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UNITED STATES v. DIGREGORIO

May 28, 1992

UNITED STATES OF AMERICA,
v.
ARNOLD DiGREGORIO and GREGORY SEGNIT, Defendants.



The opinion of the court was delivered by: ROBERT W. SHEET

 Sweet, D. J.

 Defendants Arnold DiGregorio ("DiGregorio") and Gregory Segnit ("Segnit") (together, the "Defendants") have moved for an order pursuant to the Fourth, Fifth and Sixth Amendments, 18 U.S.C. §§ 3161 and 3162 and Fed. R. Cr. P. 5(a) ("Rule 5(a)") dismissing the indictment against them with prejudice. *fn1" For the following reasons, the motion is denied with respect to the Rule 5(a) and constitutional claims. Resolution of those portions of the motion alleging prosecutorial misconduct and violation of the Speedy Trial Act is deferred pending an evidentiary hearing.

 Background

 Unless otherwise indicated, the following facts are undisputed. *fn2"

 Some time between twelve noon and 2:00 p.m. on February 27, 1991, DiGregorio arrived at the Vista Hotel in New York City (the "Vista"). He was met by individuals who pointed guns at his head and ordered him to go with them. He did not resist and was taken to the United States Customs House at the World Trade Center. Upon arriving there, he was informed that these individuals were Special Agents James Willman ("Agent Willman") and Thomas McCormick ("Agent McCormick") of the United States Secret Service (the "Secret Service") and Special Agent Robert Ward ("Agent Ward") of the Federal Bureau of Investigation (the "FBI").

 DiGregorio was subjected to a strip and body cavity search. According to DiGregorio, he was not, at any time, informed of his rights. *fn3" Agents Willman and Ward then informed DiGregorio that he "faced federal felony charges" and explained to him the "benefits of cooperating" with them. Government's Memo. at 4. The 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. *fn4"

 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. *fn5" 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. *fn6" 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. *fn7" 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. *fn8"

 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. *fn9"

 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. *fn10"

 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." *fn11" 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. *fn12"

 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 ...


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