Opinion
06 CR 102 (RPP).
January 10, 2007
OPINION ORDER
By motion dated July 14, 2006, Defendant Rosa Abreu moved pursuant to Rule 12(b)(3) of the Federal Rules of Criminal Procedure to suppress statements made to New York City Department of Investigation ("DOI") investigators on August 9, 2005 and August 10, 2005 because: (1) her statements were not voluntary, and the use of such statements is prohibited by the Fifth Amendment due process guarantee; (2) she was not advised of her rights during a custodial interrogation as required by Miranda v. Arizona, 384 U.S. 436, 444 (1966); and (3) her request for an attorney was ignored in violation of the Fifth Amendment. On September 19, 2006 and September 20, 2006, the Court held an evidentiary hearing to determine whether there were facts sufficient to suppress the statements made to DOI investigators. At the hearing, DOI officials Robert Roaca Dennis Curran, and Byron Biggerstaff testified for the Government, and Rosa Abreu testified for the defense. The Court then requested supplemental briefings, which were submitted on October 11, 2006. For the reasons that follow, Ms. Abreu's motion to suppress her statements made to DOI investigators is denied.
I. BACKGROUND
In late 2004, New York City Department of Investigation ("DOI") officials commenced an investigation into computer services contracts that the Office of the Chief Medical Examiner ("OCME") had awarded to three companies controlled by Mohammed Naseh that were suspected of bid rigging: Comprehensive Computer Resources ("CCR"), Infotech, and HS Group. (Hr'g Tr. 7-9, 68.) DOI investigators analyzed business records and bank records, and they discovered that money paid by the OCME for computer contracts with CCR, Infotech, and HS Group was being passed on to three other companies, A D Marketing, Trade A2Z, and Infodata (the "Shell Companies"), each of which appeared to conduct no business other than to receive money from CCR, Infotech, and HS Group and transfer it to other persons. (Id. 7-9.) Prior to August 9, 2005, DOI investigators found that "people who appeared to be relatives of Ms. Abreu . . . were the signatories on bank accounts" of the Shell Companies using a post office box in Ms. Abreu's name. (Id. 10.)
Although incorporation papers for the Shell Companies used the address of a residence Ms. Abreu shared with her OCME supervisor Mr. Venkataram, the Shell Companies were not noted on Ms. Abreu's city conflict of interest statements. (Id. 10.)
Under the supervision of DOI Chief-of-Staff Robert Roach, DOI investigators conducted surveillance of an OCME employee, Defendant Rosa Abreu, photographing: Ms. Abreu alone; Ms. Abreu with co-defendant Natarajan Venkataram ("Raju"); Ms. Abreu with one or both of her children; and one or both of the children alone. (Id. 12-14, 27-29, 68-72.)
A. Defendant Rosa Abreu's Affidavit of July 12, 2006
In support of her motion to suppress, Ms. Abreu asserted the following:
On August 9 and 10, 2005 she resided with her two school-age sons and her mother, who was "susceptible to heart attacks in high stress situations" due to high blood pressure. (Abreu Aff. ¶ 3.) Ms. Abreu arrived at work on August 9 at the OCME offices located at 520 First Avenue at around 9:30 a.m. and received a phone call from her boss Dr. Hirsch, the Chief Medical Examiner. (Id. ¶ 4.) Dr. Hirsh ordered her to escort two men to the OCME offices at Bellevue Hospital. (Id.) While walking to Bellevue Hospital with the men, Ms. Abreu told one of them — later identified as DOI official Dennis Curran — that she "liked working for the city, especially because of the flextime offered to employees . . . adding that [she] was a mother of two children, and that because one of them was asthmatic, the flextime allowed [her] to attend to [her] asthmatic son's medical treatment without missing a day of work." (Id. ¶ 6.)
When they got off the elevator at the Ninth Floor of Bellevue Hospital, one of the men — later identified as Robert Roach — ordered Ms. Abreu into an empty conference room, locked the door, and closed the blinds. (Id. ¶ 7-8.) He outlined his long experience as a prosecutor, and at this point, Ms. Abreu believed she was under arrest. (Id. ¶ 8.) Curran told her: "We know everything about you and the companies. We know everything about Infodata, A D Marketing, Trade A2Z. We know everything about your kids. We know everything." (Id.) Curran then showed Ms. Abreu copies of checks — including an Infodata check — telling her again that they know everything and have her fingerprints. (Id.) Ms. Abreu requested a lawyer, but her request was rebuked with the response by Roach "Do you think a lawyer is going to come here in ten minutes? You have to come with us downtown. You are in big trouble." (Id. ¶ 9.) Curran showed Ms. Abreu a series of photographs of her older son on his way to school, and her younger son riding his bicycle in front of their home. (Id. ¶ 10.) The photographs made Ms. Abreu "even more scared," and she began to cry. (Id.)
Roach told her, "If you want to see your kids again, you come with us, talk with us, and then you can come back to work around 4:00 p.m." (Id. ¶ 11.) When she asked what would happen if she did not go, Roach told her that she would be in "big trouble" and Curran said that she needed to think about her kids. (Id.) Very frightened that if she did not cooperate she would not see her children again, Ms. Abreu agreed to go with the men. (Id.) Before leaving, she asked if she could get a jacket from her office, but they refused her request. (Id. ¶ 12.) They were in the conference room for a total of about ten minutes. (Id.) On the way to the car, Curran said "Your son is going to a very nice school. What's he doing there?" (Id.)
The three of them were driven in a gold car with a police-type light on the dashboard by a third man — later identified as DOI investigator Byron Biggerstaff — for twenty minutes until they arrived at another building. (Id. ¶ 13.) During the ride, Ms. Abreu was nervous, cold, and crying. (Id.) Ms. Abreu was taken to a small room with an old couch and several chairs where they were joined by a woman with a police badge on her hip (later identified as Detective Merriwether). (Id. ¶ 14.) Roach told Ms. Abreu, "We rent this room especially to interview people." (Id.) Ms. Abreu was cold and shivering. (Id.) Ms. Abreu told them that she had never been arrested before, and Curran said "you have to tell us what we need to know." (Id. ¶ 15.) They repeatedly asked Ms. Abreu "numerous questions about A D Marketing, Infodata, and Trade A2Z, Raju [Venkataram], Tom Brondolo, and CCR." (Id. ¶ 16.) Ms. Abreu was "nervous, hungry, and thirsty, and [her] body was shaking." (Id.)
After about three to four hours of questioning, Roach yelled "I am not satisfied with your answers." (Id.) He then pulled out his cell phone and yelled into it "We are going to give her 15 minutes to talk, prepare to get in." (Id. ¶ 17.) When Ms. Abreu asked what he meant by that statement, Roach told her "If you don't talk to us, then we have people outside your house right now waiting to get your kids and to give them to city agencies." (Id.) Ms. Abreu was terrified she would never see her children again. (Id.) The female officer remarked "Women are so stupid, covering up for men." (Id.) When she asked what they wanted her to say, Curran said "There are three shell companies. Why don't you say that Tom Brondolo got a cut? Why don't you say that Raju got a cut?" (Id.) Ten minutes later, Roach yelled into his phone "She has five minutes to talk, otherwise get ready to get in." (Id. ¶ 18.) Ms. Abreu was crying hysterically and begged them "Please don't do this. My mother lives at home and has high blood pressure and she will get a heart attack." (Id.) Curran responded "It's up to you. . . . Just tell us what we want and nothing will happen to your kids or mom." (Id.) Out of control and shaking all over, Ms. Abreu told them that she did not want her mother to die or to lose her kids. (Id.) Roach said that if she told them everything she would be free to go and would be driven back to work. (Id. ¶ 19.) So, Ms. Abreu told them what they wanted to hear: that Brondolo got a cut and Raju got a cut. (Id.) It took approximately thirty minutes to agree to all the accusations. (Id.) After the female detective escorted Ms. Abreu to the bathroom, Ms. Abreu asked if she was free to go, and was told in substance "You have to make one phone call" by Roach. (Id.) Ms. Abreu then made a recorded call to Mr. Venkataram. (Id.) After the call, Roach told Ms. Abreu that they were going to pick her up the next day and that she would have to say everything again. (Id. ¶ 20.) Ms. Abreu told Roach that she did not want her mother or children to see her arrested, and he arranged to have her picked up at 2 p.m. at a Blockbuster store near her home. (Id.) With that day's interrogation concluded, the DOI driver dropped Ms. Abreu back at OCME at 4:30 p.m. (Id. ¶ 21.)
