These are factors that would typically weigh against the conclusion that a defendant was in custody. See, e.g., United States v. FNU LNU, 653 F.3d 144, 155 (2d Cir. 2011) (fact that weapons were not drawn and no restraints were used relevant to finding that defendant's interrogation was not custodial); Newton, 369 F.3d at 676 (fact that defendant was told he was not under arrest is important factor in evaluating whether defendant was in custody); United States v. Badmus, 325 F.3d 133, 139 (2d Cir. 2003) (agents told defendant and his wife that they were not under arrest and conducted interview in familiar setting of defendant's home); United States v. Mitchell, 966 F.2d 92, 99 (2d Cir. 1992) (interrogation in familiar surroundings of one's home generally not custodial); United State v. Abbas, 418 F. Supp. 2d 280, 286 (W.D.N.Y. 2006) (considering it relevant that interview took place at defendant's workplace rather than at police station); United States v. James, 113 F.3d 721, 727 (7th Cir. 1997) (no custodial interrogation where questioning took place at defendant's workplace); United States v. Martindale 790 F.2d 1129, 1133 (4th Cir. 1986) (interrogation in defendant's own office not custodial); United States v. Rorex, 737 F.2d 753, 756-57 (8th Cir. 1984) (same).

Hutchins also points to the fact that he was seated at a small table with law enforcement agents seated directly across and beside him, but there is no indication that this prevented him from leaving. Compare withUnited States v. Abbas, 418 F.Supp.2d 280, 286 (W.D.N.Y. 2006) (finding that the defendant's freedom of movement was restricted akin to a formal arrest where the agent “stood and blocked the door to the outside of the store”). Nor is there any “suggestion that, at any point, [he] attempted to terminate the interview or was prevented from doing so”.

However, the Court notes that Defendant was questioned for about an hour and a half over the course of the morning, a period which has been found sufficient to support a finding that a defendant was in custody. See, e.g., United States v. McDow, 206 F.Supp. 3D 829, 837, 848 (S.D.N.Y. 2016) (finding defendant was in custody during approximately five minute encounter with police where he was detained, searched, and then questioned concerning his possession of illegal drugs); United States v. Abbas, 418 F.Supp.2d 280, 285-86 (W.D.N.Y. 2006) (holding that defendant was in custody during an interrogation that lasted no more than an hour); Tankleff, 135 F.3d at 244 (finding defendant was in custody where he was subjected to a two-hour interview both inside a police car and later in a windowless room at a police station).

Opinions issued from the Second, Fifth, Sixth, and Eighth Circuits, as well as from numerous district courts have explicitly held that a defendant bears the burden of proving he was in custody at the time incriminating statements were made. See, e.g., United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir. 1989); United States v. Smith, 783 F.2d 648, 650 (6th Cir. 1986); United States v. Davis, 792 F.2d 1299, 1308 (5th Cir. 1986); United States v. Arboleda, 633 F.2d 985, 989 (2d Cir. 1980); United States v. Abbas, 418 F. Supp. 2d 280, 285 (W.D.N.Y. 2006); United States v. Donaldson, 493 F. Supp. 2d 998, 1003 (S.D. Ohio 2006); United States v. Morriss, No. 06-6010, 2006 WL 3519344 (W.D. Mo. Dec. 6, 2006). But this Court need not resolve the issue or forecast whether the Ninth Circuit would adopt the approach of these other Circuits.

(Hearing Tr. (Dkt. No. 132) at 83) Actions taken by police officers to restrict a suspect's freedom of movement weigh in favor of finding Miranda custody. See J.D.B. v. N. Carolina , 564 U.S. 261, 297, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011) ( "The Miranda custody rule has always taken into account ... restrictions on a suspect's freedom of movement...."); Cruz v. Miller , 255 F.3d 77, 82 (2d Cir.2001) ("depriving a person of 'freedom of action' is relevant to triggering Miranda warnings"); United States v. Abbas , 418 F.Supp.2d 280, 286 (W.D.N.Y.2006) (finding custody for Miranda purposes where a law enforcement agent "stood and blocked the door" to prevent the suspect from leaving). Officer Gembecki also exercised control over McDow by conducting a thorough search of his pockets.

