JOSEPH F. BIANCO, District Judge.
On July 3, 2012, a grand jury returned an indictment charging Eric Jacobson ("Jacobson" or "defendant") with one count of conspiracy to distribute a controlled substance (oxycodone) in violation of 21 U.S.C. § 846, and five counts of distribution of a controlled substance (oxycodone) in violation of 21 U.S.C. § 841(a)(1). More recently, on February 12, 2014, a grand jury returned a superseding indictment charging defendant with one count of conspiracy to distribute a controlled substance and 261 counts of distribution of a controlled substance.
On December 9, 2013, defendant moved to suppress evidence seized from his medical office on December 1, 2011 and June 5, 2012, arguing that the warrants authorizing the seizures violated the particularity requirement of the Fourth Amendment, and that the search warrants were not promptly returned to the Court, in violation of Federal Rule of Criminal Procedure 41. Defendant also moved to suppress incriminating statements he made to a federal agent while in custody on June 22, 2012. The government opposed the motion to suppress defendant's statements on January 16, 2014, and defendant replied on January 30, 2014. The government opposed the motion to suppress evidence on January 30, 2014, and defendant replied on February 10, 2014. The Court conducted an evidentiary hearing on defendant's motion to suppress his statements on February 28, 2014.
For the reasons that follow, the motions to suppress are denied. First, the Court concludes that the two warrants authorizing the seizure of evidence from defendant's office were sufficiently particular because they adequately (1) identified the specific offenses for which law enforcement established probable cause, (2) described the place to be searched, and (3) specified the items to be seized by their relation to designated crimes. Contrary to defendant's position, neither warrant contained an impermissible catch-all provision authorizing the search and seizure of electronic data without limitation. Moreover, under the circumstances of this case, both warrants were sufficiently particular even though they did not contain either a temporal limitation on the items to be seized or a specific list of patient files to be seized. In addition, even assuming arguendo that the warrants are invalid, the evidence seized pursuant to those warrants would be admissible under the good faith exception to the exclusionary rule. Finally, concerning defendant's Rule 41 claim, defendant has demonstrated neither prejudice from the government's failure to promptly return the search warrants to the Court, nor evidence of the government's intentional and deliberate disregard of Rule 41. Thus, defendant is not entitled to suppression of the evidence seized pursuant to the two warrants. Second, with respect to the motion to suppress defendant's statements, defendant asserts that his incriminating statements were the product of custodial interrogation conducted in the absence of Miranda warnings. However, having conducted a full evidentiary hearing (including an evaluation of the demeanor of the testifying witness), the Court finds defendant's version of events in his affidavit to be wholly incredible and, instead, fully credits the version of events described by the law enforcement agent who testified at the hearing. Based on the evidence adduced at the suppression hearing, the Court finds that defendant volunteered the incriminating statements he seeks to suppress. In other words, the statements at issue were not the product of "interrogation," and, accordingly, the statements are admissible
Defendant contends that all evidence seized pursuant to two search warrants must be suppressed because those search warrants lacked the particularity required by the Fourth Amendment. In addition, defendant argues for suppression on the grounds that the agents who executed those warrants did not promptly return the warrants to the Court, in violation of Federal Rule of Criminal Procedure 41(f)(1)(D). For the following reasons, defendant's motion to suppress the evidence seized during the search is denied.
On November 30, 2011, Magistrate Judge Arlene R. Lindsay signed a warrant to search defendant's medical office at 277 Northern Boulevard, Suite 309, Great Neck, New York (the "2011 Warrant"). The government's application for a warrant was supported by the affidavit of Drug Enforcement Agency ("DEA") Special Agent Sabrina Conwell, although the 2011 Warrant itself did not incorporate the affidavit. The 2011 Warrant stated that defendant's medical office was believed to conceal the items enumerated in "Attachment A," which authorized the seizure of the following items:
(2011 Warrant, Attachment A ¶ 1.) Paragraph two of Attachment A states that "[a]gents searching for the items described above are authorized to search any computers or digital media at the SUBJECT OFFICE and to copy all data stored on such computer(s) or media in order to extract and examine the above-described information." (Id. ¶ 2.)
