agents proceeded to question DiGregorio about stolen bearer bonds.
Digregorio denied any knowledge of or involvement with any such bonds. The agents repeated their advise about cooperation, informing DiGregorio that if he "helped the government against Mr. Segnit," nothing would happen to him.
Among the personal possessions taken from DiGregorio upon his arrest was valium, which had been prescribed for him because he suffers from claustrophobia. Although he informed the agents of his condition, they refused him access to his medication until he cooperated.
After some hours of interrogation by several agents, DiGregorio agreed to cooperate. He continued to deny knowledge of any stolen bonds, but agreed to place a recorded telephone call to Segnit and to arrange a meeting with Segnit regarding the stolen bonds.
As a result of the telephone calls, Segnit agreed to meet DiGregorio in Queens that evening. Several agents transported DiGregorio to the appointed location, but Segnit failed to appear. DiGregorio again contacted Segnit by telephone. Segnit agreed to meet DiGregorio at a diner in Peekskill, New York.
DiGregorio then drove with the agents to Peekskill. At approximately 8:00 p.m., Segnit pulled into the diner in a car driven by his son, Robert. According to Segnit, the car was stopped by twelve men, with guns trained, who identified themselves as agents of the FBI. The Government maintains that Agent McCormick read Segnit his Miranda rights, although Segnit cannot recall whether such rights indeed were administered.
DiGregorio, Segnit and Robert were then brought to a nearby New York State Police barracks. Inside the barracks, Agents Willman, Ward and McCormick began interviewing Segnit. Segnit claims that he asked to be allowed to call his father, who would make arrangements for getting a lawyer.
According to Segnit, the agents refused his request and informed him that if he cooperated he would not need a lawyer. He claims that he was told that if he failed to cooperate, he would be charged and that his son would be charged as an accessory.
The agents informed Segnit that "he faced federal charges based on his participation in a scheme to transfer stolen U.S. Treasury Bonds" and "explained to him that any cooperation would be brought to the attention of the United States Attorneys Office." Government Memo. at 6.
According to Segnit, the agents represented that they would release him and his son if he cooperated and acted as a confidential informant for them, that he would not need an attorney and that he "could remain out of trouble" by cooperating with them.
Segnit repeatedly denied knowing that a certain bond was stolen. During this time, DiGregorio was also being questioned. After being informed that they would be released if they signed statements prepared by the agents, DiGregorio and Segnit signed the statements at approximately 3:00 a.m. The Defendants also orally agreed to waive arraignment.
The Defendants were taken from the police barracks to the MCC in New York City, where they arrived at approximately 4:00 a.m. According to Segnit, the agents advised him that he would be released if he agreed to be wired the next day and engage in a conversation with Frank Bitetto ("Bitetto"), later named as a co-conspirator. Both DiGregorio and Segnit attest that when they inquired as to obtaining an attorney, the agents refused their requests and assured them that they did not need attorneys because nothing would happen to them if they continued cooperating.
After spending the rest of the night in the MCC, on the morning of February 28, 1990, DiGregorio and Segnit were taken to the Secret Service office at the World Trade Center. Several agents spoke briefly with Segnit. Pursuant to the agents' requests, Segnit placed telephone calls to an Anthony Dagnone ("Dagnone") and Bitetto and agreed to meet Bitetto later that afternoon. Segnit claims that, during this time, the agents informed him that he would be expected to plead to a felony, but that he would be released without jail time on the condition that he continue to assist in their operations.
Segnit was transported by federal agents to meet Bitetto. Following the unsuccessful meeting, the agents returned Segnit to the World Trade Center. Segnit was asked to sign another statement as well as a written "waiver of arraignment."
He was again advised that he did not need an attorney. Segnit signed these documents.
After agreeing to maintain daily contact with the agents, which he was informed was a condition of his release, Segnit was released at approximately 11:30 p.m. on February 28, 1991. According to Segnit, another condition of his continued release was that he not contact an attorney or talk to anyone about his role in the investigation.
Meanwhile, during the afternoon of February 28, 1991, DiGregorio was transported to White Plains to meet with a Ricky Simpson. The meeting was aborted, and DiGregorio was returned to the World Trade Center where he was told that he would be released if he signed a written "waiver of arraignment" and another statement prepared by the agents. He signed these documents and was released at 8:30 p.m. on February 28, 1991.
