Opinion
CRIMINAL ACU/EON NO. 02-23
August 5, 2003
ORDER
AND NOW, this day of August, 2003, pursuant to the accompanying findings of fact and conclusions of law, it is hereby ORDERED that the defendant's motion to suppress statements and physical evidence pursuant to Rule 12(b)(3) of the Federal Rules of Criminal Procedure (doc. no. 54) is DENIED.
AND IT IS SO ORDERED.
FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS AND PHYSICAL EVIDENCE.
I. INTRODUCTION
Defendant Pedro Nieves Rivera ("defendant") is charged with: (1) one count of conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5); (2) one count of murder in aid of racketeering, in violation of 18 U.S.C. § 1959 (a)(1); (3) one count of conspiracy to commit murder for hire, in violation of 18 U.S.C. § 1958; (4) one count of murder for hire and aiding and abetting, in violation of 18 U.S.C. § 2 1958; and (5) one count of carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).
At trial, the Government intends to introduce into evidence certain incriminating statements made by defendant to Federal Agents at the Federal Bureau of Investigations ("FBI") office in the Commonwealth of Puerto Rico (the "FBI office") and before a federal grand jury. The Government also plans to introduce forensic evidence derived from blood samples, buccal cavity swabs, fingerprints and palm prints obtained from the defendant on August 29, 2001 at Centro Medico, a medical facility in Puerto Rico, and at the FBI office.
Defendant has filed a motion to suppress: (1) the physical evidence obtained from the defendant at Centro Medico and the FBI office, i.e., blood samples, buccal cavity swabs, fingerprints and palm prints; (2) the admissions made by defendant at the FBI office in Puerto Rico; and (3) his testimony before the grand jury. First, the defendant contends that the physical evidence obtained from the defendant's person at Centro Medico and the FBI office should be suppressed because the defendant was never shown or given a copy of the search warrant which authorized the seizure of blood samples, buccal cavity swabs, fingerprints and palm prints. See Fed.R. Grim. P. 41(f)(3). Second, defendant contends that the admissions he made while being questioned by FBI agents in Puerto Rico should be suppressed because those admissions were made during a custodial interrogation, which occurred without the defendant having been advised of his Fifth Amendment right against self incrimination and his Sixth Amendment right to counsel, as required underMiranda v. Arizona, 384 U.S. 436 (1966). Third, defendant contends that his testimony before the grand jury should be suppressed because his waiver of his Fifth Amendment right against self-incrimination and, in turn, his grand jury testimony, were made involuntarily, as a result of unfulfilled promises of leniency that were allegedly made by the Government. Finally, defendant contends that the admissions made while being questioned by FBI agents in Puerto Rico, as well as his grand jury testimony, should be suppressed because introduction of those statements into evidence would violate the rule requiring proof of a corpus delicti before incriminating statements made by the defendant can be introduced into evidence. See Gov't of the Virgin Islands v. Harris, 938 F.2d 401, 408-10 (3d Cir. 1991).
Under Third Circuit law, the requirement that there be proof acorpus delicti before incriminating statements made by the defendant can be introduced into evidence requires only that confessions and admissions be corroborated by "substantial independent evidence which would tend to establish the trustworthiness of the statement."Harris, 938 F.2d at 410. The corroborative evidence offered by the Government is deemed sufficient to satisfy the corpus delicti requirement where such evidence "supports the essential facts admitted [in defendant's statements] sufficiently to justify a jury inference of [the statements'] truth." Id.
As noted by counsel for the Government, it is difficult to rule on the issue of corpus delicti on pretrial motion because the court has not yet heard sufficient evidence that would enable the court to determine whether or not there is substantial corroboration of the defendant's statements. Accordingly, counsel for the Government suggested that the court accept a proffer of the evidence that the Government intends to present on the issue of corpus delicti and issue a tentative or provisional ruling, in order to provide guidance for the parties, subject to the condition that the Government present the proffered evidence at trial. Counsel for the defendant did not oppose this recommendation.
The court agrees with the recommendation of counsel. Therefore, the findings of fact and conclusions of law stated herein with regards to thecorpus delicti issue are only provisional findings of fact and conclusions of law, and are subject to the condition that the Government is able to present the evidence contained in its proffer at trial.
