Opinion
01 Cr. 401 (JFK)
January 22, 2002
Attorney(s) for Plaintiff, JAMES B. COMEY United States Attorney for the Southern District of New York New York, New York, Of Counsel: Deirdre A. McEvoy Jay K. Musoff Assistant United States Attorneys.
Attorney(s)For the Defendant, Bryan Cave LLP, New York, New York, Of Counsel: James R. DeVita, Sarah P. Swanz.
OPINION and ORDER
Background
Defendant is indicted for an alleged conspiracy to commit mail fraud in connection with an insurance fraud scheme which took place from February 1996 until January 2000. Defendant is a public adjustor who allegedly negotiated the settlement of insurance claims regarding water damage at 1545 East 13th Street, Brooklyn, New York, knowing that the claims were false and fraudulent. Defendant has moved to suppress statements allegedly made to Special Agent Kevin O'Grady of the Federal Bureau of Investigation ("FBI") on April 13, 2000 and April 17, 2000.
Facts
At the evidentiary hearing on the motion, three witnesses testified: Shaya Dov, FBI Agent Kevin O'Grady and the defendant. Dov, a friend of the defendant, is an oft-convicted felon who was cooperating with the Government. O'Grady asked Dov to tape-record defendant Roth as part of his investigation into the insurance fraud scheme. (Tr. 14). Because Dov was friends with Roth, he told O'Grady that he would prefer not to tape-record Roth. (Tr. 14, 70, 71, 189). O'Grady told Dov to bring Roth to a meeting and Dov drove Roth to Cadman Plaza in Brooklyn, New York where they met O'Grady. (Tr. 15, 75, 164). This was on April 12, 2000.
"Tr." refers to the page number of the transcript at the hearing.
Agent O'Grady entered Dov's car, sat in the backseat, and identified himself. He did not show a weapon. O'Grady told Roth that he was conducting an insurance fraud investigation and that Roth's name had surfaced. (Tr. 15, 16). Agent O'Grady told him that the investigation would result in several people, including Roth, facing charges and possibly jail time. O'Grady explained that he was interested in Roth's cooperation and giving Roth the first chance, and by "being the first guy in, he might have an opportunity to avoid the jail (time] that everybody else was facing." (Tr. 17, 165). Roth substantially confirms Agent O'Grady's testimony regarding that part of the meeting. (Tr. 165).
Agent O'Grady told Roth that he had a right to talk to a lawyer, but explained to Roth that for his safety and for the secrecy of the investigation, Roth should find a trustworthy attorney who would have Roth's — as opposed to others' — "best interests at heart." (Tr. 17). O'Grady said that in his experience there were leaks in investigations and that sometimes those leaks came from the lawyers. (Tr. 17-18). Agent O'Grady suggested that Roth might want to contact Dov's lawyer, Patrick Burke, Esq., who was an individual that Agent O'Grady thought could be trusted. (Tr. 18). Agent O'Grady explained to Roth that while Burke most likely would not be able to represent him, Burke could probably put Roth in touch with somebody who was "trustworthy." (Tr. 18). O'Grady said that if Roth chose the "wrong" lawyer, he would not be able to cooperate. (Tr. 17-18).
This meeting lasted some 20 minutes and Agent O'Grady did not ask Roth any questions about the case, nor did Roth say anything about the case. During the meeting, Roth did not ask for a lawyer and Agent O'Grady did not tell Roth that he could not cooperate if he had a lawyer. (Tr. 18).
Later on April 12, Roth called Dov saying that he was interested in learning more about his options. He asked Dov to contact Agent O'Grady to set-up another meeting. Dov called Agent O'Grady and a meeting was set for that afternoon. (Tr. 78).
This second meeting on April 12 between Agent O'Grady and Roth lasted approximately 20 minutes. It took place in the parking lot of a supermarket off the Belt Parkway in Brooklyn. (Tr. 20-21, 22). At this second April 12 meeting, Roth asked Agent O'Grady about his options, particularly regarding his public adjustor's license. (Tr. 22). Agent O'Grady told Roth that he did not think that he would be able to keep his license, and that although he was not responsible for charging decisions, in his experience Roth would probably be charged with a felony. Agent O'Grady said that Roth was facing several years in jail if convicted on these charges and that, in his opinion, Roth would go to jail if he did not cooperate. (Tr. 22). During this second meeting, Agent O'Grady did not question Roth about the case, nor did Roth make a statement about his involvement in any insurance fraud scheme. (Tr. 23).
On the morning of April 13, 2000, Roth called Dov. He said he wanted to tell Agent O'Grady "everything." (Tr. 80, 182, 187). Dov called Agent O'Grady at Roth's request. A meeting was set for the afternoon on Bushwick Avenue and the Interboro Parkway in Brooklyn. (Tr. 24). This meeting took place in broad daylight. (Tr. 182). Dov drove Roth to the April 13 Interboro meeting in his car. (Tr. 24). Agent O'Grady, dressed in casual clothes with his weapon concealed, drove alone to the meeting in an unmarked car. (Tr. 24-25).
Mr. Roth and Agent O'Grady spoke outside O'Grady's car and Roth told O'Grady that he was willing to tell him what happened with the insurance fraud. Roth then told Agent O'Grady about his involvement in the fraud. (Tr. 24, 25). Dov was not present during much of the conversation. (Tr. 25, 80-81, 186). Agent O'Grady testified that he only asked Roth a few questions on April 13 as Roth told him about the insurance fraud. The meeting lasted some 40 minutes. (Tr. 25, 26, 27).