The following day, August 10, 2005, Ms. Abreu was picked up by the DOI driver and taken to DOI headquarters. (Id. ¶ 22.) He drove "fast and reckless" and occasionally put on lights and a siren. (Id.) Ms. Abreu was taken to a conference room and seated near the pile of photographs of her children and the checks that she had been shown the day before. (Id. ¶ 23.) She was questioned until 7:00 p.m. by Mr. Zander, a DOI Deputy Commissioner, and the two DOI investigators. (Id. ¶ 23-26.) Ms. Abreu was yelled at, and she told the men she did not get any sleep last night and was there because she was forced to be there. (Id.) She also received a call from, and thereafter had a recorded conversation with, Luis Ney Gonzalez on her work cell phone. At 7 p.m., Mr. Curran bought her cookies and a soda, and she was taken home. (Id.)
B. Testimony of DOI Chief-of-Staff Robert Roach
The objective in deciding to approach Ms. Abreu was to "see if [DOI] could obtain her cooperation with the government to provide . . . truthful and complete information regarding what appeared . . . to be criminal conduct and her own illegal activity as well as the illegal activity of her co-conspirators." (Hr'g Tr. 10-11.) At the time, DOI was not working with any prosecutor's office. (Id. 11.) Before approaching Ms. Abreu, DOI did a background investigation to undercover her personnel history at OCME as well as her education history — they understood that she had some degree in computer science, that she held positions of responsibility at OCME, that she was a single mother of two children and had living parents and various other relatives, and had no arrest record. (Id. 27-29, 103.) DOI also did photo surveillance of her activities, showing that she had school-age children and that she commuted to work with codefendant Venkataram. (Id. 8-19.) After the surveillance, Roach determined that the best place to contact Ms. Abreu was at the workplace. (Id. 14.)
Roach contacted Dr. Charles Hirsch, the Chief Medical Examiner, and arranged to interview Ms. Abreu without her prior knowledge in Dr. Hirsch's conference room on August 9, 2005. (Id. 14-15.) For the prospective interview Roach selected a DOI consultant, Dennis Curran, to participate because Roach "knew him to be a very seasoned and competent investigator in approaching people and seeking their cooperation." (Id. 16, 73-74.) Dr. Hirsch suggested that he introduce Roach and Curran as employees of the New York Department of Information Technology and Telecommunications ("DOITT"), and that they meet with Ms. Abreu at Bellevue Hospital, rather than OCME headquarters. (Id. 17-18.)
On the morning of August 9, 2005, after being introduced by Dr. Hirsch, Ms. Abreu escorted Roach and Curran to Bellevue Hospital. (Id. 20-21.) During the three-minute walk they engaged in small talk. (Id.) Roach recalled no discussion about Ms. Abreu's children. (Id. 80.) Roach, Curran, and Abreu took the elevator to the eighth floor, where Curran "indicated who [they] really were, that [they] were from [DOI] and that [they] were there to speak with her and could [they] speak with her in the conference room for a little bit." (Id. 21-22.) Roach never ordered Ms. Abreu into the conference room. (Id. 22.) Ms. Abreu "said yes, and [they] entered the conference room." (Id.) Roach drew the conference room blinds facing the hallway and closed the door without locking it. (Id. 23-24.) They sat a table with Roach and Curran seated between Ms. Abreu and the door. (Id. 24.)
Roach started the conversation by saying that he "didn't want her to say anything. [He] said that [he] had some things that [he] wanted to tell her and . . . said, Please don't speak. Please just listen to me carefully, what [he] was going to tell her was very, very important." (Id. 25.) Roach then "described to her in some detail [his] background in law enforcement" and as a district attorney, and "Dennis Curran introduced himself as well." (Id. 26, 86-87.) Roach "may have" pointed to his beard and said "I have these gray hairs because I have been doing this so long, and I am very experienced as a prosecutor." (Id. 87.) He then told Ms. Abreu how DOI had been investigating for eight or nine months and that they had identified bank accounts in her and her family members' names, checks signed by her family members, and checks made for her rent and for payments of her mortgage loan. (Id. 26.) Roach went through the evidence including references to the moneys coming from the OCME to CCR, HS Group, and Infotech, and her participation in collecting the money at the OCME, the payments to CCR, and her receipt of some payments from CCR to the Shell Companies. (Id. 29-30.) They showed her copies of the mortgage payments and copies of the checks that were signed by what appeared to be her relatives. (Id. 32.) Roach told her that she had not declared any of this money on her state and city income tax returns and that this was a felony punishable by one and a third to four years in prison. (Id. 26, 31.) Roach told Ms. Abreu that her "family members were also involved and faced possible criminal charges." (Id. 31.) He "told her . . . she had to have realized that this day would be coming and that she would be faced with the law enforcement. And [he] said, in a strange way, it is your lucky day because we are not here to arrest you. You are not under arrest, but that we are here to seek her cooperation." (Id. 26.) They told her they could not promise her anything but that they would bring to the prosecutor the nature and extent of her cooperation and truthfulness and that a prosecutor could take that into account in deciding how to proceed. (Id. 33.)
Roach and Curran told Ms. Abreu "that if she was in prison that she had children that she had to care for." (Id. 31.) Curran showed Ms. Abreu the surveillance photos since "[s]he had to think about her relatives and her children, that her being prosecuted and sent to jail would be difficult — possibly being sent to jail would be difficult on her family and she should think carefully about each of those in making a decision." (Id. 32-33.) Roach gave inconsistent testimony about how many, and for how long, photographs containing children were shown to Ms. Abreu. (Id.) They told Ms. Abreu that they "were aware that she had two children, that they were school-aged and that she was a single parent." (Id. 33.) Although neither Roach nor Curran had the authority to arrest, they told her that "she had to decide now, that now was the time for her to decide and that the next time she saw [them] . . . it would be to arrest her." (Id. 33-34.) At the time, Roach believed that he had enough evidence to show that Ms. Abreu had committed a crime. (Id. 92.)
They did not say they had Ms. Abreu's fingerprints. (Id. 34.) Ms. Abreu never mentioned anything about a lawyer. (Id. 101.) No one ever said "you are in big trouble." (Id. 102.)
Next, someone opened the door and looked in the conference room and Roach told them firmly "[t]he conference room is in use and you cannot come in." (Id. 34.) He told Ms. Abreu that they could obviously not stay in the conference room any longer. (Id. 35.) He said that DOI had a "safe house" and asked her if she would accompany them there. (Id.) He told her that "at any point in time, from the moment she left the room, at any point in time if she did not want to go, she did not have to go . . . she was not required to go, but if she wanted the opportunity to cooperate, that she would need to come. . . ." (Id. 25.) She agreed to go with them. (Id. 35.) At this point Roach and Curran had been with Ms. Abreu for a total of thirty to sixty minutes since meeting her with Dr. Hirsch. (Id. 36.) Throughout this period Ms. Abreu's demeanor was "[s]urprisingly calm and thoughtful," and she never cried. (Id. 37.) At no point did she make any mention of a lawyer during this time. (Id. 36-37.) Neither Roach nor Curran ever said that they would take Ms. Abreu's children away from her if she did not go with them, or that they had people outside her house ready to take her children away and give them to city agencies. (Id. 37, 48.)