The Government, on the other hand, contends that: (1) defendant's blood samples, buccal cavity swabs, fingerprints and palm prints were seized pursuant to a valid search warrant, a copy of which was shown, read, explained and given to the defendant; (2) the statements made by the defendant in Puerto Rico were voluntarily made under circumstances that did not require Miranda warnings; (3) the defendant's grand jury testimony was voluntary, without any promises of leniency having been made to defendant by the Government; and (4) defendant's admissions are corroborated by "substantial independent evidence which would tend to establish the trustworthiness of the statement[s]." Harris, 938 F.2d at 410. Thus, argues the Government, neither the admissions made by defendant to FBI agents in Puerto Rico, nor defendant's testimony before the federal grand jury, nor the blood samples, buccal cavity swabs, fingerprints and palm prints taken from defendant in Puerto Rico, should be suppressed in this case.
See supra note 1.
On May 8, 9, 27 and 28, 2002, the court held a hearing on defendant's motion, during which the court heard testimony from Special Agent Eric Metz of the FBI ("Agent Metz"), Agent Reynaldo Rivera of the Puerto Rico Police Department ("Agent Rivera"), Special Agent Lynn Monahan of the FBI ("Agent Monahan") and Ricardo Izurieta, Esq. ("Mr. Izurieta"), as well as argument from counsel. Based on the testimony, documentary evidence and argument at the hearing, as well as the written submissions of counsel, the court makes the following findings of fact and conclusions of law.
II. FINDINGS OF FACT
A. The Events of August 29, 2001.
1. On August 23, 2001, United States Magistrate Judge Gustavo A. Gelpi issued a search warrant based on an affidavit of probable cause sworn to by Agent Monahan (the "warrant"). (N.T. 5/9/03, pp. 47-48).
2. The warrant authorized the seizure of a blood sample, four cotton swabs of the buccal cavity, finger prints and palm prints of the defendant, to be seized on or before September 2, 2001, at anytime between the hours of 6:00 a.m. and 10:00 p.m. (N.T. 5/9/03, pp. 47-48; Gov't Ex. 1).
3. At approximately 6:40 a.m. on August 29, 2001, Agents Metz and Monahan of the FBI, accompanied by Agent Rivera, Officers Nieves and Oyola and two other officers of the Puerto Rico Police Department (collectively "the agents'") approached a home, in Puerto Rico, where they believed the defendant could be found. (N.T. 5/8/03, pp. 109-113).
4. Agent Metz, Agent Monahan, Agent Rivera and Officers Oyola and Nieves were wearing plain clothes. (N.T. 5/8/C3, p. 24). Only the two unnamed officers from the Puerto Rico Police Department were uniformed. (N.T. 5/8/03, p. 23).
5. After identifying themselves to a woman named Frida, a number of the agents were admitted by Frida into the house. Frida, it turned out, was the mother of defendant's girlfriend, Francesca. (N.T. 5/8/03, pp. 111-113).
6. Frida informed the agents that the defendant was not in the house and offered to take them to the house where the defendant was staying. (N.T. 5/8/03, p. 113).
7. Frida led the agents, by foot, to a nearby house on the same street. While on the way, Frida called defendant on a cell phone and advised him that she and federal agents were on the way to his house. Frida and the agents arrived at the second house at approximately 7:35 a.m. (N.T. 5/9/03, p. 55). The front of the house was surrounded by a gated metal fence. Defendant came to the front door of the house, inside the fence, dressed in boxer shorts and a tee-shirt. Following a short conversation with Frida and the agents, defendant opened the gate and admitted the agents inside the house. (N.T. 5/8/03, pp. 28-30, 113-14).
8. Agent Metz, Agent Monahan, Agent Rivera, and Officers Nieves and Oyola entered the house, (N.T. 5/8/03, pp. 23-24), followed soon thereafter by the other two Puerto Rico Police Department officers. (N.T. 5/8/03, pp. 23-24).
9. Although they were armed, none of the agents drew their weapons either before or after entering the house. (N.T. 5/8/03, pp. 32-33).
10. After entering the house, the agents requested, and were granted, permission to conduct a brief search of the house in order to determine who was in the house and whether there was anything in the house that could jeopardize the safety of the agents. (N.T. 5/8/03, pp. 31). Inside the house were defendant, Francesca, Frida and the defendant's two young children. (N.T. 5/8/03, pp. 80-81).
11. The agents were also given permission to search a vehicle that was parked outside the house. (N.T. 5/8/03, pp. 34-35).
