminal prosecution, however, this line has been crossed. Kiam, 432 F.3d at 530 (emphasis added). An alien seeking entry to the United States must convince a border inspector of his or her admissibility to this country by affirmative evidence. Id. at 529 (citing 8 C.F.R. 8

12 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 12 of (d)(1) ( Each alien seeking admission must establish to the satisfaction of the inspecting officer that the alien is entitled, under all of the applicable provisions of the immigration laws and this chapter, to enter the United States )). Customs is also permitted to search for and seize contraband at the border. St. Vallier, 404 Fed. Appx. 657, n.7 (citing 19 U.S.C and 19 C.F.R & ). Therefore, the normal restraint on freedom of movement of the degree associated with a formal arrest is not implicated, because, at the border and particularly with aliens, questioning and delay is the norm. Kiam, 432 F.3d at 530 (citing California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977))). The controlling case in the Third Circuit is Kiam, where a non-u.s. citizen arrived at the Philadelphia area and was escorted by CBP inspectors to secondary inspection. Kiam, 432 F.3d at 526. In the previous week, the agents had uncovered several alien smuggling schemes whose characteristics matched those of Kiam and others he was traveling with. Id. Kiam was interrogated by a CBP officer for 25 minutes about where he traveled and whether he knew the others with whom he was traveling. Id. at When Kiam provided information that conflicted with what his traveling partners stated, Kiam admitted to helping them illegally enter the United States. Id. The CBP officer then contacted a Special Agent from ICE who, after determining that Kiam did not want an interpreter, administered Miranda warnings. Id. The Special Agent then interrogated Kiam for three hours, and he eventually confessed to the scheme. Id. The Third Circuit concluded that this was proper within the modified Miranda rules applicable to border inspections and questioning, because the CBP officer ceased questioning about administrative admissibility and called in a criminal investigator who administered Miranda warnings. Id. 9

13 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 13 of 19 The only other opinion in this Circuit located by Mr. Harder is the unpublished decision in St. Vallier. There, the defendant entered the country with two others. When taken to a secondary room, a Customs Officer questioned St. Vallier about his travels and, after he denied knowing a co-defendant, the Customs Officer confronted St. Vallier with a travel itinerary located in his checked bag. St. Vallier then acknowledged knowing the co-defendant. Having received a false answer to a question relating to entry into the United States, the Customs Officer then conducted a personal search of St. Vallier, finding a plane ticket and several thousand dollars in cash. When drugs were discovered on the co-defendant, all questioning ceased, Miranda warnings were issued, and St. Vallier and two others were arrested. The Court reasoned that the questioning prior to finding the cocaine was still integral to [the customs officer s] determination of whether St. Vallier s effects could enter the country, and Miranda warnings at that point were not required. St. Vallier, 404 Fed. Appx. at 657 (noting this case was about customs questioning not immigration questioning, like Kiam). When there has been an admission of criminal conduct or discovery of drugs, these may represent a transition point after which questioning could only practically relate to a potential prosecution, and Miranda warnings would be required. Id. at 658. The Court held that the line was not crossed. Id. at 657 (emphasis added). Whatever the line, the government conducted a custodial interrogation of Mr. Harder that violated the modified Miranda rules applicable at the border. The government then used those statements in support of its applications for search warrants, and presumably will seek to introduce Mr. Harder s statements at trial. For the reasons set forth below, all of Mr. Harder s statements to federal agents on February 26, 2010, must be suppressed. 10