DEA and Internal Revenue Service ("IRS") agents executed the 2011 Warrant on December 1, 2011 at 11:30 a.m. (2011 Warrant Return.) Agents recovered patient folders, images of a four gigabyte thumb drive and two computers, a computer, and "misc[ellaneous] documents." (Id.) The agents left a copy of the warrant and an inventory of items seized with office staff at the reception desk. (Id.) They filed the search warrant return with the Court on December 2, 2013. (Id.)
Approximately six months later, on June 4, 2012, Magistrate Judge William D. Wall signed a second warrant to search defendant's medical office at 277 Northern Boulevard, Suite 309, Great Neck, New York (the "2012 Warrant"). The government's application for a warrant was supported by the affidavit of IRS Special Agent Gerard J. Ricciardi, although the 2012 Warrant itself did not incorporate the affidavit. The 2012 Warrant stated that defendant's medical office was believed to conceal the items enumerated in "Attachment A," which authorized the seizure of the following items:
(2012 Warrant, Attachment A ¶ 1.) Like the 2011 Warrant, Attachment A to the 2012 Warrant also states that "[a]gents searching for the items described above are authorized to search any computers or digital media at the SUBJECT OFFICE and to copy all data stored on such computer(s) or media in order to extract and examine the above-described information." (Id. ¶ 2.)
DEA and IRS agents executed the 2012 Warrant on June 5, 2012 at 3:00 p.m. (2012 Warrant Return.) Agents recovered two laptop computers; three tower computers; approximately all patient files in the reception area, exam rooms, and defendant's office; one briefcase containing patient information; patient ledger books; payment ledger books; blank prescription pads; and blank prescription sheets for a printer.
The Warrants Clause of the Fourth Amendment of the United States Constitution provides that "no Warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "The Fourth Amendment was a response to the English Crown's use of general warrants, which often allowed royal officials to search and seize whatever and whomever they pleased while investigating crimes or affronts to the Crown." Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2084, 179 L.Ed.2d 1149 (2011). "To achieve its goal, the Warrants Clause requires particularity and forbids overbreadth." United States v. Cioffi, 668 F.Supp.2d 385, 390 (E.D.N.Y. 2009). "`Particularity is the requirement that the warrant must clearly state what is sought. Breadth deals with the requirement that the scope of the warrant be limited to the probable cause on which the warrant is based.'" Id. (quoting United States v. Hill, 459 F.3d 966, 973 (9th Cir. 2006)); see, e.g., United States v. Hernandez, No. 09-CR-625 (HB), 2010 WL 26544, at *7 (S.D.N.Y. Jan. 6, 2010) ("Although somewhat similar in focus, [overbreadth and particularity] are two distinct legal issues: (1) whether the items listed as `to be seized' in the warrant were overbroad because they lacked probable cause and (2) whether the warrant was sufficiently particularized on its face to provide the necessary guidelines for the search by the executing officers.").
The Second Circuit recently identified "three components" to the particularity requirement. See United States v. Galpin, 720 F.3d 436, 445 (2d Cir.2013). "First, a warrant must identify the specific offense for which the police have established probable cause." Id.; see, e.g., United States v. George, 975 F.2d 72, 76 (2d Cir.1992) (warrant was insufficiently particular where it authorized officers to search for "any other evidence relating to the commission of a crime"). "Second, a warrant must describe the place to be searched." Galpin, 720 F.3d at 445-46. "Third, the warrant must specify the `items to be seized by their relation to designated crimes.'" Id. at 446 (quoting United States v. Williams, 592 F.3d 511, 519 (4th Cir.2010)); see, e.g., United States v. Buck, 813 F.2d 588, 590-92 (2d Cir.1987) (warrant was insufficiently particular where it authorized seizure of "any papers, things or property of any kind relating to previously described crime").
Ultimately, "[a] warrant is sufficiently particular if it `enable[s] the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize.'" Cioffi, 668 F.Supp.2d at 390 (quoting George, 975 F.2d at 75); see also United States v. Liu, 239 F.3d 138, 140 (2d Cir. 2000) ("A warrant must be `sufficiently specific to permit the rational exercise of judgment [by the executing officers] in selecting what items to seize.'" (quoting
Even if a warrant lacks particularity in violation of the Fourth Amendment, "[t]he fact that a Fourth Amendment violation occurred ... does not necessarily mean that the exclusionary rule applies." Herring v. United States, 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). In fact, the Supreme Court has explained that application of the exclusionary rule has always been its "last resort," not its "first impulse." Id. "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Id. at 144, 129 S.Ct. 695.