12. Spanish is the defendant's native language and his fluency in the English language is limited. Agent Rivera is a native Spanish speaker. Agent Metz is fluent in Spanish. Agent Monahan, however, does not speak Spanish.
13. After the protective search of the house was complete, Agent Monahan gave a copy of the search warrant to the defendant and Agent Rivera explained to the defendant, in Spanish, that the warrant was a federal search warrant that authorized the agents to take blood samples, buccal cavity swabs, fingerprints and palm prints from the defendant. (N.T. 5/8/03, pp. 34, 114-15; N.T. 5/9/03, pp. 48-49).
The defendant contends that the search warrant was never shown or explained to him and that a copy was never given to him, and that therefore, the evidence obtained pursuant to the warrant, i.e., defendant's blood samples, buccal cavity swabs, fingerprints and palm prints, should be suppressed. However, at the hearing on defendant's motion to suppress, Agent Metz, Agent Rivera and Agent Monahan testified that the warrant was shown and explained to the defendant, and that a copy thereof was left at the house. (N.T. 5/8/03, pp. 34, 114-15; N.T. 5/9/03, pp. 48-49). There was no testimony to the contrary. Under the circumstances of this case, the court finds the testimony of Agent Metz, Agent Rivera and Agent Monahan credible.
The only evidence offered by the defendant that could possibly support a finding that the warrant was never shown to the defendant and that a copy was never left at the house was the testimony of Mr. Izurieta, defendant's prior counsel, who testified that he was never given a copy of the search warrant by the agents, Frida, Francesca or the defendant. (N.T. 5/27/03, pp. 20, 24).
In light of the direct evidence before the court, which the court finds credible, that the warrant was, in fact, shown and explained to defendant, and that a copy was left at the house, the testimony of Mr. Izurieta establishes only that the warrant was never passed along to him by either the defendant, Francesca or Frida, not that the warrant was not shown or given to the defendant. Therefore, based on the uncontradicted testimony of Agent Metz, Agent Monahan and Agent Rivera, which the court finds credible, the court finds that the warrant was shown and explained to the defendant and that a copy was left with one of the house's occupants.
14. The defendant was told that he would have to accompany the agents to Centre Medico, where the blood samples and buccal cavity swabs would be taken, and instructed to put on additional clothing. The defendant was accompanied to his room by Agent Rivera so that he could put on additional clothing before going to Centro Medico with the agents. (N.T. 5/8/03, p. 115).
15. Upon defendant's request, he was not handcuffed until immediately before being placed in the unmarked police car that was to transport him to Centro Medico. At that time, the defendant was handcuffed with his hands in front of his body, he was placed in the back seat of the car and driven to Centro Medico. Agent Rivera, Agent Monahan, and Officer Oyola rode in the unmarked car with the defendant. Agent Metz rode to Centro Medico in a separate unmarked car with Officer Nieves. (N.T. 5/8/03, pp. 36-38, 115-17).
16. Upon arriving at Centro Medico, the defendant waited in the car while the necessary preparations for the execution of the warrant were made. (N.T. 5/8/03, pp. 120-21).
The defendant contends that he was questioned by Officer Oyola during the ride to Centro Medico and while defendant waited to enter Centro Medico. The defendant points to no evidence that he was asked any questions at this time or that he made any statements. Regardless, the Government does not seek to introduce any statements that allegedly were made by the defendant before he was taken to the FBI office for fingerprinting.
17. Just before 9:30 a.m., the defendant was taken to an area within Centro Medico, at which point, a nurse took two test tubes of defendant's blood and several buccal cavity swabs. (N.T. 5/9/03, pp. 50, 55).
18. By approximately 9:45 a.m., the nurse at Centro Medico had finished taking defendant's blood and buccal cavity swabs. At this time, Agent Metz told the defendant that they still needed his fingerprints. It was explained to the defendant that, although his fingerprints could be taken at Centro Medico, with a portable fingerprint kit, the agents would prefer to have the fingerprints taken at the FBI office. The defendant was asked whether he would agree to have his fingerprints taken at the FBI office instead of at Centro Medico. The defendant agreed to accompany the agents to the FBI office for fingerprinting. (N.T. 5/8/03, pp. 40-48; N.T. 5/9/03, pp. 50-56, 74-75).