14 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 14 of 19 B. Mr. Harder Was Subject to Custodial Interrogation Outside the Scope of Any Relaxed Rules at the Border. Mr. Harder begins with what should be common ground: he was in custody when he entered the country. An individual is in custody if, given the circumstances surrounding the interrogation, a reasonable person would have felt that he or she was not at liberty to terminate the interrogation and leave. St. Vallier, 404 Fed. Appx. at (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)). Custody exists at a formal arrest or any restriction of movement to the degree associated with a formal arrest. Molina-Gomez, 781 F.3d at 18. Relevant considerations in determining custody include[e], but are not limited to, whether the suspect was questioned in a familiar or at least neutral surroundings, the number of law enforcement officers present at the scene, the degree of physical restraint placed upon the suspect, and the duration and character of the interrogation. Id. at 22 (citation and quotation marks omitted). Mr. Harder was clearly in custody and subject to custodial interrogation. 3 The issue is whether the line had been crossed and, in this regard, a recent First Circuit decision, United States v. Molina-Gomez, is instructive. Molina-Gomez, 781 F.3d 13. There, the defendant was taken to secondary inspection and placed in a small, windowless room, approximately ten-feet-by-ten-feet, with at least two [Customs and Border Protection] officers. Id. at 22. He was held there for one and one-half to two hours, where the questioning morphed from admissibility questions to possible drug smuggling activity. Id. at 22, 23. The First Circuit held that this was custody because the confining character of a Customs questioning cell, combined with the isolation with two probing inspectors creates an oppressive atmosphere that we cannot ignore. Id. at 22 (citation omitted). That he was held for two hours also supported 3 Interrogation, for Miranda purposes[,] refers to express questioning or its functional equivalent. St. Vallier, 404 Fed. Appx. at 656 (quoting Rhode Island v. Innis, 446 U.S. 291, (1980)). 11

15 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 15 of 19 the custody determination because the longer someone is detailed, the more likely he is in custody. Id. Therefore, this was a lengthy detention in a small, windowless room [with] probing questions about potential illegal activity amounted to the suspect being in custody, and Miranda warnings should have been given. Id. at The line noted by Kiam, St. Vallier, and Molina-Gomez was plainly crossed here. The circumstances of how Mr. Harder was detained and questioned is far different from those where the defendant argued that he was in custody merely for being questioned by Immigration Officers (Kiam) or Customs Officers (St. Vallier). And, what happened to Mr. Harder is far more egregious than the questioning in Molina-Gomez, 781 F.3d at 22. Here, Mr. Harder was detained in a small, windowless room, like the defendant in Molina-Gomez, but Mr. Harder was surrounded by four agents not the two in Molina-Gomez, and Mr. Harder was detained for about three hours. He was refused water and the ability to make a phone call. He was not free to leave and was surrounded by law enforcement officials. More importantly, Mr. Harder was not asked routine immigration and entry questions. Indeed, neither an ICE agent nor a CPB officer questioned Mr. Harder at all it was an FBI Special Agent who came specially and prepared (with documents) to question Mr. Harder about suspected FCPA violations. 5 The FBI Special Agent interrogated Mr. Harder at length about his employment and business dealings, asking targeted questions to see if he would admit to having violated the FCPA or other laws. Indeed, the FBI Special Agent had Mr. Harder s bank records, 4 The Molina-Gomez court stated that the questioning was not routine and noted questions probing their suspicions of Molina s involvement with drug smuggling. Id. Although this Circuit does not follow the routine v. nonroutine dichotomy, Kiam, 432 F.3d at 530, the observation about non-routine questions by the Molina-Gomez court was not controlling to its decision. 5 Generally, U.S. Immigration and Custom Enforcement, which is part of the Department of Homeland Security, is responsible for enforcing U.S. immigration and customs laws, not the FBI. 12