Under the good faith rule set forth in United States v. Leon, the exclusionary rule does not apply to "evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant." 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); see, e.g., Galpin, 720 F.3d at 452. "`The burden is on the government to demonstrate the objective reasonableness of the officers' good faith reliance' on an invalidated warrant." United States v. Clark, 638 F.3d 89, 100 (2d Cir.2011) (quoting George, 975 F.2d at 77). "In assessing whether it has carried that burden," courts must be "mindful that, in Leon, the Supreme Court strongly signaled that most searches conducted pursuant to a warrant would likely fall within its protection." Id.; see Leon, 468 U.S. at 922, 104 S.Ct. 3405 ("Searches pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search." (internal citations and quotation marks omitted)). Thus, "[m]ost searches will be upheld." United States v. Rickard, 534 Fed.Appx. 35, 37 (2d Cir. 2013). As the Second Circuit has explained:
Clark, 638 F.3d at 100 (quoting United States v. Moore, 968 F.2d 216, 222 (2d Cir.1992)); see Leon, 468 U.S. at 923, 104 S.Ct. 3405; Galpin, 720 F.3d at 452.
Federal Rule of Criminal Procedure 41 "governs the practice of issuing federal
Even where government officials violate the requirements of Rule 41, courts "must be `wary in extending the exclusionary rule in search and seizure cases to violations' of Rule 41 alone." United States v. Turner, 558 F.2d 46, 52 (2d Cir. 1977) (quoting United States v. Burke, 517 F.2d 377, 386 (2d Cir.1975)). Instead, the Second Circuit held in Burke that "violations of Rule 41 alone should not lead to exclusion unless (1) there was `prejudice' in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule." 517 F.2d at 386-87. "`Prejudice' in this context consists of being subjected to a search that `(1) might not have occurred or (2) would not have been so abrasive if the Rule had been followed.'" Turner, 558 F.2d at 52 (quoting Burke, 517 F.2d at 387); see also United States v. Pangburn, 983 F.2d 449, 455 (2d Cir.1993).
Because the 2011 and 2012 Warrants are nearly identical in all respects relevant to the instant motion, the Court considers them in tandem.
Defendant acknowledges that the 2011 and 2012 Warrants adequately identified specific offenses and described with particularity the place to be searched. However, he contends that the 2011 and 2012 Warrants lacked particularity because they included impermissibly broad catch-all paragraphs, they did not contain any temporal limitation, and they did not identify specific patient files to be seized. After considering these objections and examining the warrants under the foregoing legal standards, the Court concludes that the 2011 and 2012 Warrants complied with the Fourth Amendment's particularity requirement.
Most significantly, contrary to defendant's argument, the warrants at issue did not authorize "search teams to peruse `any computers' and to copy `all data' stored on them." (Def.'s Reply Mem. at 3 (quoting 2011 Warrant, Attachment A ¶ 2; 2012 Warrant, Attachment A ¶ 2); see also Def.'s Mem. at 3.) Defendant's selective quotation of Attachment A makes it appear
Moreover, paragraph one set forth sufficient limitations on the items to be seized. As noted, paragraph one authorized the seizure of "evidence, fruits and instrumentalities" of particular federal crimes,
Because the 2011 and 2012 Warrants referenced particular crimes and used illustrative lists as a means of limiting the items to be seized, they differ significantly from the warrant at issue in United States v. Zemlyansky, the principal decision upon which defendant relies. See 945 F.Supp.2d 438, 454 (S.D.N.Y.2013). In Zemlyansky, the court held that a warrant failed the particularity requirement where the warrant did not provide "any indication of the relevant criminal allegations" and allowed for the seizure of broad categories of materials
Instead, the 2011 and 2012 Warrants more closely resemble the warrants upheld in Hernandez and United States v. Levy. In Hernandez, the court concluded that a warrant was sufficiently particular because it "indicate[d] that only documents related to violations of various criminal fraud statutes related to identity, mail, and tax fraud" could be seized. 2010 WL 26544, at *10. Likewise, in Levy, the court held that a warrant authorizing the seizure of "[e]vidence, fruits, and instrumentalities of violations of Title 18, United States Code, Sections 1343 (Wire Fraud), 1349 (Conspiracy to Commit Wire Fraud), and 1956 and 1957 (Money Laundering)," followed by an illustrative list of items including business records, computers, and "electronic data storage devices," was sufficiently particular. No. S511-CR-62 (PAC), 2013 WL 664712, at *2-3 (S.D.N.Y. Feb. 25, 2013). Although both Hernandez and Levy noted that certain categories of items to be seized were "`somewhat vague,'" they determined that those categories were sufficiently particular "`given the complexity of [the alleged] scheme and the numerous documents involved.'" Id. at *9 (quoting Hernandez, 2010 WL 26544, at *10) (alteration in original).