19. The defendant was transported to the FBI office in an unmarked car. (N.T. 5/8/03, p. 41-42).
20. At some point between the time defendant's blood samples and buccal cavity swabs were taken at Centro Medico and defendant's arrival at the FBI office, defendant's handcuffs were removed. (N.T. 5/8/03, p. 45).
21. The FBI office is located within a multi-story federal office building. The defendant was taken to a secured conference room inside the FBI office where the FBI had fingerprinting equipment already in place. The defendant could not have left the federal building without first being escorted through the FBI office. (N.T. 5/9/03, pp. 11-12).
22. There was public transportation available between the FBI office and the house from which the defendant was taken by the agents. (N.T. 5/9/03, pp. 11-12).
23. At approximately 10:15 a.m., Agent Monahan began taking the defendant's fingerprints and palm prints. (N.T. 5/9/03, p. 57).
24. During the time he spent in the FBI office during the fingerprinting process, defendant was offered food, which he declined, and a bottle of water, which he accepted. The defendant was also told that he was free to use the restroom whenever he needed to. The defendant was permitted to keep and use his cell phone, and made, at least, one call to his girlfriend, Francesca. (N.T. 5/8/03, pp. 44-46).
25. At approximately 10:40 a.m., the fingerprinting process was completed. Agent Metz then told the defendant, in Spanish, that the agents appreciated his help and cooperation and that he was free to go and could leave at any time. Immediately thereafter, Agent Metz asked the defendant whether he would be willing to remain at the FBI office and discuss the investigation. The defendant agreed to stay and speak with Agent Metz. Specifically, defendant stated, "Well, since we're here, lets see what this is all about." (N.T. 5/8/03, pp. 47-49, 53-54; N.T. 5/9/03, pp. 6-7, 64-65).
Although Agent Rivera did not accompany the defendant and the agents from Centro Medico to the FBI office, Agent Rivera eventually went to the FBI office, arriving almost immediately after the fingerprinting process was complete. (N.T. 5/9/03, pp. 5-7).
26. After the defendant had agreed to stay and discuss the investigation with Agent Metz, Agent Metz showed the defendant numerous photographs of persons and evidence connected to the murder of Jose Hernandez ("Hernandez") in Philadelphia, Pennsylvania, the crime with which defendant now appears charged before this court. The defendant's eyes welled-up with tears when he saw the photographs. (N.T. 5/8/03, pp. 34, 114-15; N.T. 5/9/03, pp. 48-49). The defendant cried at several points in the discussion and, at one point, indicated that the matter had been weighing on him for a long time, and that, by discussing the matter with Agent Metz, a large weight was lifted from his shoulders. (N.T. 5/8/03, p. 58). Whenever the defendant became emotional, Agent Metz would stop questioning the defendant and give him time to compose himself. (N.T. 5/8/03, pp. 50, 59).
27. The defendant discussed the investigation with Agent Metz for approximately 45 minutes, during which the defendant responded to questions about various photographs and discussed his involvement in the murder of Hernandez, making numerous damaging admissions. (N.T. 5/8/03, pp. 52-53; Gov't Ex. 4).
28. After the defendant had made these admissions, Agent Metz and Agent Monahan conferred and decided that the defendant was no longer free to leave and that they would now detain him and seek an arrest warrant. No further questions were asked of the defendant and, at the request of Agent Metz, Agent Rivera advised the defendant, in Spanish, of his Miranda rights. (N.T. 5/8/03, pp. 53-56, 59-61).
29. The defendant was not ill on the day of the relevant events, was not under the influence of any drugs or alcohol during the time he was with the agents and appeared to understand everything that was said to him by the agents. (N.T. 5/8/03, pp. 64-65; N.T. 5/9/03, pp. 10-11).
As previously stated, the defendant's native language is Spanish and, as indicated above, all relevant communications between the defendant and the agents took place in the Spanish language.
30. The defendant was cooperative with the agents from the time they encountered him in the early morning. By the same token, none of the agents raised his or her voice to the defendant, threatened the defendant or promised him anything in order to obtain defendant's compliance with their requests and directives throughout the day. (N.T. 5/8/03, pp. 48-49; N.T. 5/9/03, pp. 53-54).
31. The defendant was born on April 10, 1978 and, thus, was 23 years and four months old on August 29, 2001. (N.T. 5/8/03, p. 67). Additionally, this was not the defendant's first contact with law enforcement. He was previously arrested in 1997 for drug charges. (N.T. 5/9/03, p. 49).