Agent O'Grady took Roth's cell phone number and told him he would contact him if there were other questions. (Tr. 27). Roth did not ask for a lawyer nor did O'Grady make any promises or commitments at the meeting. Roth testified that Agent O'Grady told him it was "no problem" if Roth spoke with counsel, but that once a lawyer was involved, all communications would go through the lawyers. (Tr. 168).
After the third meeting, Roth and Dov drove to Roth's house in Brooklyn. On the way, Dov called his lawyer, Patrick Burke, Esq., for a recommendation for an attorney for Roth. (Tr. 81, 188, 194; see also Govt. Ex. 1). Mr. Burke supplied the names of two attorneys whom he recommended (Govt. Ex. 1), and Dov called one of them to make an appointment for Roth. (Tr. 81-82).
The fact of this contact is undisputed, but there is some disagreement over the timing of the phone call. Roth recalls that Dov called James DeVita, Esq., to set up an appointment for Roth before the first meeting with Agent O'Grady. Dov recalls contacting the two attorneys recommended by Mr. Burke after Roth's third meeting (the Interboro meeting) with Agent O'Grady. (Tr. 81, 188, 195).
Roth made an appointment with one of the lawyers for' Friday, April 14, 2000, but that lawyer called and cancelled the appointment. (Tr. 82). Roth then attempted to schedule an appointment that day with the other attorney (Mr. DeVita). He was told to call back on Monday, April 17, 2000. (Tr. 82). On Sunday, April 16, 2000, Dov left the New York area. (Tr. 82).
At some point on Monday, April 17, Roth scheduled an appointment to meet with Mr. DeVita on April 18. Roth did not keep this appointment. (Tr. 194-195).
It is unclear whether the appointment was scheduled before or after Roth met O'Grady on April 17, 2000. But there is no dispute that Roth never mentioned to Agent O'Grady that he had an appointment with Mr. DeVita on April 18, 2000. (Tr. 197). Roth never met with Mr. DeVita on April 18.
On April 17, 2000, Agent O'Grady contacted Roth to arrange a fourth meeting to ask him some additional questions. The meeting was at the same shopping center parking lot where they had met on the afternoon of April 12. Agent O'Grady, again with his weapon concealed, drove to the meeting by himself in the same unmarked government vehicle. (Tr. 28). Roth left his car and entered the front passenger seat of Agent O'Grady's car where O'Grady asked Roth questions which Roth answered. (Tr. 28, 29, 188-189).
At the end of the fourth meeting, Agent O'Grady told Roth that he would be meeting with the United States Attorney's Office to discuss how the case should proceed. (Tr. 29). Agent O'Grady told Roth that the latter would have to speak with the U.S. Attorney's Office, and that if he did not have a lawyer at that point, Agent O'Grady would speak with the U.S. Attorney's Office about having a lawyer appointed for Roth. (Tr. 29). During this conversation Roth did not mention that he had a lawyer. (Tr. 30). Roth testified he did not tell Agent O'Grady that he had an appointment with Mr. DeVita for the next day. (Tr. 174, 197).
Mr. Roth admits meeting O'Grady because he was interested in securing a cooperation agreement so as to avoid going to jail. (Tr. 192). Roth did not meet with Mr. DeVita on April 18, but a few weeks later they did meet. (Tr. 196).
When O'Grady learned that Roth had counsel, he ceased contact with Roth. (Tr. 31-32).
Roth ultimately changed his mind about cooperating with the Government (Tr. 193), and has moved to suppress his statements made to Agent O'Grady at the third and fourth meetings.
Discussion
The well known warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), do not apply here — the statements were made in a non-custodial setting. The issue is solely voluntariness.
In no sense of the term were the Roth statements of April 13 and April 17, 2000 the products of coercion. Coercion involves involuntariness. A statement is "involuntary" under the umbrella of the Fifth Amendment if obtained by "`techniques and methods offensive to due process' or under circumstances in which the suspect clearly had no opportunity to exercise `a free and unconstrained will.'" Oregon v. Elstad, 470 U.S. 298, 304 (1985) (quoting Haynes v. Washington, 373 U.S. 503, 515 (1963)). Confessions are not involuntary because the accused was promised leniency for cooperating. United States v. Bye, 919 F.2d 6, 9 (2d Cir. 1990). The closest case to this is United States v. Guarno, 819 F.2d 28 (2d Cir. 1987). There, a confession was held voluntary where law enforcement officers stated that they would withdraw an offer of leniency if the defendant consulted a lawyer. Id. at 30. In Guarno, the Second Circuit observed that "law enforcement officials have legitimate reasons for protecting the secrecy of ongoing investigations." Id. at 31.
United States v. Anderson, 929 F.2d 96 (2d Cir. 1991), upon which the defendant relies is not applicable here. There, the agent made statements creating in the defendant's mind "a false sense that he might confess at that moment or forfeit forever any future benefit that he might derive from cooperating." Id. at 100. This is not our case.
Mr. Roth was never interrogated in a custodial setting nor a hostile or coercive environment. During the first two meetings, he was not even questioned.
The circumstances leading to the statements of April 13 and 17 show that the confession was freely made and completely voluntary.
No physical force or trickery was involved and neither Agent O'Grady nor Dov misled Roth. Roth was not lied to.
A fair analysis of the record at the hearing discloses that the statements were voluntary and that Roth made them because he initially wanted to cooperate. His change of mind does not cause the earlier statements to be involuntary.
The motion to suppress is denied in all respects.
SO ORDERED.