Moreover, under the circumstances of this case, the Court does not find the lack of any temporal limitation in the 2011 and 2012 Warrants to be dispositive. Although a warrant's failure to include a temporal limitation on the things to be seized may, in certain circumstances, render a warrant insufficiently particular, there is no consensus in this Circuit "as to when one is required." Cohan, 628 F.Supp.2d at 366; see, e.g., United States v. Triumph Capital Grp., Inc., 211 F.R.D. 31, 58 (D.Conn.2002) ("A temporal limitation in a warrant is not an absolute necessity, but is only one indicia of particularity."). As the Hernandez decision noted, "[t]he complexity and duration of the alleged criminal activities render a time frame less significant than in a case that required a search for a small set of discrete items related to one or only a few dates." 2010 WL 26544, at *11. Here, as in Hernandez, the crimes under investigation were complex and concerned a long period of time, not simply one or two dates of criminal activity. Thus, in this case, the absence of a time frame did not render the otherwise particularized warrants unconstitutionally general. See id.
Finally, the 2011 and 2012 Warrants satisfied the particularity requirement even though they did not identify specific patient files to be seized. Although there is no controlling Second Circuit law on this issue, courts outside this Circuit have upheld the constitutionality of warrants that authorized the search of a medical office for all patient files, so long as the warrants were otherwise particular. See, e.g., United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir.1986) (holding that a warrant authorizing the search of a medical office for all patient files was sufficiently particular because "the officers were limited in their seizure to documents dealing with the distribution of controlled substances"); United States v. Lievertz, 247 F.Supp.2d 1052, 1062 (S.D.Ind.2002). But see United States v. Wright, No. 3:10-CR-161, 2012 WL 3778986, at *9 (E.D.Tenn. June 19, 2012) ("In order to satisfy the Fourth Amendment's particularity requirement with regard to the seizure of medical records, the government must identify by patient name, which records are sought." (citing United States v. Lazar, 604 F.3d 230, 238 (6th Cir.2010))), report & recommendation adopted, 2012 WL 3778982 (E.D.Tenn. Aug. 30, 2012).
For the foregoing reasons, the Court concludes that the 2011 and 2012 Warrants satisfy the Fourth Amendment's particularity
Even assuming arguendo that the 2011 and 2012 Warrants were not sufficiently particular, the Court concludes that the good faith exception to the exclusionary rule applies in this case. As noted supra, "[s]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search." Leon, 468 U.S. at 922, 104 S.Ct. 3405. Under this standard, "[m]ost searches will be upheld." Rickard, 534 Fed.Appx. at 37. Nonetheless, defendant contends that the good faith exception does not apply because the 2011 and 2012 Warrants were "so facially deficient that reliance upon [them was] unreasonable." Galpin, 720 F.3d at 452; Clark, 638 F.3d at 100; Moore, 968 F.2d at 222; see Leon, 468 U.S. at 923, 104 S.Ct. 3405.