B. The Defendant's Testimony Before the Grand Jury.
1. From the time the defendant was charged with the instant offense on August 29, 2001, through March 10, 2002, he was represented by Mr. Izurieta, who is an attorney in good standing admitted to practice in the federal district court in the District of Puerto Rico. (N.T. 5/27/03, pp. 13-17).
2. On September 11, 2001, the defendant and Mr. Izurieta signed an "off the record" proffer letter, (Gov't Ex. 5), which established certain ground rules for "off the record" proffer meetings between the Government and the defendant. Pursuant to the signed proffer letter, the defendant, in the presence of Mr. Izurieta, was debriefed by Government agents on several occasions between September and November of 2001. (N.T. 5/28/03, pp. 8-11).
3. Prior to November 5, 2001, Mr. Izurieta and the Government discussed the possibility that defendant would agree to testify before a federal grand jury regarding the murder of Hernandez. (N.T. 5/28/03, pp. 12-13).
4. On November 5, 2001 Assistant United States Attorney Thomas Perricone ("Mr. Perricone") faxed a letter to Mr. Izurieta detailing the conditions under which the defendant would testify before the grand jury. (Gov't Ex. 2). The letter explicitly stated that, if defendant chose to testify before the grand jury, such testimony, unlike the previous debriefings that took place pursuant to the proffer letter, would be "on the record," and, therefore, could be used against the defendant at trial. The letter also explicitly stated that no plea agreement had been reached, that no promises were being made to the defendant in exchange for his grand jury testimony and that the defendant could still face the maximum sentence permitted by law. (N.T. 5/27/03, p. 34; Gov't Ex. 2).
5. Mr. Izurieta received and reviewed Mr. Perricone's November 5, 2001 letter with the defendant. On November 9, 2001, Mr. Izurieta's responded to Mr. Perricone as follows: "This is to confirm our agreement in which my client Pedro Nieves Rivera would testify before [t]he [g]rand [j]ury at the time and place as be convenient for the [G]overnment. I have explained and advised my client about this matter and he is aware of its consequences." (N.T. 5/27/03, p. 34; Gov't Ex. 3).
6. On November 15, 2001, the defendant testified under oath before a federal grand jury. The transcript of defendant's grand jury testimony was admitted into evidence, for the purposes of defendant's motion to suppress, as Government Exhibit 9. (N.T. 5/9/03, p. 87). As reflected in the transcript, at the start of the proceedings, the defendant was advised on the record of the nature of the investigation and the charges against him. He was advised that he could refuse to answer any questions if the answer would tend to incriminate him, that no one could force him to testify and that his testimony could be used against him in court. In response, the defendant stated that he understood his rights, that he had discussed the possibility of testifying before the grand jury with his attorney and that he wished to testify before the grand jury. The defendant also testified that he understood that there were no agreements between him and the Government concerning the consequences of a guilty plea, that there had been no plea agreement entered into between the defendant and the Government and that he understood that, despite his testimony before the grand jury, he could still face the maximum sentence for all crimes with which he was charged. (Gov't Ex. 9, pp. 2-7).
7. The defendant was subsequently offered a plea agreement by the Government. The defendant agreed to the terms of the plea agreement and, on May 8, 2002, signed a draft proposed plea agreement. (N.T. 5/28/03, pp. 13-14; Gov't Ex. 6).
8. The defendant subsequently declined to enter a plea of guilty. (N.T. 5/27/03, pp. 56-59).
C. The Government's Proffer with Regards to the Issue of Corpus Delicti.
1. The Government's proffer with regards to this issue contained the following facts:
a. The defendant's fingerprints are on the car in which the murder weapon was found.
b. The defendant's DNA was found in a batting glove that was left near the location of the car containing the murder weapon.
c. The individual who allegedly hired the defendant to commit the murder of Hernandez will so testify at trial.
d. A forensic pathologist will testify at trial that the cause of Hernandez's death was a gunshot wound and that the manner of Hernandez's death was homicide.
See supra note 1.
III. CONCLUSIONS OF LAW.
A. The Blood Samples, Buccal Cavity Swabs, Fingerprints and Palm Prints Taken from the Defendant in Puerto Rico should not be Suppressed at Trial.