Hearing Transcript at 4:9-14. This is in agreement with opinions issued from the Second, Fifth, Sixth, and Eighth Circuits, as well as from numerous district courts that have explicitly held that a defendant bears the burden of proving he was in custody at the time incriminating statements were made. See, e.g., United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir. 1989); United States v. Smith, 783 F.2d 648, 650 (6th Cir. 1986); United States v. Davis, 792 F.2d 1299, 1308 (5th Cir. 1986); United States v. Arboleda, 633 F.2d 985, 989 (2d Cir. 1980); United States v. Abbas, 418 F. Supp. 2d 280, 285 (W.D.N.Y. 2006); United States v. Donaldson, 493 F. Supp. 2d 998, 1003 (S.D. Ohio 2006); United States v. Morriss, No. 06-6010, 2006 WL 3519344 (W.D. Mo. Dec. 6, 2006). i. Defendant Was Not In Custody For Purposes Of Miranda

The Court notes that on a motion to suppress statements, it is the defendant who bears the burden of demonstrating that he was subject to custodial interrogation. United States v. Pena, 961 F.2d 333, 338 (2d Cir. 1992); see also United States v. Abbas, 418 F.Supp.2d 280, 285 (W.D.N.Y. 2006) (collecting cases); United States v. Jailall, 2000 WL 1368055m at *8 (S.D.N.Y. Sept. 20, 2000) (noting that defendant bears the burden of showing the existence of a disputed fact that supports suppression). However, when a defendant seeks to suppress his statements on the additional grounds that such statements were involuntary made, as both Kotelsky and Gershkovich do here, in opposing the motion, "the Government bears the burden to demonstrate, by a preponderance of the evidence," that challenged statements were not obtained "under circumstances that overbore [the defendant's] will at the time it was given."

United States v. Smith, 783 F.2d 648, 650 (6th Cir. 1986); United States v. Arboleda, 633 F.2d 985, 989 (2d Cir. 1980). The Fifth Circuit, Eighth Circuit, and numerous district courts have also explicitly held that a defendant bears the burden of proving he was in custody at the time incriminating statements were made. United States v. Davis, 792 F.2d 1299, 1308 (5th Cir. 1986); United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir. 1989); United States v. Abbas, 418 F. Supp. 2d 280, 285 (W.D.N.Y. 2006); UnitedStates v. Donaldson, 493 F. Supp. 2d 998, 1003 (S.D. Ohio 2006);United States v. Morriss, No. 06-6010, 2006 WL 3519344 (W.D. Mo. Dec. 6, 2006). In the original opinion filed by the Ninth Circuit in United States v. Bassignani, the court addressed the specific issue regarding the burden of proof in demonstrating whether a defendant is in custody for purposes of Miranda. 560 F.3d 989, 993 (9th Cir. 2009) (holding that defendant bore the burden of proof and noting that the language in the Miranda opinion regarding the government's "heavy burden" applied to determinations regarding waiver, not custody).

Case law suggests the contrary. See, e.g., United States v. Andress, 943 F. 2d 622, 626 (6th Cir. 1991) (holding that a new period of excludable delay under subsection (F) begins immediately upon the filing of the magistrate-judge's Report and Recommendation); United States v. Long 900 F. 2d 1270, 1275 (8th Cir. 1990) (same); United States v. Abbas, 418 F. Supp. 2d 280, 287 n. 5 (W.D.N.Y. 2006) (same); United States v. Aldahondo, 2004 WL 170252 * 3 n. 1 (D.P.R. 2004) (noting that once motion is under advisement, magistrate judge has up to 30 excludable days to decide it); United States v. Gomez Villamizar, 762 F. Supp. 1550, 1551 (D.P.R. 1991) (same). To follow a rule of tolling as suggested by the government would also lead to an illogical result. If no referral of a motion is made to a magistrate-judge, a district judge only has thirty (30) excludable days under the Act.