This Court disagrees. Defendant's argument is premised on the assertion that paragraph two of Attachment A was an impermissible catch-all paragraph. See, e.g., Zemlyansky, 945 F.Supp.2d at 472 (holding that good faith rule did not apply because "[i]t was clearly established that a warrant which fails to specify the crimes for which the search was being undertaken lacks particularity," and "that a warrant with unduly broad, ambiguous, or catch-all categories lacks particularity."). However, the Court has already explained how paragraph one of Attachment A sufficiently limited paragraph two's scope. Moreover, as to the particularity of paragraph one, a search warrant "cannot be said to be `so facially deficient' as to preclude reasonable reliance where it expressly provided that the officers were authorized to seize" only evidence, fruits, and instrumentalities of specifically enumerated offenses. Levy, 2013 WL 664712, at *10. Accordingly, even if paragraph one were insufficiently particular, it was not so facially deficient as to preclude the application of the good faith rule.
Nor does the absence of any time limitation in the warrants render the evidence seized pursuant to those warrants inadmissible. Indeed, "the fact that the precise relevance of the absence of an express time frame on the particularity and breadth of [a] warrant has yet to be settled in this Circuit further supports the idea that agents reasonably relied on the magistrate's authorization and should be protected by the `good faith' exception." Hernandez, 2010 WL 26544, at *12. Likewise, the absence of any controlling law in this Circuit — and a split of authority outside this Circuit — on the requirement to identify specific patient files in a warrant means that the good faith exception applies even if this Court were to determine that the warrants should have identified specific patient files. Compare Hayes, 794 F.2d at 1355 (holding that a warrant authorizing the search of a medical office for all patient files was sufficiently particular); Lievertz, 247 F.Supp.2d at 1062 (same);
In sum, the Court concludes that the 2011 and 2012 Warrants were not so facially deficient that reliance upon them was unreasonable. The good faith exception thus applies even assuming arguendo that the 2011 and 2012 Warrants violated the Fourth Amendment.
Finally, defendant argues for suppression of evidence on the grounds that the agents who executed the 2011 and 2012 Warrants did not return the warrants to the Court until December 2, 2013. As defendant notes, agents filed the return for the 2011 Warrant approximately two years after executing it, and they filed the return for the 2012 Warrant approximately one and one-half years after executing it. The government does not argue that the warrants were "promptly return[ed]," as Rule 41(f)(1)(D) requires. Instead, the government contends only that the failure to "promptly return" the warrants does not justify suppression in this case.
The Court agrees with the government. Defendant has offered no evidence that he suffered prejudice from the violation of Rule 41, or that agents violated Rule 41 intentionally and with deliberate disregard. See, e.g., United States v. Huggins, No. 13-CR-00155 (SHS)(SN), 2013 WL 1728269, at *5 (S.D.N.Y. Mar. 22, 2013) (holding that violation of Rule 41 did not warrant suppression where "Oraco has offered no evidence showing it was prejudiced by the Rule's violation or that there was any intentional or deliberate disregard of the Rule's provisions."), report & recommendation adopted, 2013 WL 1736466 (S.D.N.Y. Apr. 11, 2013). With respect to prejudice, "[i]t cannot be seriously maintained that [the searches] would not have occurred if Rule 41 had not been violated," or that the searches would have been less abrasive if the Rule had been followed. Turner, 558 F.2d at 52.
In sum, the Court concludes that there is no basis to suppress the evidence recovered pursuant to the 2011 and 2012 Warrants. Accordingly, defendant's motion to suppress that evidence is denied.
Defendant argues that statements he made to law enforcement agents on June 22, 2012 should be suppressed because the statements were made during custodial interrogation, and law enforcement did not provide defendant with Miranda warnings. Because the Court finds
IRS Special Agent Gerard J. Ricciardi ("SA Ricciardi") testified at the suppression hearing. The government also introduced in evidence eight exhibits, including excerpts from two recorded phone calls between defendant and his wife. After evaluating the credibility of SA Ricciardi and the other evidence offered at the evidentiary hearing, as well as defendant's affidavit dated December 6, 2013, the Court fully credits the testimony of SA Ricciardi, and discredits defendant's contrary assertions about what occurred on June 22, 2012 in his affidavit. See, e.g., United States v. Noble, No. 07-CR284 (RJS), 2008 WL 1990707, at *8 (S.D.N.Y. May 7, 2008). Specifically, the Court makes the following findings of fact.
