The opinion of the court was delivered by: LOWE
MEMORANDUM OPINION AND ORDER
An indictment has been returned against defendant Joseph Mannino ("Mannino") charging him with the crimes of conspiracy (18 U.S.C. § 371); false statements (18 U.S.C. §§ 1014 and 2); mail fraud (18 U.S.C. §§ 1341 and 2); and transportation of stolen property (18 U.S.C. §§ 2314 and 2). The indictment alleges that defendant, an officer of Compratt Construction Corporation ("Compratt") and Luman Equipment Corporation ("Luman"), acting with one Lucera and others, caused the corporations to issue false vendor invoices which were presented to various banks in order to obtain lease financing.
Defendant has moved this Court to suppress: (1) statements he is alleged to have made to FBI agents on or about November 1, 1978; (2) documents he turned over to the government; and (3) statements he is alleged to have made to an Assistant United States Attorney on October 30, 1979. The government opposes the motion.
For three years the government had been investigating OEM Capital Corp. ("OEM"), a corporation engaged in arranging lease financing for companies that wanted to finance the purchase of equipment.
The indictment alleges that Compratt and Luman provided false vendor invoices to OEM which were used in support of applications to various banks for lease financing. In late October, 1978, FBI Agent Donald Johnson called Mannino and Lucera to arrange an appointment to discuss OEM and Herbert Wolf.
Agent Johnson, his partner, FBI Agent Mitchell, Mannino and Lucera met on November 1, 1978 at the Compratt offices in Connecticut.
Agent Johnson testified that after he introduced himself and his partner, Lucera asked whether he and Mannino were targets of the investigation. Johnson said "No." Lucera then asked if they were in any trouble. Johnson replied: "You tell me." Johnson asked for and Mannino gave him blank stationery of Compratt and Luman.
Mannino said he had contracted for a construction job for a company, Hattie Carnegie, and that Herbert Wolf had assisted him in seeking financing. Mannino made other incriminating statements.
Mannino testified that after Johnson told him that the agents were investigating OEM, he asked how he could help them. Johnson said that he was looking for Mannino's cooperation. When asked by Mannino if he and Lucera were involved, Johnson replied that they were not targets and were not being investigated, nor were they going to be indicted. The conversation with the agents continued for two or three hours.
Defendant Mannino argues that the statements made and documents turned over to the government were the product of a promise by Agent Johnson of immunity. The government contends that, even if Mannino's version of the events is accepted by the Court, Agent Johnson's conduct does not amount to a grant of immunity.
The Fifth Amendment to the United States Constitution prohibits the use as evidence against a person in a subsequent criminal proceeding statements made or evidence disclosed by the defendant as a result of compulsion. The term compulsion, in Fifth Amendment analysis, has been held to include evidence induced under a governmental promise of immunity. Shotwell Manufacturing Co. v. United States, 371 U.S. 341, 347, 9 L. Ed. 2d 357, 83 S. Ct. 448 (1963). The inquiry in this case is whether Agent Johnson's statements amounted to a promise of immunity.
Mannino cites United States v. Denno, 259 F. Supp. 784 (S.D.N.Y. 1966) in support of his immunity claim. However, Denno is clearly distinguishable. Judge Weinfeld in deciding Denno found that detective Pickett told petitioner Caserino that the prosecution wanted and needed his help, and that it:
'wanted his statement only as a witness' . . . that 'no charges would be brought against him,' and that 'you will never go to trial in this case'.
Id. at 790. Judge Weinfeld further found that those promises were reasonably understood by petitioner as an assurance in exchange for his statements.
The record in this case does not support such a finding. The credible evidence, on the hearing, supports the conclusion that Mannino was told that he was not a target of the investigation, and that the agent wanted his help. The Court further finds that Agent Johnson did not tell Mannino he would not be indicted and did not use trickery or deception to secure Mannino's cooperation. On November 1, 1978, the investigation of the lease financing fraud was ongoing and the focus of the investigation was OEM and its officers. There was no misstatement or concealment of fact as found in United States, ex rel. Everett v. Murphy, 329 F.2d 68, 70 (2d Cir.), cert. denied, 377 U.S. 967, 84 S. Ct. 1648, 12 L. Ed. 2d 737 (1964). Nor had custody attached such as to trigger advice of "Rights," Miranda v. Arizona, 384 U.S. 436, 444, 478, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
For the above reasons the defendant's motion to suppress statements made on November 1, 1978 and documents given to the government at that time and ...