Over the next several months, both Defendants stayed in contact with the agents on a daily basis, and on May 23, 1991, Segnit met with several agents at the World Trade Center, at which time he signed another statement. In mid-July, 1991, Assistant United States Attorney Steven Witzel provided counsel for the Defendants with proposed plea agreements. On or about July 23, 1991, the Defendants appeared before the Honorable John F. Keenan and informed him that they would not enter into these agreements, nor would they waive indictment. On or about October 8, 1991, the grand jury returned a six-count indictment against them.
The Defendants filed the present motion on January 27, 1992. Due to a series of postponements at the request of theparties, oral argument was heard on April 20, 1992. The motion was considered fully submitted as of April 29, 1992.
The Defendants assert four alternative grounds for dismissing the Indictment. First, they contend that dismissal of the Indictment is warranted because the Government violated Fed. R. Crim. P. 5(a) by failing to present them before a magistrate following their arrests. Second, they urge dismissal of the Indictment on the grounds that their due process rights under the Fifth Amendment were violated by the "outrageous conduct" of the Government's agents. Third, they argue that the delay of over seven months between their arrests and the filing of the Indictment violates the Speedy Trial Act, 18 U.S.C. § 3161(b), thus mandating dismissal of the Indictment pursuant to 18 U.S.C. § 3162(a)(1). Finally, they maintain that the Indictment should be dismissed on the grounds of prosecutorial misconduct.
As discussed below, the facts as described by the Defendants do not support dismissal of the Indictment on the first two asserted grounds. However, because these facts, if true, may support dismissal of the Indictment against the Defendants for violation of the Speedy Trial Act and for prosecutorial misconduct, an evidentiary hearing shall be held as to facts relevant to these claims within thirty days of the filing of this opinion.
Fed. R. Crim. P. 5(a)
Rule 5(a) of the Federal Rules of Criminal Procedure provides that:
An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take then arrested person without unnecessary delay before the nearest available federal magistrate or, in the event that a federal magistrate is not reasonably available, before a state or local judicial officer authorized by 18 U.S.C. § 3041.
It is undisputed that the Defendants were not brought before a judicial officer of any kind prior to their appearance before Judge Keenan in July 1991, approximately five months after the arrests. In fact, the Government concedes that it violated Rule 5(a). The Government properly maintains, however, that the appropriate remedy for a violation of Rule 5(a) is suppression of any prejudicial statements made during the period of prearraignment delay. See United States v. Perez, 733 F.2d 1026, 1029, 1035 (2d Cir. 1984) (Rule 5(a) violated where there has been unnecessary and unreasonable delay in excess of six hours); see also Mallory v. United States, 354 U.S. 449, 452-53, 1 L. Ed. 2d 1479, 77 S. Ct. 1356 (1957); McNabb v. United States, 318 U.S. 332, 343-44, 87 L. Ed. 819, 63 S. Ct. 608 (1943); United States v. Rubio, 709 F.2d 146, 153-54 (2d Cir. 1983); United States v. Egan, 501 F. Supp. 1252, 1263 (S.D.N.Y. 1980) (Sweet, J.) (imposing sanction of suppression for unnecessary delay in appearance before magistrate; dismissal of indictment not warranted unless delay rises to level of outrageous conduct that shocks the conscience).
In view of this overwhelming authority, the motion to dismiss the Indictment on the grounds of the Rule 5(a) violation is denied. The Government has represented that it will not seek to use any statements made by the Defendants subsequent to their arrests, thus obviating the need to order any evidence suppressed.
Outrageous Government Conduct
The Defendants also argue that the Indictment should be dismissed because the Government's "outrageous conduct" violated their due process rights under the Fifth Amendment. The Supreme Court validated the existence of such a defense to criminal prosecution in United States v. Russell, 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973), writing that "we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." Id. at 431-32. To warrant dismissal of an indictment, the outrageousness of such conduct must rise to the level of "violating that 'fundamental fairness' shocking to the universal sense of justice, mandated by the Due Process Clause of the Fifth Amendment." Id. at 432 (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 4 L. Ed. 2d 268, 80 S. Ct. 297 (1960)); see also United States v. Chin, 934 F.2d 393, 398 (2d Cir. 1991) (right to due process violated where "the governmental conduct, standing alone, is so offensive that it shocks the conscience" (quoting Rochin v. California, 342 U.S. 165, 172, 96 L. Ed. 183, 72 S. Ct. 205 (1952)).