Roach, Curran, and Abreu met DOI investigator Byron Biggerstaff in his car outside Bellevue Hospital. (Id. 38-39.) In Ms. Abreu's presence, Roach "reiterated for Byron's sake that [he] wanted him to stay available so that at any point in time Ms. Abreu says she wants to go to the office, she wants to leave, it was his responsibility to take her back." (Id. 39; see also id. 110-11.) As they were getting into the car, Ms. Abreu asked if she could retrieve a personal item from the office — possibly a pocketbook or a jacket — and Roach and Curran "suggested that that would not be a good idea" and that it was important that the "meeting remain confidential." (Id. 39-40.) Roach told her that they "preferred she not go back up to the office at that time. . . ." (Id. 124.) During the five to ten minute drive to the John Street "safe house" they made small talk. (Id. 40.) At the "safe house" — a bare two-room walk-up office cooled by an open window and fan — Roach and Curran introduced Ms. Abreu to a plainclothes female New York City police detective, Det. Merriwether, by her name and title. (Id. 41-43.) Ms. Abreu sat on a couch and they sat on chairs nearby. (Id.)
Ms. Abreu told Roach and Curran that "she would admit what she had done wrong," including that "she had received the money and did not declare it on her income taxes." (Id. 43-44.) She explained her actions, identified her relatives on the checks, and conceded that Trade A2Z, A D Marketing, and Infodata were essentially shell companies and that Luis Ney Gonzalez took over management of Trade A2Z from Mr. Venkataram, but she "was very hesitant about talking about Mr. Venkataram and Mr. Brondolo." (Id. 44-46.) She said "they were both nice guys and that she preferred not to speak of them. . . ." (Id.) At these times, Ms. Abreu "would lean forward in her chair and act as though she wanted to speak and stop and sit back." (Id. 58.) At no time did Roach yell, but he did tell Ms. Abreu that he "was not satisfied with her answers," and that if she wanted to cooperate "she would need to discuss Raju's role in this as well." (Id. 46-47, 109-10.) At a later point, Roach learned from a detective that Ms. Abreu's mother had high blood pressure. (Id. 49-50.) Ms. Abreu needed to use the bathroom and was shown the way by Det. Meriwether. (Id. 51.)
Eventually Roach became unsatisfied with the scope of Ms. Abreu's responses and told her "we are not going to sit there all day, that she had to reach a decision about whether or not she wanted to cooperate, whether or not she wanted to be fully candid." (Id. 52.) "And at a certain point, [Roach] decided that it was not going to be possible to have her cooperation and told the people in the [DOI] office to start the other interviews." (Id.) He made this statement in Ms. Abreu's presence on his cell phone, and told her that he was talking about "interviewing . . . the relatives that she had, to see about her participation and their participation in the investigation." (Id. 53.) In actuality, Roach only intended on starting to interview co-defendant Venkataram, who was in DOI's office across the street. (Id.) Roach told Curran and Det. Meriwether "that if [Ms. Abreu] changes her mind to call [him] and . . . [he] will come back." (Id. 54.) As soon as he reached the bottom of the stairs, Roach was called back because Ms. Abreu had made new statements about Mr. Brondolo and Mr. Venkataram, their relations with Luis Ney Gonzalez, and their knowledge of her activities. (Id.) Roach "made it clear that [they] had accepted at that point her as a cooperator, that this was a voluntary arrangement." (Id. 57.) Roach then "had [Ms. Abreu] make a tape-recorded call to Mr. Venkataram on his cell phone." (Id. 53.) Roach asked Ms. Abreu to call in sick and return to DOI the next day; she agreed. (Id. 56.) Ms. Abreu never said that she did not want to be arrested in front of her residence. (Id. 57.) At sometime between two and three o'clock in the afternoon Roach arranged for Biggerstaff to bring Ms. Abreu home and pick her up the following day. (Id. 56-58.) Roach does not recall Ms. Abreu ever expressing that she was cold. (Id. 98-99.)
Mr. Roach is incorrect about the time; the interview ended around 3:30 p.m. (See Abreu Aff. Ex. B at 4.)
The next day, August 10, 2005, Ms. Abreu was interviewed at the DOI offices by Roach, Curran, and the deputy inspector general for OCME, Stephan Zander. (Id. 59.) At no point during the day did Ms. Abreu request a lawyer. (Id. 61.) She was not pensive at all, but was cooperative and volunteered information. (Id. 117.) By the end of the meeting, DOI still viewed Ms. Abreu as a cooperator. (Id. 62, 117.) She recorded a call in Spanish with Luis Ney Gonzalez, but when immediately translating for Roach and Curran what she said during the call — they do not understand Spanish — Ms. Abreu did not tell them that she told Luis the police had detained her. (Id. 121-22.) The investigators had only asked Ms. Abreu to tell Mr. Ney Gonzalez that DOI was questioning her about certain transactions. (Id. 122.) After the call, Ms. Abreu asked Roach and Curran whether as a cooperator it was alright for her to go on a planned cruise with her mother and children, and the DOI investigators "told her of course." (Id.)
The translation of the recorded call reveals that Ms. Abreu told Mr. Ney Gonzalez in Spanish that the police had detained her. (See Abreu Aff. Ex. C at 2.)
C. Testimony of DOI Special Inspector General Dennis Curran
During the walk to Bellevue Hospital with Ms. Abreu and Roach on the morning of August 9, 2005, Curran recalls Ms. Abreu mentioning that she worked with the OCME for many years because she had two children and utilized the flex time. (Id. 161.) On the way up to or once inside the Bellevue Hospital conference room Roach and Curran introduced themselves to Ms. Abreu as being from DOI. (Id. 128.) Roach closed the blinds to the office, but did not lock the door, and explained some details regarding the case to Ms. Abreu and showed her cancelled checks. (Id. 129, 135-36.) While Roach was talking, Curran handed Ms. Abreu the packet of surveillance photos, and as she went through them they had conversation about who was in the photographs: "is that your son, is that your younger son." (Id. 130.) Curran inquired about Ms. Abreu's children "to establish a rapport with her" and learned that "her son was going to a special school, that he was taking summer school classes so that he could obtain entry into a special school. . . . And it was more just a social-related conversation to her family members." (Id. 131-33.) Curran was "just trying to put her at ease and make her feel comfortable [by] talking about her family." (Id. 165.)
Ms. Abreu "was taken aback and a bit stoic about" the photos. (Id. 133-34.) Curran believed Ms. Abreu to be nervous since she "was talking about being cold." (Id. 134.) Ms. Abreu did not ask to leave, mention an attorney, or cry while in the conference room. (Id. 136.) Someone knocked on the door to the conference room and Roach indicated that they were going to take Ms. Abreu down to a DOI safe house, but did not say that she was required to go. (Id. 137.) During the drive to the safe house, Ms. Abreu mentioned she was cold and Curran offered her his jacket. (Id. 138.) Curran asked if she wanted something to eat, but she declined. (Id.)
At the safe house, they were joined by Det. Merriwether. (Id. 139.) They sat in a room with comfortable chairs and a couch. (Id.) In response to questions by Roach, Ms. Abreu explained her involvement and the involvement of her family members in the scheme, but was not completely forthcoming with respect to Mr. Venkataram. (Id. 140-41.) Curran did not tell Ms. Abreu that she was free to leave and does not recall anyone doing so. (Id. 142.) Ms. Abreu again expressed that she was cold. (Id. 143.) Curran told Roach that he was surprised Ms. Abreu was so cold since "the safe house in August was, to say the least, was very warm." (Id. 175.) Curran wanted to offer her his coat, and Roach said "Go ahead . . . [y]ou can if you want." (Id. 176.) At one point when questioned about certain personal relationships, Ms. Abreu began to cry and Curran and Roach together decided to leave her alone with Det. Merriwether for around ten minutes. (Id. 144-45, 176.) Det. Merriwether told Curran that "Ms Abreu had put herself in this situation because of her involvement or covering for men or something of that nature." (Id. 178.) After that, the questioning continued for about an hour. (Id.) During this time, Curran reminded Ms. Abreu to "tell the truth to all of the questions being asked." (Id. 189.) Curran remembers Ms. Abreu expressing concern for her mother's health, but does not recall the particular ailment. (Id. 180-81.) Roach asked Ms. Abreu if she was willing to come back the next day, and she agreed. (Id. 147.) In total, the safe house interview lasted for "well over three hours." (Id. 145.)
