of Staples or Bay Banks are alleged to have relied on defendant's credit applications. This in turn will assist the defense in preparing for trial and in focusing on such issues as the materiality of any representations which are now claimed to have been fraudulently made.
. . . Disclosure of a witness list will enable defendant to determine which persons connected with DAC are claiming that his use of this credit line was unauthorized which, in turn, will enable defendant to prepare his defense based on his knowledge of his relationship to those individuals.
Def. Mem., at 5.
Rule 16 of the Federal Rules of Criminal Procedure "does not require the Government to furnish the names and addresses of its witnesses in general." United States v. Bejasa, 904 F.2d 137, 139 (2d Cir.), cert. denied, 112 L. Ed. 2d 252, 111 S. Ct. 299 (1990). Although the court has the power to compel pretrial disclosure of the identity of the Government's witnesses in appropriate cases, the defendant must first make a "'specific showing that disclosure [is] both material to the preparation of [the] defense and reasonable in light of the circumstances surrounding [the] case. . . .'" Id. at 139-40 (quoting United States v. Cannone, 528 F.2d 296, 301 (2d Cir 1975)); see also United States v. Taylor, 707 F. Supp. 696, 703 (S.D.N.Y 1989) (court must balance defendant's need for disclosure against Government's interest in protecting identity, prior to trial, of prospective Government witnesses).
Defendant has failed to make any specific showing of his need for pretrial disclosure of a witness list. Defendant's claim that such information will help him "focus" on the issue of the "materiality" of his alleged fraudulent statements, is wholly conclusory and insufficient to compel disclosure, especially in light of the Government's responses to defendant's request for a bill of particulars which detail the fraudulent misrepresentations which serve as the basis of Counts One through Six of the indictment. Defendant's claim that disclosure of the Government's witnesses is necessary in order to prepare his defense based on his knowledge of his relationship to individuals connected to DAC Medical Data Services is similarly conclusory. Defendant has indicated no reason why he could not adequately defend against the charge in Count Seven of the indictment upon learning the identities of the Government witnesses when they take the witness stand at trial. Moreover, by reason of his apparent prior association with DAC Medical Data Services, defendant already should be aware of the potential witnesses against him.
Accordingly, as defendant has failed to make any specific showing of his need for pretrial disclosure of a witness list, and this is not a case in which the Government is withholding the identities of or access to witnesses whose presence at trial would surprise the defendant, see United States v. Bejasa, 904 F.2d at 140, defendant's motion to compel pre-trial disclosure of the Government's witness list is denied.
III. Suppression of Post-Arrest Statements
Defendant alleges that his oral and written post-arrest statements were the product of improper coercion by Agents Maxilla and Harkins, in violation of his Sixth Amendment right to counsel, were therefore "involuntary," and therefore should be suppressed.
The law governing post-arrest questioning is well-settled. Prior to custodial interrogation, suspects must be advised of their right to remain silent and to the presence of an attorney. Miranda, 384 U.S. at 436. Of course, if a suspect requests counsel, all interrogation must cease until an attorney is present. Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). The right to have counsel present during a post-arrest interview, however, may be waived if the waiver is "knowing, intelligent and voluntary." United States v. Gotay, 844 F.2d 971, 974 (2d Cir. 1988); see Michigan v. Harvey, 494 U.S. 344, 108 L. Ed. 2d 293, 110 S. Ct. 1176 (1990) (the State must prove a voluntary, knowing and intelligent relinquishment of the Sixth Amendment right to counsel); Patterson v. Illinois, 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389 (1988) (same). As stated by the Second Circuit:
the sixth amendment right to counsel can be knowingly and voluntarily waived by a criminal defendant who has been made fully aware of the nature of the right being abandoned and the consequences of the abandonment.
. . .
Once an accused understands that he is under arrest, and, after receiving the Miranda warnings, understands his right to remain silent, the potential consequences of speaking, and his right to counsel, including during interrogation, he is fully apprised of the information needed to make a knowing waiver of the sixth amendment right . . . .
United States v. Charria, 919 F.2d 842, 846-88 (2d Cir. 1990), cert. denied, 116 L. Ed. 2d 38, 112 S. Ct. 62 (1991). The Government thus bears the burden of establishing, by a preponderance of the evidence, that the defendant's statement was voluntary, and was not the product of threats, violence or the exertion of improper influence or coercion. See Hutto v. Ross, 429 U.S. 28, 30, 50 L. Ed. 2d 194, 97 S. Ct. 202 (1976); Haynes v. Washington, 373 U.S. 503, 513-14, 10 L. Ed. 2d 513, 83 S. Ct. 1336 (1963); United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991).
