Saturday December 8, 2012

BRATTLEBORO -- Lawyers for a Brattleboro man accused of distributing child pornography are asking a federal court to suppress statements he made to investigators.

According to court documents, Sergi Samuel, 51, was not read his Miranda warnings on Aug. 8 when FBI agents entered his home and served a search warrant.

"A reasonable person in Mr. Sergi’s position would have felt he was in custody and effectively under arrest," wrote Assistant Federal Public Defender David McColgin, in the motion. "He was confronted by six to seven investigators who demanded entry into his home, entered with guns drawn saying ‘Nobody move,’ denied the opportunity to review the search warrant, and then took him into a separate room for an hour-long interrogation."

McColgin did not return a pair of phone calls for comment on the case.

According to court documents filed following his arrest, Sergi downloaded and distributed child pornography using file-sharing software. Special agents from the FBI, conducting on several different occasions undercover peer-to-peer operations, downloaded videos of child pornography from a computer located in Sergi’s home.

At least two of the videos found on his computer during a search on Aug. 7 depicted torturous acts on prepubescent children, stated the documents. During the search of his home, Sergi admitted to investigators that he had been downloading child pornography for about five or six years.

"He stated he knew that it was illegal to view child pornography, and that detection by law enforcement was one of his worst fears," stated the documents filed following his arrest.

In the motion to suppress, McColgin wrote that though Sergi was not verbally placed under arrest, he was subjected to custodial interrogation.

"When there is no formal arrest, ‘custody’ for purposes of Miranda focuses on whether there was ‘a restraint of freedom of movement of the degree associated with a formal arrest,’" wrote McColgin.

Though investigators told him he was free to walk around the house, he couldn’t leave the house, wrote Samuel’s legal counsel.

"He was thus a prisoner in his own home and not free to leave. The agents exercised complete control over the residence and established ‘a police-dominated atmosphere.’"

Investigators also told Sergi that they already had evidence that implicated him in the distribution of child pornography.

"As several courts have held, such an awareness by the person being questioned ‘may well lead him to conclude, as a reasonable person, that he is not free to leave ...’" wrote McColgin.

It is also clear, he wrote, that statements made by Sergi were the result of an interrogation, statements that were made "only in response to agents’ questions."

"Mr. Sergi therefore was subject to custodial interrogation, and since he was not first advised of his rights under Miranda, his statements ... must be suppressed," wrote McColgin.

The U.S. Federal Attorney’s Office for the State of Vermont has until Dec. 17 to file its response.

"The government opposes the motion," said Christina Nolan, Assistant U.S. Attorney. "When the facts come out at the hearing, I expect it should be denied, but I will let our filing speak for itself."

Allen Gilbert, the executive director of the American Civil Liberties Union of Vermont, said the Federal Attorney’s Office will have a number of questions to answer in its response.

"On the surface, this appears to be an illegal search and a custodial interrogation and because his Miranda rights were not read, it’s hard to see how the prosecutors will be able to use his statements," said Gilbert.

Of particular interest to Gilbert was the fact the agents didn’t allow Sergi to see the search warrant when they first entered the home.

"Did the defendant ever see the search warrant?" he asked.

But, he added, the motion to suppress doesn’t mention when, if at all, the search warrant was presented to Sergi.

"That’s a loose end," said Gilbert. "What is the reason the motion doesn’t address whether he eventually saw the search warrant?"

Nonetheless, Gilbert was puzzled by the agents’ failure to read Sergi his Miranda rights.

"Miranda has been in effect for 46 years. It’s pretty hard to imagine federal agents are not closely versed in their responsibility to provide a Miranda warning."

Gilbert also said the agents allowing Sergi to move around his house but not leave the building itself was questionable.

"Whey you are essentially imprisoned in your own house it’s hard to believe you can feel free to leave," he said.

Gilbert advised anyone in a similar situation should ask agents if they are free to leave and ask for a yes or no answer.

"If it’s no, then you are under arrest."

Following his arraignment in August, Sergi was released on conditions, which included he submit to home detention and radio frequency monitoring, refrain from unsupervised contact with children and submit to monitoring of his computer.

The investigation was led by the FBI with assistance from the Brattleboro Police Department.

If convicted, Sergi could be sentenced to five to 20 years in prison and be fined up to $250,000.

Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.