The following day, Ms. Abreu was interviewed at the DOI offices by Roach, Curran, Zander, and possibly Sam Amorese for four to five hours. (Id. 148-49.) At the end of the meeting, Curran provided Ms. Abreu with his cell phone number and "told her, if she wanted to get in contact with [him], she could." (Id. 150.) They subsequently exchanged a dozen or so phone calls after August 10, but none of their conversations involved the investigation. (Id. 150-53.) Ms. Abreu, nervous for her safety, asked Curran for his assistance because she believed a red car was surveilling her. (Id. 151-52.) Curran attempted to corroborate by surveillance whether her fears were justified. (Id.) On at least one other occasion Ms. Abreu called Curran to obtain his assistance in receiving a delinquent paycheck from the OCME. (Id. 152-53.)
D. Testimony of DOI Special Investigator Byron Biggerstaff
On the morning of August 9, 2005, Biggerstaff picked up Roach, Curran, and Ms. Abreu from Bellevue Hospital and drove for fifteen or twenty minutes to the DOI safe house on John Street. (Id. 190-91.) Biggerstaff recalls no conversation with Roach where he was told "to remain available during the balance of that day to potentially drive someone anywhere." (Id. 197.) Biggerstaff recalls no substantive conversation during the ride and did not see or hear Ms. Abreu cry. (Id. 192.) The car was not equipped with a police light or sirens. (Id.) In the afternoon Biggerstaff received a call to pick up Ms. Abreu, and he and another investigator picked her up from the safe house and drove silently for fifteen or twenty minutes before dropping her off at the OCME. (Id. 193-94, 198.)
The following day, August 10, 2005, Biggerstaff picked Ms. Abreu up at a Blockbuster store in Queens pursuant to a request by his supervisor, Stefan Zander, and drove her to DOI offices at 80 Maiden Lane taking 40 or 45 minutes. (Id. 194-95.) Biggerstaff did not speed or drive in a dangerous manner. (Id. 195-96.) The vehicle was a gold Honda Accord that was not equipped with a police light or siren. (Id. 196.) The only conversation concerned the heavy traffic, and the drive lasted "40 minutes, 45 minutes at the most." (Id. 195-96.)
E. Testimony of Defendant Rosa Abreu
Ms. Abreu is single and lives with her mother — who suffers from high blood pressure — and her two sons, nine and eleven years of age as of August 9, 2005. (Id. 207-08.) She worked for the OCME from 1989 until 2005. (Id. 210.) Her education includes an associate degree from LaGuardia Community College in 1989 and a B.S. from Empire State College in 1994. (Id. 210-11) Aside from this case, Ms. Abreu had never "had direct contact regarding some kind of a matter with anybody from criminal law enforcement." (Id. 211.)
On the morning of August 9, 2005, Ms. Abreu received a telephone call from Dr. Hirsch, asking her to come outside and take two gentlemen to the Bellevue office. (Id. 212-13.) During the walk, Roach told her "that he just needed to take a look through the computer system on the 9th floor." (Id. 214) Curran asked her why she had been working for the city so long, and Ms. Abreu explained to him that she was a mother of two and one of them was asthmatic and that she needed the flex time to take care of her son's treatment. (Id. 214-15.)
Once they arrived at Bellevue Hospital, they took the elevator to the ninth floor. (Id. 217.) While in the elevator, Ms. Abreu received a call on her cell phone from Mr. Venkataram. (Id. 216.) On the ninth floor, Roach opened the door to an empty conference room and told Ms. Abreu "[g]et in." (Id. 217.) As soon as they were inside, Roach closed the blinds to the hallway and one from the window, and locked the door. (Id. 218.) Roach then "passed his hand through his beard . . . and he said, you see this beard, this is because of my experience as a prosecutor." (Id. 226.) Roach and Curran sat at the table between Ms. Abreu and the door. (Id. 219.) Roach never told her to "say nothing." (Id. 287.) Curran said "[w]e know everything about you and the companies. We know everything about Infodata, A D Marketing, Trade A2Z. We know everything about your kids. We know everything." (Id. 219.) Then Roach, she believes, showed her checks from Infodata and said "[w]e have your fingerprints. We know everything." (Id. 220-21.) When seeing the checks, Ms. Abreu got nervous in part because the checks were from Infodata. (Id. 288.) The Infodata company was opened by her aunt who lived in the Dominican Republic and who would sign many blank checks for Ms. Abreu when she visited the United States. (Id. 289-93.)
Roach and Curran showed Ms. Abreu photos of: Raju; Ms. Abreu in her driveway; Raju and Ms. Abreu in her Honda Pilot at her home; Ms. Abreu jogging outside her home; Ms. Abreu jogging beside her son Joshua on his bike; Ms. Abreu's son Ephraim on his bike alone; Joshua on his bike; and Ms. Abreu walking out of her house. (Id. 221, 223-24.) Roach then told Ms. Abreu that "if [she] want[s] to see [her] kids again, [she has] to go with him downtown and talk to him and he will bring [her] back around 4 to work." (Id. 224.) Curran said "think about your kids," but Ms. Abreu does not remember him asking specific questions about the photos. (Id. 224-25.) After viewing the photographs each in turn, Ms. Abreu became very nervous and began to cry because she "thought something will happen to [her] kids." (Id. 225.) Roach said "you have to come with us downtown. You are in big trouble." (Id. 227.) Ms. Abreu was scared since it was the first time she was speaking to a prosecutor in her life and she thought that she was "under arrest right there." (Id. 227-28.) Ms. Abreu believed she was under arrest as soon as Roach locked the door and told her he was a prosecutor. (Id.) They showed her checks immediately and "there was no doubt for [her] that they put [her] under arrest right there." (Id. 228.) Ms. Abreu said "I want to call my lawyer" and "Mr. Roach laughed . . . Ha, ha, ha. Which lawyer is going to come here in 10 minutes? You have to come with us downtown. You are in big trouble." (Id.) After showing her the checks and talking about the lawyer, Ms. Abreu was shown the pictures. (Id. 229.) Ms. Abreu thought that the only way she could keep her kids was to go downtown. (Id.) While still in the conference room, she asked if she could get a jacket before leaving, and Roach said "no." (Id. 229-30.) Roach called for someone to pick them up, unlocked the door, and they proceeded down in the elevator together. (Id. 230.) While they were leaving the building, Curran asked Ms. Abreu why her "son was going to a very nice school," and she told him that her son was preparing to take the Stuyvesant exam. (Id. 230-31.) Then they were driven by Biggerstaff to the safe house location. (Id. 231-32.)
At the safe house, Ms. Abreu was seated on a couch with Roach on one side and Curran on her other side; a female police officer was also present. (Id. 232.) Ms. Abreu was crying and told Roach and Curran that she was very nervous and extremely cold, but received no response. (Id.) Roach said "we know everything about the companies and we want you to clarify something for us." (Id. 233.) Ms. Abreu answered his questions about "Tom Brondolo and Raju and CCR . . . up to [her] knowledge. . . ." (Id. 233-34.) They also asked her questions about names she did not recognize, and when she told them she was unfamiliar with the names, they kept asking her the same questions for a few hours. (Id. 235.)
Eventually, Roach "stood up from his chair and said, I not satisfied with your answers. He screamed at [her]. . . ." (Id. 236.) Ms. Abreu responded that she had told him everything that she knew. (Id.) Roach "pulled out his cell phone . . . made a phone call" saying "we are going to give her 15 minutes to talk and if she doesn't, prepare to get in." (Id. 237.) At this time, Ms. Abreu was crying and "getting hysterical . . . and the female officer said, women are so stupid, just covering up for men." (Id.) Curran "kept asking me questions, and he even asked me, Why don't you say Tom Brondolo got a cut? Why don't you say Raju got a cut? What do you know about Lorraine Kelly?" (Id. 238.) Ms. Abreu, in tears, kept telling them that she could not say that since she did not know if it was true. (Id.) Roach "became very upset . . . pulled out his cell phone and said, she has five more minutes, otherwise, get in." (Id.) Ms. Abreu told them that her "mother was at home and she was having high blood pressure and that she could get a heart attack. [She] said, Please don't do it. Please don't do this. My mom going to die. [Curran] kept saying, just tell us what we want. Just tell us what we need to know. And [Ms. Abreu] kept begging. [She] didn't want to go to [her] mom's funeral." (Id. 239.) Roach told her "tell us everything and we will send you back to work" and Curran said that if she told them everything, "nothing will happen to [her] mother or [her] kids." (Id. 240.)