16 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 16 of 19 which have nothing to do with the question of whether Mr. Harder was authorized to enter the United States. Furthermore, the interview was no mere coincidence. The FBI unquestionably coordinated its activities with its counterpart in the United Kingdom, as Mr. Harder s questioning occurred on the same day that the EBRD Official and the EBRD Official s Sister were arrested in the United Kingdom and their homes subjected to search warrants. Moreover, the sheer length of the FBI-302 nearly six pages, single-spaced confirms that the questioning went far beyond immigration issues and focused in on Mr. Harder s interactions with EBRD Official and EBRD Official s Sister in the context of an ongoing, jointly-conducted criminal investigation by United States and United Kingdom authorities. The government was entitled to question Mr. Harder, but it had to proceed with the inconvenience of providing Miranda warnings before subjecting him to custodial interrogation. Mr. Harder has found no case and suggests the government will be unable to find one either ever holding that questioning of this nature was not custodial even in a border setting. The FBI-302 confirms that no Miranda warnings were given. Other than the initial questions about Mr. Harder s family and immediate travel history, none of this information was relevant in any way to Mr. Harder s admissibility to the United States and was elicited only to support criminal investigations already underway in both the United Kingdom and the United States. Mr. Harder s luggage was searched by a CBP Officer, but no contraband or illegal items were found that might have justified detention and questioning, and, even then, the search occurred after he had been detained and the FBI Special Agent concluded his interrogation. Dispositive proof that this interview was plainly part of a criminal investigation comes in the 13

17 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 17 of 19 form of the three grand jury subpoenas served upon Mr. Harder at conclusion of the interrogation as well as the documents in the FBI Special Agent s possession and shown to Mr. Harder during the questioning. These circumstances vault this case well over any prior decision in this Circuit that otherwise upheld the lack of Miranda warnings during a custodial interrogation at the border. That these questions were asked in these circumstances without Miranda warnings requires suppression Mr. Harder s statements made to agents on February 26, II. THE GOVERNMENT SHOULD BE ORDERED TO PROVIDE DISCOVERY PERTAINING TO THE ISSUES RAISED IN THIS SUPPRESSION MOTION In connection with this suppression motion, Mr. Harder respectfully requests that the Court order the government to provide certain discovery regarding the issues raised in this motion. First, Mr. Harder requests access to the room at JFK Airport where he was interrogated on February 26, A site visit will assist Mr. Harder and his counsel in creating a visual aid to support the fact that Mr. Harder was in custody. Second, Mr. Harder requests that the government be ordered to provide any audio or video recording of the custodial interrogation. Third, Mr. Harder requests that the government be ordered to provide discovery of any rough notes made by the agents during the interrogation. Fourth, the government should be ordered to provide copies of any documents possessed by the FBI Special Agent at the time of questioning. Fifth, Mr. Harder requests that the government be ordered to provide discovery of all communications (written, oral, or electronic) between the FBI and CoLP in advance of Mr. Harder s arrival at JFK Airport on February 26, Given the obvious coordination between the U.S. and U.K. that took place on February 26, Mr. Harder believes that significant communications must have taken place between the FBI and CoLP leading up to Mr. Harder s arrival at JFK Airport, and that these communications will support Mr. Harder s position that he was subject to custodial interrogation regarding a criminal investigation on February 26, rather 14

18 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 18 of 19 than merely being questioned at the border as to his immigration status. Finally, Mr. Harder requests that an evidentiary hearing be held to determine the facts of this custodial interrogation. CONCLUSION WHEREFORE, Mr. Harder respectfully requests that this motion be granted. October 16, 2015 Respectfully submitted, BLANK ROME LLP By: /s/ Ian M. Comisky Ian M. Comisky Matthew D. Lee One Logan Square, 130 N. 18 th Street Philadelphia PA Phone: (215) Fax: (215) LACHEEN, WITTELS & GREENBERG, LLP By: /s/ Stephen LaCheen Stephen LaCheen 1429 Walnut Street, 13th Floor Philadelphia, PA (215) Attorneys for Dmitrij Harder 15

19 Case 2:15-cr PD Document 38 Filed 10/16/15 Page 19 of 19 CERTIFICATE OF SERVICE I hereby certify that on this 16th day of October, 2015, I caused a true and correct copy of the foregoing to be served upon the following by way of the Court s ECF filing system: Michelle Morgan U.S. Attorney s Office 615 Chestnut St. Suite 1250 Philadelphia, PA Jason D. Linder U.S. Department of Justice 1400 New York Avenue, N.W. Washington, D.C /s/ Matthew D. Lee Matthew D. Lee 16