On June 4, 2012, a criminal complaint was filed in this Court, charging defendant with conspiracy to distribute a Schedule II controlled substance (oxycodone) in violation of 21 U.S.C. § 846, and Magistrate Judge Wall issued a warrant for defendant's arrest. (See ECF No. 2.) The next day, federal agents, including SA Ricciardi, arrested defendant at his medical office. (Tr. 13-16; Ex. 2, Report of Investigation, June 7, 2012, at 1.
The following day, defendant, represented by attorney John Martin ("Martin"), appeared before Magistrate Judge E. Thomas Boyle for arraignment and a bail hearing. (Tr. 17; see Ex. 4, Arraignment Tr., June 6, 2012 ("Arraignment Tr.").) During the hearing, Magistrate Judge Boyle informed defendant of his right to remain silent. (Arraignment Tr. 3.) At the conclusion of the hearing, Magistrate Judge Boyle entered an order of detention. (Arraignment Tr. 22; see Tr. 17.)
Thereafter, the government and Martin scheduled a reverse proffer meeting for June 22, 2012. (Tr. 18.) The government planned to discuss with defendant the evidence against defendant, in the hopes that such a meeting would "move the case along," and possibly lead to "an early disposition of the case," i.e., a guilty plea. (Tr. 19, 50-51.) June 22, 2012 was a Friday, and the United States Marshals Service had a policy of refusing to produce prisoners for meetings on Fridays. (Tr. 18-19.) Thus, the government and Martin agreed that the United States Attorney's Office would obtain a court order to remove defendant from the Nassau County jail and to bring him to the United States Attorney's Office at the United States Courthouse in Central Islip, New York for the reverse proffer meeting. (Tr. 19.) The government obtained the "take-out order" on June 21, 2012. (Id.; see Ex. 5, Order, June 21, 2012.)
On June 22, 2012, SA Ricciardi and SA Robert Garcia ("SA Garcia") drove to the Nassau County jail at approximately 11
As SA Garcia was pulling out of the jail's parking lot, defendant told the agents that he "wanted to cooperate" and "that he was willing to testify against all of the patients that he had." (Id.) SA Ricciardi had not said anything to defendant before defendant made these statements. (Id.) In response to defendant's stated willingness to cooperate, SA Ricciardi said: "That's great. That's good. What we'll do is, we're going to go to the courthouse. John Martin will be there. Lara Gatz will be there. And we'll discuss it there. But why don't we just wait until we get to the courthouse." (Tr. 26.)
During the drive to the courthouse, defendant commented on the weather and said that it was nice to be outside. (Id.) SA Ricciardi agreed with defendant that it was a nice day, and either SA Ricciardi or SA Garcia opened the car window to let the air blow into the car. (Tr. 26-27.) Defendant proceeded to talk about being in jail, and how he felt that the guards were not treating him like a human being. (Tr. 28.) At that point, defendant broke down and began to beg for SA Ricciardi's forgiveness. (Id.) Specifically, defendant attempted to kneel and put his hands together, as if praying, and said: "I'm sorry. Please forgive me for what I did." (Tr. 28-29.) SA Ricciardi told defendant to sit up and not to beg. (Tr. 29.)
Defendant calmed himself and, without any statement or question from SA Ricciardi, started talking about his girlfriend, Nicole Peluso ("Peluso"). (Tr. 29-30.) Specifically, defendant stated, "I took care of Nicole," and added that he prescribed pills for her, helped pay her rent, and helped pay her cell phone bill. (Tr. 30.) Defendant also told SA Ricciardi that he had sex with Peluso because he had not had sex with his wife in approximately three years, that he was "sorry for doing that," and that he knew it was wrong. (Tr. 30-31.) Defendant also revealed that Peluso had been abused by her father and raped by her uncle, and explained that he "took care of her for the pain that she was in." (Id.) In addition, defendant volunteered that he was at Peluso's house the night before he was arrested. (Tr. 31.) SA Ricciardi had previously interviewed Peluso, and he was aware of everything that defendant was revealing. (Tr. 31-32.) During the ride from the jail to the courthouse, SA Ricciardi never asked about Peluso. (Tr. 32.) However, in an effort to calm defendant, SA Ricciardi did state the following: "I can see you having, you know, sex with Nicole if you haven't been with your wife for three years." (Tr. 31.)