At this point, Ms. Abreu "just agreed to everything that they wanted." (Id.) Curran told her "Why don't you say Brondolo got a cut? And [she] said, OK, Brondolo got a cut. He said, Why don't you say Raju got a cut? And [she] said, Raju got a cut. And then he said, why don't you say that you are guilty? And [she] said I am guilty." (Id.) "And [she] admitted every word that [Curran] said or Mr. Roach, [she] admitted, and [her] kids could be safe and [she] could be free to go." (Id.) Ms. Abreu then asked to use the bathroom, and the female officer took her there. (Id. 241.) When Ms. Abreu asked Roach if she was "free to go," he responded "you have to make a phone call," and asked her to call Raju. (Id.) After the recorded call, Roach told Ms. Abreu that she had to come back the following day and that they would pick her up at her house. (Id. 242.) Ms. Abreu asked if she could come by herself since she "didn't want [her] mom or [her] kids to see [her] walking into a police car or to get arrested," so Roach let her choose a location near her house for the pickup. (Id.) Around 4:00 p.m. or 4:15 p.m. Roach called Biggerstaff to take Ms. Abreu back to the OCME. (Id. 243.) From 9:45 a.m. until approximately 4:00 p.m. Ms. Abreu was always in the company of either Roach, Curran, or the female officer. (Id.) That night, Ms. Abreu told her mother what had happened and was unable to sleep at all. (Id. 245.)
At 2:00 p.m. the next day, August 10, 2005, Ms. Abreu was picked up by Biggerstaff at the prearranged location. The car had tinted windows and portable police lights. (Id. 246-47.) During the thirty minute drive, Biggerstaff put the police light on top of the car and drove to the DOI offices. (Id. 247-48.) Ms. Abreu was interviewed by Roach, Curran, and Zander. (Id. 249-51.) Mr. Zander told Ms. Abreu that he wanted "to hear everything that [she] said yesterday." (Id. 251.) During the interview, Ms. Abreu could see on the table in front of her the pile of surveillance photos — with a photo of her son Ephraim on top — and a pile of the checks she was shown the previous day. (Id. 251-53.) Ms. Abreu thought she was under arrest. (Id. 281.) Curran told her that "if [she] cooperate[s] he will speak to the prosecutor," and this was the first time in two days that anyone had used to word "cooperation." (Id. 286.)
Within a few days of the interrogations, Ms. Abreu noticed a red car following herself and her family. (Id. 275.) She called Curran and asked him "why they were doing this to [her]?" (Id.) Curran responded that DOI was not doing it, and that they suspected it might be someone from CCR trying to intimidate her. (Id.) Ms. Abreu kept calling Curran about the person following her. (Id.) On a different occasion, Ms. Abreu called Curran to see if he could help her obtain a delinquent OCME paycheck. (Id. 276.) He called her back multiple times saying that he was "working on the paycheck." (Id.) In total, Ms. Abreu spoke with Curran on the phone about three or four times a day from August 10 until around August 23 or 25, at which point Ms. Abreu retained counsel and was advised to discontinue the conversations. (Id. 276-70.)
On cross examination Ms. Abreu stated she got nervous when she saw the Infodata check. (Id. 288.) Ms. Abreu admitted she had provided a false job reference letter with a false apartment application, (Gov. Ex. 8), in September 2005 because she "needed a home for her kids." (Id. 319-21.) She also had planned to send to potential employers a resume that she created falsely stating she worked for Reliable Services and Products from December 2003 to present and that she worked for the Department of Health until July 2005. (Id. 322-25.)
F. Findings on General Credibility of the Witnesses
The testimony of Ms. Abreu conflicts with that of Roach, Curran, and Biggerstaff in major respects. Although there were points on which Roach and Curran's testimony differed — e.g., on how many pictures of Ms. Abreu's children were shown to her and for how long, and whether she cried on one occasion or was nervous — in most areas of significance their testimony was consistent. Ms. Abreu never asked for an attorney. (Hr'g Tr. 36-37, 61, 136, 142, 150, 153.) She never asked to leave. (Id. 142, 149-50.) She was never yelled at, threatened, or otherwise treated roughly. She was never told her children would be taken away or given to agencies. (Id. 37-38, 47-48, 61, 143-44, 172.) She was offered food but refused it. (Id. 110, 138.)
Both Roach and Curran have lengthy experience in investigative work. Roach has been an attorney for a legal services organization, a civil rights advocate (an ACLU board member), as well as a New York State assistant attorney general, and a prosecutor in the Manhattan District Attorney's office. (Id. 3-6.) Curran has had eighteen years experience as an investigator with the Waterfront Commission of New York Harbor. (Id. 125-26.) Ms. Abreu, although never arrested before, admitted to engaging in acts of cunning and deceit — i.e. she acknowledged that she and Venkataram formed Infodata, but that she had her aunt, Gisela Abreu, open the Infodata bank account and, in turn, sign many Infodata checks in blank some of which were later made out by Ms. Abreu to pay down her own mortgage loan and for other personal expenses. Gisela Abreu lived in the Dominican Republic and had nothing to do with Infodata as a business. (Id. 290-97.) Ms. Abreu similarly conceded that she and Aracelis Abreu, her stepmother, formed A D Marketing, that she had Aracelis Abreu sign checks in blank despite the fact that Ms. Abreu maintained the checkbook. (Id. 311-14.) Ms. Abreu also had an ATM card for the A D Marketing bank account with which she withdrew cash. (Id. 316.)
She also stated that her former boyfriend, Luis Ney Gonzalez, had taken over management of Trade A2Z from Mr. Venkataram and deposited checks from CCR. (Id. 310-11.)
In September 2005, Ms. Abreu submitted an apartment lease application falsely stating that she worked for Reliable Services and Products as an Assistant Vice President and was paid $74,388 per year. (Id. 318-21.) Also, in July 2005, while still an OCME employee, Ms. Abreu prepared a resume falsely stating she was employed by Reliable Services and Products from December 2003 to present. (Id. 322-24.)
Based on Ms. Abreu's admissions and based on the witnesses' demeanor during testimony, the Court concludes that in all major issues the testimony of Roach, Curran, and Biggerstaff was more credible than that of Ms. Abreu.
II. SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF LAW
Defendant Abreu maintains that her statements made on August 9, 2005 and August 10, 2005 must be suppressed on the grounds that (1) the statements were the improper result of a custodial interrogation in the absence of Miranda warnings; (2) the statements were made involuntarily, rendering their use at trial a violation of her Fifth Amendment due process rights; and (3) she was denied her Fifth Amendment right to counsel.
A. Custody and Conditions of Arrest
It is a violation of the Fifth Amendment right against self-incrimination when a defendant is interrogated while in custody without first being administered Miranda warnings.Miranda v. Arizona, 384 U.S. 436, 444 (1966). Although Miranda was created as a prophylactic to avoid coercive interrogations,Miranda does not extend to non-custodial interrogations in coercive environments. Oregon v. Mathiason, 429 U.S. 492, 495 (1977) ("[A] noncustodial situation is not converted to one in which Miranda applies simply because . . ., even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a 'coercive environment.'"); see also United States v. Newton, 369 F.3d 659, 671 (2d Cir. 2004). There is no dispute that Ms. Abreu never received Miranda warnings when subject to interrogation on August 9 and 10 of 2005. Defendant's motion maintains that her statements to the DOI investigators must be suppressed because she was in custody for purposes ofMiranda, (Def. Rosa Abreu's Mem. of Law in Supp. of Her Mot. to Suppress Statements at 13-15.)