In assessing the voluntariness of a defendant's waiver of his Sixth Amendment right to counsel, the proper test is "whether the waiver . . . [was] 'the product of an essentially free and unconstrained choice by its maker.'" United States v. Bye, 919 F.2d 6, 8-9 (2d Cir. 1990) (quoting United States v. Arango-Correa, 851 F.2d 54, 57 (2d Cir. 1988) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 225, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973))). When conducting this inquiry, the court should consider "the totality of all the surrounding circumstances, which may include the accused's characteristics, the conditions of interrogation, and the conduct of law enforcement officials." United States v. Anderson, 929 F.2d at 99 (quoting Schneckloth v. Bustamonte, 412 U.S. at 226)); see also United States v. Alvarado, 882 F.2d 645, 649 (2d Cir. 1989) ("factors to be considered include 'the type and length of questioning, the defendant's physical and mental capabilities, and the government's method of interrogation'"), cert. denied, 493 U.S. 1071, 107 L. Ed. 2d 1021, 110 S. Ct. 1114 (1990) (quoting United States v. Mast, 735 F.2d 745, 749 (2d Cir. 1984)).
An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver. North Carolina v. Butler, 441 U.S. 369, 373, 60 L. Ed. 2d 286, 99 S. Ct. 1755 (1979). Moreover, a statement made by a defendant is not rendered "involuntary" merely because a law enforcement officer informed the defendant of the penalties he faced, United States v. Alvarado, 882 F.2d at 650; United States v. Pomares, 499 F.2d 1220, 1222 (2d Cir.), cert. denied, 419 U.S. 1032, 42 L. Ed. 2d 307, 95 S. Ct. 514 (1974), that he would receive more lenient treatment if he cooperated, United States v. Guarno, 819 F.2d 28, 31 (2d Cir. 1987), of the nature of the evidence against him, United States v. Tutino, 883 F.2d 1125, 1138 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1044, 110 S. Ct. 1139 (1990), or of the possible sentence he would face and the benefits he would gain by cooperating. United States v. Bye, 919 F.2d at 9-10. Rather, "regardless of whether the agent's statements were false, misleading, or intended to trick and cajole the defendant into confessing, specific findings must be made that under the totality of the circumstances . . . the defendant's will was overborne by the agent's conduct." United States v. Anderson, 929 F.2d at 99.
The record in this case, including the credible and unimpeached testimony of Agents Harkins, Keating and Mattiace, indicates that defendant's waiver of his right to counsel was knowing, intelligent and voluntary.
Before making any oral or written statement, the defendant executed clear and unequivocal waivers of his right to counsel. Tr. at 6-8, 15-17, 29-30, 51, 57-58. Defendant expressed no difficulty or confusion in comprehending the waivers, Tr. at 8, 17 52, 58, and, prior to executing the first waiver form, commented to the Agents that he was familiar with his rights because "he works for a lawyer and . . . is currently taking paralegal courses." Tr. at 6, 51. This is strong evidence that defendant acted knowingly and voluntarily when he executed the waivers. See North Carolina v. Butler, 441 U.S. at 373; see also United States v. Scarpa, 897 F.2d 63, 68 (2d Cir.), cert. denied, 112 L. Ed. 2d 32, 111 S. Ct. 57 (1990) (court rejected Sixth Amendment challenge to admission of defendant's post-arrest statements where defendant "chose" to confront law enforcement officers without the assistance of counsel, where "at the time of arrest he had in his possession three telephone numbers for the attorney representing one of his co-defendants" but "at no time did he attempt to obtain counsel for himself" or "have his wife contact an attorney in his behalf," where the defendant "expressed an understanding of his rights, indeed interrupted the Agent who advised him of his rights, to indicate both his familiarity with them and his determination to make his own decisions," and where the circumstances reveal a self-confident defendant who knew whether and when he wanted an attorney"); cf. United States v. Isom, 588 F.2d 858, 862 (2d Cir. 1978) (district court's finding of voluntary waiver of Fifth Amendment right affirmed where defendant "expressed his understanding of his rights as they were read to him, signed the waiver of rights form, and had had rather considerable prior experience with law enforcement officers").