Outrageousness in the constitutional sense is not established merely by showing obnoxious police behavior or even flagrant misconduct. United States v. Kelly, 707 F.2d 1460, 1467 (D.C. Cir.) (Opinion of Ginsburg, J.), cert. denied, 464 U.S. 908, 78 L. Ed. 2d 247, 104 S. Ct. 264 (1983). Rather, a defendant's right to due process "is not transgressed absent 'coercion, violence or brutality to the person.'" Id. (quoting Irvine v. California, 347 U.S. 128, 132-33, 98 L. Ed. 561, 74 S. Ct. 381 (1954)). In the context of the extreme and overwhelming coercion that may be found to violate due process, "there is no meaningful distinction between physical and psychological harm inflicted upon the defendant." United States v. Cuervelo, 949 F.2d 559, 565 (2d Cir. 1991); see Rochin v. California, 342 U.S. 165, 96 L. Ed. 183, 72 S. Ct. 205 (1952) (physical coercion); Watts v. Indiana, 338 U.S. 49, 52-53, 93 L. Ed. 1801, 69 S. Ct. 1347 (1949) (psychological coercion).
The facts described by DiGregorio and Segnit suggest that the federal agents coerced them to sign certain statements and to cooperate in the ongoing investigation by threats of further detention, immediate prosecution and prosecution of Segnit's son. If the Defendants are to be believed, the agents affected this coercion primarily by keeping DiGregorio and Segnit in ignorance their rights by (1) failing to present them before a judicial officer for five months, (2) denying their requests to obtain counsel, and (3) inhibiting them from obtaining counsel after their release lest they lose their "immunity." Thus, the kernel of Defendants' claim of outrageousness is a claim that they were denied their right to counsel, guaranteed by the Fifth and Sixth Amendments.
There is no doubt that the agents' behavior, as depicted by the Defendants, was despicable.
It simply will not do to have federal agents purposefully perverting the constitutionally protected right to counsel to further their investigative efforts. Nevertheless, even assuming that this conduct meets Russell 's test of outrageousness, dismissal of the Indictment is not warranted on this basis because the Defendants have failed to show that this behavior resulted in any prejudice to their defense or legal representation. The appropriate remedy is suppression of evidence obtained as a result of the violation, not dismissal of the Indictment. See, e.g., United States v. Morrison, 449 U.S. 361, 66 L. Ed. 2d 564, 101 S. Ct. 665 (1981).
In Morrison, the defendant had moved to dismiss the indictment against her on the ground that federal agents had violated her right to counsel. The motion was based solely on the egregiousness of the agents' behavior and not upon any allegation that the claimed violation had prejudiced the quality or effectiveness of her legal representation or that the behavior of the agents had induced her to plead guilty, had resulted in the prosecution having a stronger case against her, or had any other adverse impact on her legal position. Id. at 363.
Reversing the Court of Appeals' dismissal of the indictment, the Supreme Court stated that, absent a showing of prejudice to the ability of counsel to provide adequate assistance, a Sixth Amendment violation "provides no justification for interfering with the criminal proceedings against [the defendant] much less [dismissal of the indictment]". Id. at 366-67. While recognizing the "fundamental importance of the right to counsel in criminal cases," the court wrote that:
when before trial but after the institution of adversary proceedings, the prosecution has improperly obtained incriminating information from the defendant in the absence of his counsel, the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence or to order anew trial if the evidence has been wrongfully admitted and the defendant convicted.
Id. at 365. Continuing, the Court held that:
the premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel's representation or has produced some other prejudice to the defense. Absent such impact on the criminal proceeding, however, there is no basis for imposing a remedy in that proceeding, which can go forward with full recognition of the defendant's right to counsel and to a fair trial. More particularly, absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.