The threshold determination for a finding of custody is the "presence or absence of affirmative indications that the defendant was not free to leave." Newton, 369 F.3d at 669 (quoting Tankleff v. Senkowski, 135 F.3d 235, 243-44 (2d Cir. 1998)). However, absent formal arrest, the "ultimate inquiry" for determining whether a defendant was in custody is "whether a reasonable person in defendant's position would have understood himself to be subject to the restraints comparable with a formal arrest." Newton, 369 F.3d at 670-71; see United States v. Kirsh, 54 F.3d 1062, 1067 (2d Cir.), cert. denied, 516 U.S. 927 (1995). The analysis requires consideration of "all the circumstances surrounding the interrogation," Tankleff, 135 F.3d at 243. Several relevant factors include: "whether a suspect is or is not told that she is free to leave; the location and atmosphere of the interrogation; the language and tone used by the police; whether the suspect is searched, frisked, or patted down; and the length of the interrogation." Id. at 244 (internal citations omitted).
Ms. Abreu's statement that she believed she was under arrest during the ten minutes, (Abreu Aff. ¶ 12), that she was in the Bellevue Hospital conference room is not credible. In the first place, contradicting her claims, Roach and Curran testified that the conference room door was not locked, (Hr'g Tr. 24, 129), and Roach told Ms. Abreu that she was not under arrest, but that he was seeking her cooperation in the investigation and would bring any cooperation by her to the attention of whatever prosecutor handled the case. (Id. 33.) Secondly, Ms. Abreu realized she had the option of not going downtown to talk to Roach and Curran. She quotes Roach as saying "If you want to see your kids again, you come with us, talk with us, and then you can come back to work around 4 p.m." (Id. 224.) Thus, it is clear from Ms. Abreu's own testimony that she would not be have been taken to jail. She testified that she then asked what would happen if she did not go, (id.), indicating that she realized she had a choice not to go. Next she states that Roach answered that if she did not go that she would be in "big trouble," not that she would be taken to jail. (Id. 227-28.) No reasonable person asking these questions and getting these answers would believe they were in custody. See Newton, 369 F.3d at 670-71. Ms. Abreu then testified "I realized the only solution for me to keep my kids was to go with them downtown." (Hr'g Tr. 229.) Accordingly, when Ms. Abreu went downtown to the "safe house" she knew she was not under arrest because she knew she would be returning to work around 4 p.m. Since she was given a choice whether or not to go downtown, Ms. Abreu's freedom of movement had not been restrained to the degree associated with a formal arrest. See California v. Beheler, 463 U.S. 1121, 1125 (1983); Oregon v. Mathiason, 429 U.S. 492, 495 (1977); accord Stansburv v. California, 511 U.S. 318, 324 (1994).
It may be that Ms. Abreu felt she was in danger of being placed under arrest for the few minutes Roach presented her with: DOI's knowledge of her receipts of funds from CCR; checks showing she had received over $70,000 in income from Infodata; and DOI's knowledge that she had not reported this income, which was a crime calling for a sentence of one and third to four years. However, the danger of arrest was quickly dispelled when Roach told her they were seeking her cooperation and that she was not under arrest. (Id. 26-27.)
Roach denies he ever said "you are in big trouble." (Id. 102.)
Ms. Abreu's testimony that "the only solution for me if I wanted to keep my kids was to go with them downtown" was preceded by statements that she had been threatened by Roach with the loss of her children. Specifically she testified that Roach told her "if she wants to see her kids again, she has to go downtown and talk with him and he will bring her back at 4 p.m. to work." (Id. 224.) In her affidavit Ms. Abreu affirms that this was "in substance" what Mr. Roach said, suggesting that these are not the precise words he spoke. (Abreu Aff. ¶ 11.) The Court finds more credible the statements testified to by Roach and Curran that Ms. Abreu was first told she might go to jail for one and a third to four years for filing false tax returns for failing to declare the payments she received from Infodata as 2004 income, (Gov. Ex. 5), that her family members — aunt, stepmother, and father — could be prosecuted as accomplices, and that in deciding whether to cooperate she should think about her family and children. (Hr'g Tr. 31-33.) Roach testified that what Ms. Abreu was then told was that "if she was in prison she had children to care for." (Id. 31.) Ms. Abreu states that Curran only said that she needed to think about her kids. (Abreu Aff. ¶ 11.) Neither statement suggests, as she claims, that she was told that if she did not go downtown she would not be able to see her children again. (Id.) Roach and Curran had no authority to prevent her from seeing her children again, and it would have been foolish for them to indicate they could make that happen. Accordingly, the Court does not find credible Ms. Abreu's testimony that Roach said "if you want to see your kids again. You come with us [downtown to talk]." (Id.)
Roach denies saying "if you want to see your children again, you [have to] come [and] talk with us." (Id. 38.)
With respect to Ms. Abreu's trip to, and the questioning of her in, the John St. "safe house," the factual analysis is similar. Since her own testimony demonstrates she recognized she had a choice about going downtown with the understanding she would return to her workplace at 4 p.m, the only reasonable conclusion is that while at the safe house Ms. Abreu knew she was going to leave. Roach testified that she was told on several occasions that if she wanted to leave she would be returned to the OCME. (Id. 111-12.) In short: Ms. Abreu had not been searched or frisked; she maintained custody of her cell phone, (id. 183); no handcuffs were shown to, or placed on, her; she was not confronted with a gun; she acknowledges that she was never told that she could not leave or that she was under arrest, (id. 281); she was offered something to eat, (id. 120, 138, 143); and she realized she made the choice to accompany Roach and Curran downtown. Both Roach and Curran testified that when she arrived at the safe house, Ms. Abreu readily admitted the participation of Mr. Ney Gonzalez, her relatives, and herself in the money laundering of CCR funds. (Id. 43-45.) Ms. Abreu was only reticent in discussing her supervisors, Mr. Brondolo and Mr. Venkataram, and their relationship to CCR. (Id. 46.) The interrogation did not consist of demanding, yelling, or threatening; instead, gentle persuasion was used. (Id. 45-46, 109-10, 141-42.) Although the John St. interview was lengthy — approximately four hours — the alleged crime is a factually complex white collar scheme involving the laundering of funds and involving the participation of more than six people. Accordingly, any reasonable person in Ms. Abreu position would not have "understood himself to be subject to the restraints comparable with a formal arrest." United States v. Newton, 369 F.3d 659, 671 (2d Cir. 2004).
B. Coercion of Non Voluntary Statements
1. Fifth Amendment Due Process Prohibition
A confession is "involuntary" if it is 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));see Miller v. Fenton, 474 U.S. 104 (1985). Voluntariness is "interrelated, but analytically distinct" from the question whether a defendant was subject to custodial interrogation for the purposes of Miranda. See Tankleff v. Senkowski, 135 F.3d 235, 242 (2d Cir. 1998). The fact that a defendant is not in "custody" for Miranda does not foreclose a challenge to a confession as not voluntary. See Beckwith v. United States, 425 U.S. 341, 347-48 (1976). The burden is on the government to prove that a confession is voluntary by a preponderance of the evidence.Colorado v. Connelly, 479 U.S. 157, 168 (1986).
"No single criterion controls whether an accused's confession is voluntary: whether a confession was obtained by coercion is determined only after careful evaluation of the totality of the surrounding circumstances." Green v. Scully, 850 F.2d 894, 901 (2d Cir. 1988); see Schneckloth v. Bustmonte, 412 U.S. 218, 226 (1973). The totality of the surrounding circumstances are evaluated "to determine whether the government agents' conduct 'was such as to overbear [a defendant's] will to resist and bring about confessions not freely self-determined.'" United States v. Kaba, 999 F.2d 47, 51 (2d Cir. 1993) (quoting United States v. Guarno, 819 F.2d 28, 30 (2d Cir. 1987)). "The factors to be considered include 'the type and length of questioning, the defendant's physical and mental capabilities, and the government's method of interrogation." United States v. Alvarado, 882 F.2d 645, 649 (2d Cir. 1989) (quoting United States v. Mast, 735 F.2d 745, 749 (2d Cir. 1984)). The only "necessary predicate to the finding that a confession is not 'voluntary'" is "coercive police activity." Connelly, 479 U.S. at 167.
