Opinion
04 Cr. 0455 (JSR).
February 7, 2005
MEMORANDUM ORDER
Defendant Paul Thomas moves to suppress both oral and written statements made by him to the Office of Inspector General of the Federal Emergency Management Agency ("FEMA") in the Department of Homeland Security. The factual background to the motion is as follows:
On January 17, 2003, the defendant met with Department of Homeland Security Special Agents Dominick DelMastro and Edward Kleppinger at their request. See Affidavit of Paul Thomas, sworn to June 21, 2004, ¶ 2. The Special Agents asked the defendant a series of questions about an application he had made to FEMA requesting emergency disaster relief in the wake of the terrorist attacks of September 11, 2001. Id. It is undisputed that the Special Agents did not read defendant his Miranda rights. However, while the defendant claims that "I specifically asked whether I needed a lawyer and was told that I did not,"id. at ¶ 3, the Government disputes this assertion. See Letter from Assistant U.S. Attorney Christine Meding, dated July 16, 2004 ("Government Letter"), at 4.
In any event, in the two-page sworn affidavit that defendant now seeks to suppress, defendant acknowledged to the agents that he had wrongfully altered one document and falsified another in connection with the application to FEMA. See Affidavit of Paul Thomas, sworn to January 17, 2003. He also stated that the actions were wrong and that he was truly sorry. Id. He signed both pages of the affidavit.
According to defense counsel, several months after the interview "the government contacted Mr. Thomas, arranged for him to be represented by the Federal Defenders Office of the Legal Aid Society, and attempted to resolve this case by getting Mr. Thomas' plea to a one-count felony information." Affirmation of Elizabeth M. Fink, Esq., 6/20/04, at ¶ 3. These negotiations were unsuccessful, and in due course a grand jury filed a three-count indictment charging Thomas with stealing government money, providing false statements to FEMA, and wire fraud, all in connection with the FEMA application. See Indictment, 04 Cr. 0455.
Defendant now argues that this Court should suppress his affidavit given to FEMA, and any connected oral statements, on the ground that they were obtained in violation of the Fifth and Sixth Amendments, as no Miranda warnings were given and defendant allegedly asked if he needed an attorney and was told that he did not. In the alternative, defendant requests that the Court hold an evidentiary hearing on the admissibility of the statements.
Defendant is not entitled to an evidentiary hearing because he does not "`state sufficient facts which, if proven, would [require] the granting of the relief requested.'" United States v. Carrasquillo, 2000 WL 45708, at *2 (S.D.N.Y. Jan. 19, 2000) (quoting United States v. Culotta, 413 F.2d 1343, 1345 (2d Cir. 1969)). That defendant did not receive Miranda warnings is immaterial because he was not in custody at the time of the interview and accordingly no Miranda warnings were required.See United States v. Mitchell, 966 F.2d 92, 98 (2d Cir. 1992) ("in the absence of actual arrest, an interrogation is not `custodial' unless the authorities affirmatively convey that the defendant is not free to leave"). Here, far from alleging any facts that would indicate that he was in custody at the time of the questioning, defendant avers that he was present at the agents' request.
Although the Government disputes defendant's allegation that he asked if he needed an attorney and was told that he did not, even if this exchange took place no violation of defendant's Fifth or Sixth Amendment rights occurred. No Sixth Amendment right to counsel had attached at the time of the interview because defendant was merely a suspect in a criminal investigation and no adversary criminal proceedings had been initiated. See Davis v. United States, 512 U.S. 452, 456-57 (1994) (citing United States v. Gouveia, 467 U.S. 180, 188 (1984)). No Fifth Amendment right to counsel had attached, either, because defendant was not subject to custodial interrogation. See, e.g., Davis, 512 U.S. at 457; United States v. Bin Laden, 160 F. Supp. 2d 670, 680 (S.D.N.Y. 2001) ("[T]he right to counsel under the Fifth Amendment is no greater than the right to have the assistance and presence of counsel during custodial interrogation"). See also Diaz v. Senkowski, 76 F.3d 61, 64-65 (2d Cir. 1996) (defendant's question "Do you think I need a lawyer?" "did not effectively assert his right to counsel," even though defendant in custody, because defendant "failed to express his intent reasonably clearly."). If a defendant who has a right to counsel is deemed not to sufficiently invoke that right by asking whether he needs an attorney, then a defendant who has no right to counsel cannot be said to have invoked any right by asking the same question.
Accordingly, the motion to suppress the statement is denied. As previously scheduled, the trial of this case will proceed on February 28, 2005.
SO ORDERED.