1. The court having found that the search warrant, which authorized the seizure of defendant's blood samples, buccal cavity swabs, fingerprints and palm prints, was shown and explained to the defendant and that a copy thereof was given to defendant, and no other allegations of error with regards to the search warrant having been made by defendant, the court finds that the Government's execution of the search warrant complied with the requirements of Rule 41 of the Federal Rules of Criminal Procedure. Therefore, the evidence seized pursuant to and under the authority of the search warrant, i.e., defendant's blood samples, buccal cavity swabs, fingerprints and palm prints, should not be suppressed at trial.See Fed.R.Crim.P. 41.
B. The Circumstances under which the Defendant made Admissions and Incriminating Statements at the FBI Office in Puerto Rico did not Violate his Miranda Rights.
1. The defendant was "in custody" from the time the agents encountered him at the house where he was found, approximately 7:35 a.m., until the taking of his fingerprints at the FBI office was completed and he was told, by Agent Metz, that he was free to go, approximately 10:40 a.m.
This is uncontested.
2. However, the defendant was not "in custody" from the time he was told by Agent Metz that he was free to leave the FBI office until he was advised of his Miranda rights by Agent Rivera. Therefore, the agents were not required to provide Miranda warnings to the defendant prior to or at any time during his discussion with Agent Metz regarding his involvement in the murder of Hernandez.
Miranda v. Arizona, 384 U.S. 436 (1966) provides that an individual who makes incriminating statements and/or admissions while under custodial interrogation must have been advised of his Fifth Amendment right against self incrimination and his Sixth Amendment right to counsel before such statements were made in order for the statements to be admissible at trial. Miranda, 384 U.S. at 479. The key inquiry in determining whether law enforcement officials are required to advise a person of his or her Miranda rights in a given situation is whether or not the individual is in custody. See Berkemer v. McCarty, 468 U.S. 420, 429 (1984). To determine whether an individual is in custody, courts look to the objective circumstances, from the point of view of a reasonable person in the suspect's position, to determine whether such a reasonable person would believe that he or she was free to leave. See id. at 442.
Based on the foregoing findings of fact, the court concludes that from the time the defendant was told by Agent Metz that he was free to go until the defendant was read his Miranda rights by Agent Rivera, a reasonable person in defendant's situation would have believed that he was, indeed, free to leave.
As stated by the Third Circuit, the ultimate inquiry in determining whether an individual is in custody, or not free to leave, is "whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." United States v. Leese, 176 F.3d 740, 743 (3d Cir. 1999). "Where, as here, the individual has not been openly arrested when the statements are made, something must be openly said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates they would not have heeded a request to depart or to allow the suspect to do so." Id. (citations and internal quotations omitted).
Among the factors courts have considered in determining whether or not an individual is in custody are: (1) whether the suspect was, in fact, told that he was not under arrest or that he was free to leave, see United States v. Coutchavlis, 260 F.3d 1149, 1157-58 (9th Cir. 2001); United States v. Muegqe, 225 F.3d 1267, 1269-71 (11th Cir. 2000); Burket v. Anqlone, 208 F.3d 172, 197 (4th Cir. 2000); Leese, 176 F.3d at 744; Thatsaphone v. Weber, 137 F.3d 1041, 1045 (8th Cir. 1998); (2) whether the investigating officers used coercive tactics or force, including, but not limited to, the use of a harsh tone of voice, displaying weapons or physically restricting the suspect, see United States v. Hanson, 237 F.3d 961, 964-65 (8th Cir. 2001); Combs v. Coyle, 205 F.3d 269, 284-85 (6th Cir. 2000); United States v. Jones, 187 F.3d 210, 218 (1st Cir. 1999); Leese, 176 F.3d at 744; Flemming v. Collins, 917 F.2d 850, 853 (5t h Cir. 1990); (3) whether or not the suspect voluntarily submitted to questioning, see Coutchavlis, 260 F.3d at 157-58; Burket, 208 F.3d at 197;Thatsaphone, 137 F.3d at 1045; United States v. Bautista, 145 F.3d 1140, 1148 (10th Cir. 1998), (4) whether requests for breaks in the questioning were honored; see Leese, 176 F.3d at 744; and (5) the length of the interrogation, see Tankleff v. Senkowski, 135 F.3d 235, 240 (2d Cir. 1998). All of these factors weigh in favor of finding that a reasonable person would have believed he was free to leave at the time he made the incriminating statements.