Law enforcement threats to relatives — especially children — are particularly coercive. In Lynumn v. Illinois, 372 U.S. 528 (1963), the Court deemed a confession not voluntary where law enforcement elicited statements by telling the defendant, who had never been arrested before, that (1) she was facing a ten-year prison sentence if she did not answer questions; (2) state financial aid for her children would be cut off; and (3) her children would be taken away from her, and she would never see them again if she did not cooperate. Id. at 533-34. Relying onLynumn, the Ninth Circuit in United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981) noted: "The relationship between parent and child embodies a primordial and fundamental value of our society. When law enforcement officers deliberately prey upon the maternal instinct and inculcate fear in a mother that she will not see her child in order to elicit 'cooperation,' they exert [an] 'improper influence.'" Id. at 1336.
In Tingle, a confession was found to be not voluntary after agents questioned Tingle about the robbery of a credit union safe. After giving her Miranda warnings, FBI agents: accused her of lying; told her she and her boyfriend had staged the robbery; suggested that her boyfriend had told agents Tingle was responsible for the planning and execution of the robbery; told her that if she cooperated they would inform the prosecutor so that she could be released on her own recognizance, but that if she did not that they would tell the prosecutor she was "stubborn or hard-headed"; recited a litany of prison sentences she was facing that totaled up to forty years — twenty years for bank robbery or twenty-five years for armed robbery, five years for conspiracy, five years for lying to a federal agent, and five years if she lied to the grand jury; told Tingle she would not see her two-year-old child "for a while" if she went to prison; and reminded her she had "a lot at stake." Id. Although the court found the threat to remove Tingle from her children was not explicit, it also found that based on the totality of the circumstances "the coercive purpose and effect are indistinguishable from that in Lynumn." Id.
Tingle was found bound and gagged at the site of the robbery.Tingle, 658 F.2d at 1333.
In contrast to the results in Lynumn and Tingle, confessions have been found voluntary when threats involving family members are legitimate and germane to the investigation. These include cases where the family members are: (1) material witnesses, see United States ex rel. Graham v. Mancusi, 457 F.2d 463, 470 (2d Cir. 1972) (finding a confession voluntary when investigators threatened to interrogate the suspect's children in a murder investigation when his stated alibi did not match statements previously made by the children to law enforcement — "I don't want to bring the children into this, but I will if I have to."); or (2) suspects themselves, see Gibson v. Phillips, 420 F. Supp. 2d 327, 336 (S.D.N.Y. 2006) (upholding a confession where police threatened to question and arrest certain family members who were implicated in the current investigation and other crimes, because the interrogation "comprised the type of circumstances which, although possibly presenting 'difficulties' to an interviewee were found insufficient to create coercion"). Mancusi and Gibson are distinguishable from Tingle because in these two cases the law enforcement agents had legitimate reasons to interview the children and family members as witnesses.
In United States v. Alvarado. 882 F.2d 645, 649 (2d Cir. 1989), after obtaining a signed Miranda waiver, the law enforcement agents induced a confession in part by reminding the defendant that she "had a daughter and . . . it would be in her best interest to cooperate." Id. at 649. She was also told that her cooperation would be brought to the attention of the prosecuting attorney and the judge, and she could have been told that if "she does not cooperate she is going to get ten years, just like Scoobie [a co-defendant]." Id. at 648. Distinguishing Tingle, the court held the defendant's confession was voluntary since there was no "reiterated recital of maximum penalties, threats to denounce [the defendant] to the prosecutor, repetitive references to separation from her daughter, or accusations of lying," and the interview only lasted "approximately thirty to forty-five minutes, during which period her physical and mental capabilities were not impaired." Id.
2. The August 9 and 10 Interrogations
The coercive pressures utilized by Roach and Curran will hereafter be assessed based on the totality of the circumstances,Green v. Scully, 850 F.2d 894, 901 (2d Cir. 1988), with the understanding that "any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by nature of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime." California v. Beheler, 463 U.S. 1121, 1124 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)).
a) Bellevue Hospital
The coercive technique utilized at Bellevue Hospital was to place before Ms. Abreu checks to show: (1) that she had participated in depositing funds to, and disbursing funds from, Infodata; and (2) that she received monetary distributions from Infodata that she had failed to declare in filing state income tax returns for 2004. (Hr'g Tr. 79.) Roach and Curran told Ms. Abreu that failure to declare such income constituted a crime and she could be facing one and a third to four years in jail. (Id.) They also told her that they knew that Infodata, Trade A2Z, and A D Marketing were shell companies that did no business despite receiving funds from CCR contracts with OCME, but that DOI was interested in her cooperation in investigating these matters. (Id.) They told here that if she were willing to cooperate they would recommend lenient treatment from the prosecutor. (Id.) Ms. Abreu was shown surveillance photos of herself and her children, while the investigators told her that as a single mother she needed to consider her children and family when deciding whether she was going to cooperate. Based on her own testimony and that of Roach and Curran, Ms. Abreu was not asked any questions at Bellevue Hospital.
At the hearing, Ms. Abreu did not contest the underlying facts presented to her at Bellevue Hospital; in fact, she admitted them.
Ms. Abreu elected the cooperation route and went downtown with the investigators knowing she would return to work by 4 p.m. Showing Ms. Abreu surveillance photographs of her children, while telling her to consider her children when deciding whether to cooperate, may have had a very strong emotional impact on Ms. Abreu's decision to go downtown and make statements; however, considering the totality of the surrounding circumstances, it is insufficient to render Ms. Abreu's confession not voluntary. This is particularly the case in view of Roach's testimony that he told Ms. Abreu that she was not under arrest, (id. 39), and that "from the moment she left the room, at any point in time if she did not want to go, she did not have to go, . . . that she was not required to go, but if she wanted the opportunity to cooperate, that she would need to come . . .," (id. 35, 39).
Roach admitted that he specifically selected pictures of Ms. Abreu's children to show her at Bellevue in the hope that they would provoke an emotional response and influence her decision whether to cooperate. (Id. 77-78.)
Roach also testified that he told Biggerstaff in Ms. Abreu's presence that it was Biggerstaff's responsibility to take Ms. Abreu back to work if she decided to leave at any time, (id. 39), but Biggerstaff did not recall this at the hearing, (id. 197).
Displaying photographs of a single mother's young children during interrogation — although not yet having been addressed by the courts — is coercive. Nevertheless, at the time Ms. Abreu decided to go downtown, the overall coercive effect of the interrogation fell short of that in United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981). First, unlike in Tingle and Lynumn, the possible sentence for Ms. Abreu's failure to disclose income taxes was one and a third to four years, far less than the ten year sentence in Lynumn or Alvarado and the twenty to forty year sentence in Tingle, Second, no suggestion was made that if she cooperated she would be released on her own recognizance while if she did not the prosecutor would be told that she was "stubborn or hard-headed." Rather, Ms. Abreu was told, as in United States v. Alvarado, 882 F.2d 645 (2d Cir. 1989), that her cooperation would be communicated to the prosecutor. Third, unlike in Tingle, Roach and Curran did not accuse Ms. Abreu of lying, nor did their references to her children cause her to sob. Fourth, although Ms. Abreu's overall interrogation on August 9 was lengthy — approximately four hours — she had only been at Bellevue for ten to fifteen minutes before deciding to try cooperation and accompany Roach and Curran to John St. Finally, unlike the suspects in both Tingle and Alvarado, Ms. Abreu was not physically restrained; the suspect in Alvarado was taken from a holding cell to be questioned, and the suspect in Tingle was questioned in the back of an FBI car. The Court does not view the coercion employed by Roach and Curran as undue. See United States v. Alvarado, 882 F.2d 645, 649 (2d Cir. 1989).
Such statements suggest that cooperation is the only way to avoid immediate separation from one's children.