Moreover, notwithstanding defendant's averment that he "asked Agent Harkins for a lawyer," Broccolo Aff., at P 5, the agents' credible testimony established that at no time did defendant request to speak to an attorney, despite the agents having given the defendant and his family every opportunity to do so. Specifically, at the time of defendant's arrest, Agent Keating gave defendant's father his business card with the location and telephone number of the F.B.I.'s New Rochelle headquarters and informed him that the Agents were taking the defendant there, Tr. at 47; and Agent Harkins permitted the defendant to telephone his family both times he asked to do so. Tr. at 12, 19-20, 54, 58. Despite the two telephone calls to family members, defendant, who lived with his parents and was admittedly familiar with the legal process, never asked family members to obtain an attorney for him.
Defendant avers that "during Agent Harkins questioning of me, I asked to make a telephone call, but he did not permit me to do so. It was my intention to telephone a lawyer." Broccolo Aff., at P 6. Defendant also avers that although he was later permitted to make telephone calls, he telephoned family members rather than a lawyer, "because [he] thought it was too late, since [he] had already made a statement." Id. Significantly, these statements contain no indication that defendant ever communicated to the agents his "intention" to telephone a lawyer. As the right to counsel must be specifically invoked, see Edwards v. Arizona, 451 U.S. at 482, these statements fail to raise a factual issue with respect to defendant's claim that he was denied counsel. Viewed most favorably to defendant, such statements indicate the coincidence of two disjointed events: defendant's momentary, unarticulated intent to telephone a lawyer, and the agents denial of defendant's request to make a telephone call. Moreover, according to defendant's own account of the event, his request to use the telephone came "during Agent Harkins' questioning," and therefore after defendant had signed one or both of the waiver of rights forms. Defendant's purported request to use the telephone, if credited, would therefore do little to support his claim that his waiver was involuntary. Similarly, in view of the agents' repudiation of defendant's claim that he requested but was denied counsel, the Court discounts defendant's decidedly vague averment that Agent Harkins "implied that [he] would lose the benefits of cooperating if [he] persisted in delaying the interrogation for the arrival of a lawyer." Broccolo Aff., at P 6 (emphasis added).
With respect to defendant's averment that "Agent Harkins told [him], in sum and substance, that if he did not immediately begin to answer questions, [he] could lose the opportunity to benefit from cooperating with the FBI," id. at P 5, even if true such statement, without more, is insufficient to render defendant's statement "involuntary" given the totality of the circumstances of defendant's waiver. See United States v. Alvarado, 882 F.2d at 650; United States v. Pomares, 499 F.2d at 1222; United States v Guarno, 819 F.2d 28, 31 (2d Cir. 1987).
Finally the conditions of the interrogation and conduct of the officers undermine any contention that defendant's "will was overborne." The agents gave uncontroverted and credible testimony that at no time while in the interview room was defendant handcuffed, defendant had stated to family members during a telephone call to them that he was being treated like a "gentleman," defendant was comfortable, and defendant dined, together with the agents, on pizza and soda. Tr. at 5, 56. Far from indicating circumstances which may have tended to overbear defendant's will to make a free and unconstrained choice whether to waive his right to counsel, the record indicates conditions of interrogation that were relaxed, perhaps even amicable, and as conducive to permitting a defendant to make a voluntary and thoughtful decision concerning waiver of his Sixth Amendment right as may be possible under circumstances of custodial arrest.
Although Agent Harkins acknowledges that he understood defendant to be represented by an attorney, Paul Squitieri, Esq., in several civil matters, and nevertheless continued to interrogate defendant, defendant's heavy reliance on this fact is misplaced. Under the law of this Circuit, in contrast to what had been the law of the State of New York during most of the last decade, see People v. Bing, 76 N.Y.2d 331, 559 N.Y.S.2d 474, 558 N.E.2d 1011 (1990) (overruling People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371 (1981) (a suspect, represented by counsel on a prior pending charge, may not waive his rights in the absence of counsel and answer questions on new unrelated charges)), a suspect has no indelible Sixth Amendment right to counsel which requires the presence of counsel in order for a waiver of such right to be recognized. Thus, in view of this Court's finding that defendant's waiver of his right to counsel was knowing, intelligent and voluntary, the agents' knowledge of Squitieri's representation of defendant in a number of civil
matters is irrelevant to a determination of whether defendant's post-arrest statements should be suppressed.
For the reasons set forth above, defendant's motion for an order severing Count Eight from Counts One through Seven of the indictment, compelling the Government to disclose a witness list in advance of trial, and suppressing defendant's post-arrest statements, is denied.
SHIRLEY WOHL KRAM
UNITED STATES DISTRICT JUDGE
Dated: New York, New York
July 9, 1992