In support of his contention that a reasonable person in his situation would not have felt free to leave, the defendant relies primarily on facts/circumstances that took place before Agent Metz advised the defendant that he was, in fact, free to leave. Although defendant's experiences while in custody, i.e. from the time he was taken to Centro Medico, at approximately 7:35 a.m., until his fingerprints were taken at the FBI office, at approximately 10:40 a.m., should be taken into account for the purposes of determining whether a reasonable person in defendant's situation would feel free to leave once his fingerprints were complete, the weight of these experiences is substantially lessened once the defendant is subsequently told that he is free to go.
In any event, the circumstances of defendant's custody until 10:40 a.m. were not very restrictive. As noted above, at the request of the defendant, he was not handcuffed inside his house. During the execution of the search warrant, he was extremely cooperative with the agents and, in turn, the agent were extremely courteous towards defendant. The defendant does not claim that he was badgered or browbeaten. Nor was he yelled at by the officers. Furthermore, he was permitted to possess and use his cell phone while in police custody. He was offered food and water. He was only made to wear handcuffs during part of the custodial period. Finally, there is no indication that the agents lied to the defendant or mislead him in a manner that would cause him to doubt Agent Metz when he told the defendant that he was free to go, nor was Agent Metz's statement coupled with any indication that, had defendant chosen to leave the FBI office, he would have been subjected to adverse consequences.
More importantly, the defendant voluntarily accompanied the agents to the FBI office in order to have his fingerprints completed there. He was then expressly told that he was free to leave. In short, there is no evidence on the record that the agents used coercive tactics, force or the threat of force in order to induce him to answer any questions. Agent Metz gave the defendant ample time to compose himself whenever he became emotional and the interrogation lasted only about forty-five minutes. In other words, the defendant has failed to point to evidence which would indicate that a reasonable person would have believed that the agents would not have heeded a request to allow the defendant to end the discussion and leave.
The defendant points to the fact that he was not offered a ride home when he was told he could leave, that he could not have exited the FBI office without an escort, that he was a suspect in the investigation and that the discussion between he and Agent Metz took place within the FBI office as evidence that a reasonable person would not have concluded that he was free to leave. The court disagrees.
One, the court finds that the failure of the agents to offer the defendant a ride home, under the circumstances, is not conclusive. As indicated above, public transportation from the FBI office to defendant's house was readily available. Two, the fact that defendant would have required the assistance of an escort in order to leave the FBI office does not warrant a finding that a belief that he was not free to leave would have been reasonable. In fact, the defendant does not claim that, had he chosen to leave after his fingerprints were completed, he would not have been escorted out of the FBI office. Three, the fact that the defendant was a suspect and that the discussion occurred within the FBI office does not, in and of itself, support a finding that the defendant was in custody. As stated by the Supreme Court:
A non-custodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a "coercive environment.'' Any interview of one suspected of a crime by a police officer will have coercive aspects to it simply by virtue 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. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.Oregon v. Mathiason, 429 U.S. 492, 495 (1977),cited in, Thomson v Keohane, 516 U.S. 99, 121 (1995). Therefore, the court finds that, once the defendant's fingerprints had been completed and he was told by Agent Metz that he was not under arrest and was free to go, a reasonable person in the defendant's situation would believe that he was, in fact, free to go.
3. The court having found that the defendant was not in custody during the discussion with Agent Metz during which the defendant made the admissions he now seeks to suppress and that, therefore, the agents were not required to administer Miranda warnings to the defendant during this discussion, and the defendant having offered no evidence that these admission were otherwise made involuntarily, the court concludes that the admissions made by the defendant were made voluntarily, were not made in violation of Miranda and are, therefore, admissible at trial.
C. The Defendant's Testimony before the Grand Jury on November 15, 2001 was Voluntary.
1. The court concludes that no promises were made to the defendant or his attorney to induce the defendant to waive his constitutional rights and testify to the grand jury. Therefore, defendant's testimony before the grand jury on November 15, 2001, given after consultation with his counsel and after being explicitly advised of and after explicitly waiving his Fifth Amendment right against self incrimination and his Sixth Amendment right to counsel, was voluntary and is admissible at trial.
D. The Government's Proffer at the Hearing on the Defendant's Motion to Suppress is Sufficient to Establish a Corpus Delicti.