The Court does not find credible Ms. Abreu's testimony that Roach told her that her children would be taken away from her and given to city agencies or that if she did not cooperate she would not see her children again. Both Roach and Curran deny making any such threats at the "safe house." (Hr'g Tr. 37-38, 47-48, 61, 143-44, 172.) Had such statements in fact been made, they would weigh very strongly for a finding that Ms. Abreu's statements were not voluntary, see Lynumn v. Illinois, 372 U.S. 528 (1963),United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981).
b) The "Safe House"
Once at John St., Ms. Abreu readily admitted the facts about her own conduct, her relatives' conduct, and Mr. Ney Gonzalez's conduct in obtaining checks from CCR. (Hr'g Tr. 43-46.) She also admitted withdrawing funds from the Shell Companies for non-business purposes or for her own purposes, but she showed reluctance to involve her supervisors, Mr. Brondolo and Mr. Venkataram. (Id.) Ms. Abreu did cry when asked whether she had a romantic relationship with one of her supervisors but otherwise remained calm, declining to answer questions about them. (Id. 99-100, 144.) No one demanded she tell them what they wanted to know; no threats were made. (Id. 46, 47, 109.) Instead, gentle persuasion was applied, (id. 109), no one yelled, (id. 109, 153-54), and Ms. Abreu was calm, (id. 37). At no time did Ms. Abreu ask to leave, or did she indicate that she did not want to talk to Roach and Curran. (Id. 142.) Roach finally stated that they "can't stay here all day," told Ms. Abreu that her family members were about to be interviewed about their participation in the crimes, and giving her a "last chance," called on his cell phone to DOI exclaiming in her presence "start the interviews." (Id. 237-38.) Roach then left the safe house, but was immediately called back by Curran or Merriwether when Ms. Abreu gave new information implicating her supervisors. (Id.) She was then further questioned about her supervisors for about half an hour, (see Abreu Aff. ¶ 6), at the end of which Roach made it clear she was accepted as a cooperator, had her make a recorded call to Venkataram, and arranged for her to be picked up around 2 p.m. to come back the next day, (Hr'g Tr. 55-56).
The Court finds Roach's threat to begin the interviews of Ms. Abreu's relatives to be coercive; however this threat, in the light of the totality of the surrounding circumstances, does not rise to the level of undue pressure that would render Ms. Abreu's resulting statements after that coercion non-voluntary. She was not in custody or subject to conditions amounting to custody since she had voluntarily gone to the safe house and was aware she would be returned to work at 4 p.m. Also, her statements thereafter were not primarily self-incriminating considering that she had already admitted her participation in the scheme; the new statements involved the participation of Mr. Brondolo and Mr. Venkataram in the money laundering of funds. Although there was deception in the timing of the threat — Roach was not actually prepared to immediately start interviewing Ms. Abreu's relatives, (id. 49-53) — DOI did have sufficient evidence indicating that Ms. Abreu's relatives were involved in the alleged criminal scheme to warrant interrogating them at that time. See Gibson v. Phillips, 420 F. Supp. 2d 327, 336 (S.D.N.Y. 2006) (holding that threats to interrogate family members involved in the crime does not render a confession not voluntary). Furthermore, Ms. Abreu's testimony that, following the alleged threats to invade her house and take away her children, she begged Roach and Curran not to endanger her mother's health by such conduct, is not credible. (Hr'g Tr. 143-44.)
The Court finds Ms. Abreu's testimony that she only implicated Mr. Venkataram and Mr. Brondolo after threats by Mr. Roach that her home was about to be invaded, her children given to agencies and the health of her mother to be endangered, lacking in credibility. Roach and Curran both denied those alleged threats. (Id. 47-48, 143-44.) Roach and Curran had no power to place the children in agencies and did not have knowledge of Ms. Abreu's mother's presence in the home. (Id. 22, 181.) Their testimony is corroborated by the surveillance photos which do not reveal the mother's presence. (Gov. Ex. 10.)
Roach states that he heard about the state of Ms. Abreu's mother's health later from someone else. (Id. 50.) Curran states he was unaware Ms. Abreu's mother lived in the apartment. (Id. 181.)
The Court finds that at no time, did Mr. Curran say, "Why don't you say Tom Brondolo got a cut? and did Ms. Abreu say "Brondolo got a cut." (Id. 240.) At no time did Mr. Curran say "why don't you say Raju got a cut?" and did Mr. Abreu say "Raju got a cut." (Id.) At no time did Curran then say "why don't you say you are guilty" and did Ms. Abreu say "I am guilty." (Id.) Nor did Ms. Abreu just admit to whatever Curran or Roach said, (id.), or agree to all the accusations, (Abreu Aff. ¶ 19). The testimony is not credible. No former or seasoned investigator would be satisfied with such "parrot-like" answers, and then conclude Ms. Abreu was a cooperator.
Ms. Abreu's conduct the following day, August 10, and her conduct following August 11 is consistent with regarding herself as a DOI cooperator. (Hr'g Tr. 275-77.)
c) DOI Headquarters
At the end of interview at John St., Ms. Abreu stated she was willing to come back the next day after Roach suggested she call in sick. (Hr'g Tr. 147.) Ms. Abreu agreed to be picked up at her local Blockbuster store at 2 p.m. (Id. 243). That day she walked to the Blockbuster store and took a ride to DOI's offices with Biggerstaff. (Id. 56, 246-47.) Ms. Abreu makes no allegations of specific threats about her children on that day but states the photographs of her children as well as copies of Infodata checks were visible on the conference room table. (Id. 251-52.) Roach denies the photographs were present or visible. (Id. 60.) Ms. Abreu testified she was yelled at, (id. 280), which both Curran and Roach deny, (id. 47, 61, 109, 142). Ms. Abreu's statement that Zander "put the [Infodata] check close to [her] face [saying] [e]xplain to me why this check is payable to the mortgage company" is not credible. (Id. 255-56.) First, Roach denies such conduct. (Id. 61.) Second, the two checks are on their face payments of principal of $15,000 and $21,000 on Ms. Abreu's mortgage loan. (Gov. Ex. 5) No further proof was required, so for an investigator to yell at Ms. Abreu while asking that question would not be conducive to cooperation as explained by Roach, (Hr'g Tr. 46-47), nor would it be rational action taken by an experienced investigator who had already obtained the answer the previous day, (id. 44-45).
Accordingly, the Court finds that Ms. Abreu's testimony was not credible with respect to the investigative tactics she alleges that Roach and Curran employed, and finds by a preponderance of the evidence that her statements were voluntary — despite the coercive tactics that Roach and Curran did employ — and should not be suppressed.
C. Fifth Amendment Right to Counsel
The Fifth Amendment right to counsel only applies in situations of custodial interrogation. McNeil v. Wisconsin, 501 U.S. 171, 178-79 (1991). Aside from the dispositive fact that the interrogations of August 9 and 10, 2005 were found to be noncustodial, the testimony and evidence at the hearing failed to establish that Ms. Abreu affirmatively invoked her right to counsel. Ms. Abreu testimony that her request for a lawyer was rebuked — "I said, I want to call my lawyer. . . . And Mr. Roach laughed at me . . . say, Ha, ha, ha. Which lawyer is going to come here in 10 minutes? You have to come with us downtown. You are in big trouble," (Hr'g Tr. 228) — is not credible. Both Roach and Curran testified consistently, and credibly, that there was never any mention of a lawyer on those days. (Id. 36-37, 61, 136, 142, 150.) Additionally, Ms. Abreu evidently made no effort to contact a lawyer while she was alone from the time that she was taken back to the OCME on August 9, 2005 until she was picked up the following afternoon for a second day of interviews. Accordingly, since the Court finds that Ms. Abreu never requested a lawyer during the interrogation — in addition to finding that she was not in custody — Ms. Abreu's Fifth Amendment right to counsel was not violated.
III. CONCLUSION
For the foregoing reasons, the Defendant's motion to suppress statements she made to DOI investigators on August 9 and 10, 2005 is denied.
IT IS SO ORDERED