Upon their arrival at the courthouse, SA Ricciardi and SA Garcia escorted defendant to the United States Attorney's Office, where defendant was given the opportunity to speak privately with Martin and another lawyer, whose name SA Ricciardi does not remember, in a meeting room.
After the government presented its evidence to defendant, SA Ricciardi, SA Garcia, and AUSA Gatz left the room, so that defendant could meet privately with his attorneys. (Tr. 39.) After ten to fifteen minutes, Martin emerged from the meeting room and said: "He wants to fold the tent." (Id.) Then SA Ricciardi, SA Garcia, and AUSA Gatz went back into the meeting room to discuss a possible plea agreement with defendant and his attorneys. (Tr. 40-41.) Specifically, the government and defendant attempted to agree on a plea agreement that included a certain number of patients and a certain number of pills prescribed. (Id.) Defendant nodded his head during these conversations. (Tr. 41.) Everyone in the room agreed to move quickly, and the government told defendant that he could help the government with other investigations by giving the government information about some of his patients. (Tr. 42-43.)
After the meeting ended, SA Ricciardi and SA Garcia brought defendant to the first floor of the courthouse and prepared to drive him back to the jail. (Tr. 43.) Defendant appeared very relaxed, calm, and relieved, as if a weight had been lifted off his shoulders. (Id.) On the way to the jail, as they were driving onto the parkway, defendant turned to SA Ricciardi and stated remorsefully: "Hah! I fucked up, Jerry. I did it all for the money. You know, I used to charge $40 in the beginning, and they kept coming and coming, and calling and calling, and I had to charge more and more and more." (Tr. 44.) Defendant added: "I made a lot of money." (Id.) SA Ricciardi said nothing to defendant before defendant made these statements. (Id.) Later on during the drive, defendant started talking about his children. (Id.) SA Ricciardi responded that he had children, as well, and that their children were the same age. (Id.) However, SA Ricciardi did not talk at all about defendant's case.
The Fifth Amendment of the United States Constitution provides, in relevant part, that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Recognizing that a custodial interrogation creates "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," the Supreme Court held in Miranda v. Arizona that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. 436, 444, 467, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). "In particular, prior to the initiation of questioning, [law enforcement] must fully apprise the suspect of the State's intention to use his statements to secure a conviction, and must inform him of his rights to remain silent and to `have counsel present ... if [he] so desires.'" Moran v. Burbine, 475 U.S. 412, 420, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (quoting Miranda, 384 U.S. at 468-70, 86 S.Ct. 1602) (alteration in original). "Miranda's warning requirements, however, apply only to `custodial interrogation.'" Georgison v. Donelli, 588 F.3d 145, 155 (2d Cir.2009). "This determination has two parts: (a) there must be an interrogation of the defendant, and (b) it must be while she is in `custody.'" United States v. FNU LNU, 653 F.3d 144, 148 (2d Cir. 2011).
The Supreme Court defined interrogation for purposes of Miranda in Rhode Island v. Innis. See 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In Innis, the Supreme Court held that
Id. at 300-01, 100 S.Ct. 1682. An "incriminating response" is "any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial." Id. at 301 n. 5, 100 S.Ct. 1682. Accordingly, "[w]here statements are spontaneous — that is, where they are not the result of questioning or its functional equivalent — Miranda warnings are not necessary and the statements are not protected." Noble, 2008 WL 1990707, at *7; see, e.g., Miranda, 384 U.S. at 478, 86 S.Ct. 1602 ("Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today."); Wolfrath v. Lavallee, 576 F.2d 965, 973 n. 6 (2d Cir.1978) ("[S]ince the statement which was litigated below was a gratuitously volunteered statement, Miranda itself is inapplicable, for spontaneous statements which are not the result of `official interrogation' have never been subject to its strictures.").
Although it is undisputed that defendant was in custody when he made the statements at issue, the Court determines that those statements were not the product of interrogation. As is evident from the Court's findings of fact, defendant volunteered these statements absent any question
In sum, the Court concludes that defendant made the statements at issue spontaneously. Because neither SA Ricciardi nor SA Garcia said anything that was reasonably likely to elicit an incriminating
For the reasons set forth herein, the defendant's motions to suppress are denied in their entirety.
SO ORDERED.