The evidence offered by the defendant in support of his allegation that certain promises of leniency were made to him by the Government consisted solely of the testimony of Mr. Izurieta. (N.T. 5/27/03, pp. 14-47; N.T. 5/28/03, pp. 2-23). Mr. Izurieta's testimony, however, demonstrates nothing more than his own personal belief, albeit unsupported and unfounded, as to how the Government was going to handle its prosecution of the defendant in this case. On the other hand, the overwhelming evidence contained in (1) Mr. Perricone's November 5, 2001 letter to Mr. Izurieta regarding the defendant's impending grand jury testimony; (2) Mr. Izurieta's written response to Mr. Perricone's November 5, 2001 letter; (3) Mr. Perricone's September 9, 2001 letter to Mr. Izurieta regarding the defendant's cooperation in an "off the record" proffer, which was signed by both, the defendant and Mr. Izurieta on September 11, 2001 and returned to Mr. Perricone; and (4) defendant's testimony before the grand jury on November 15, 2001, make it abundantly clear that no promises were made to the defendant in order to induce or in exchange for his testimony before the grand jury. (Gov't Exs. 2, 3, 5 and 9).
1. The court concludes that the proffer made by Mr. Perricone at the hearing on defendant's motion to suppress, as described in Part II. C. above, would constitute, if admitted at trial, sufficient evidence of acorpus delicti. Therefore, the admissions and inculpatory statements made by defendant at the FBI office in Puerto Rico and during his testimony before the grand jury are, provisionally, admissible at trial.
See supra note. 1.
As indicated in footnote 1, the corpus delicti rule requires that the Government provide proof of a corpus delicti in order to permit the introduction into evidence of an inculpatory statement by the defendant. See Harris, 938 F.2d at 408-10. Acorpus delicti is defined as "the body or substance of the crime charged" and has two components: "(Dan unlawful injury, and (2) an individuals unlawful conduct as the scope of that injury." Id. at 408. "To establish a corpus delicti, the Government need only prove that a crime [as opposed to mere innocent or accidental conduct] has been committed." Id. The Government need not, however, identify the defendant as the perpetrator of the crime committed. Id. Proof of corpus delicti may be based on either direct or circumstantial evidence. Id.
Although historically, the corpus delicti doctrine required that "in order to convict a defendant of a crime based upon an extrajudicial confession or admission, the defendant's statement must be corroborated by some evidence of corpus delicti." id. at 409, in Harris, the Third Circuit adopted the "trustworthiness" doctrine, which "emphasizes the reliability of defendant's confession over the independent evidence of thecorpus delicti." Id. Accordingly, corpus delicti, as modified by the trustworthiness doctrine, requires only that confessions and admissions be corroborated by "substantial independent evidence which would tend to establish the trustworthiness of the statement." Id. at 410. Thus, the corroborative evidence offered by the Government is deemed sufficient to satisfy the corpus delicti doctrine where such evidence "supports the essential facts admitted [in defendant's statements] sufficiently to justify a jury inference of [the statements'] truth." Id.
The essential fact admitted by the defendant is the fact that, in exchange for payment, he shot and killed Hernadez. (Gov't Ex. 9, pp. 18-21). If offered at trial, the evidence contained in Mr. Perricone's proffer to the court at the hearing on defendant's motion to suppress would clearly constitute evidence of a corpus delicti, as well as substantial corroborative evidence of the defendant's admissions and would justify an inference of the statements' truth.
IV. CONCLUSION
Based on the foregoing findings of fact and conclusions of law, the court finds: (1) that the defendant's blood samples, buccal cavity swabs, fingerprints and palm prints were seized by the agents pursuant to a valid and properly executed search warrant; (2) that the admissions made by the defendant during his discussion with Agent Metz at the FBI office in Puerto Rico were not made in violation of the defendant's rights underMiranda; (3) that no promises were made to the defendant by the Government in order to induce the defendant to testify before the grand jury and that, therefore, the defendant's testimony before the grand jury on November 15, 2001 was voluntary; and (4) the Government has proffered sufficient evidence of a corpus delicti to corroborate defendant's admissions. Thus, the court concludes that the defendant's blood samples, buccal cavity swabs, fingerprints and palm prints, as well as the statements made by the defendant at the FBI office in Puerto Rico and during his t estimony before the grand jury, are admissible at trial and that, therefore, the defendant's motion to suppress should be denied.
An appropriate order follows.