The opinion of the court was delivered by: SHIRLEY WOHL KRAM
SHIRLEY WOHL KRAM, U.S.D.J.
The indictment in this case charges defendant Dennis Broccolo with six counts of wire fraud (Counts One through Six), in violation of 18 U.S.C. § 1343, one count of unauthorized use of an access device with the intent to defraud (Count Seven), in violation of 18 U.S.C. § 1029(a)(2), and one count of making a false oath in a bankruptcy proceeding (Count Eight), in violation of 18 U.S.C. § 152. Defendant now moves for an order (i) pursuant to Rules 8 and 14 of the Federal Rules of Criminal Procedure, severing Count Eight from Counts One through Seven of indictment, (ii) compelling the Government to disclose a witness list in advance of trial, and (iii) pursuant to Rule 12 of the Federal Rules of Criminal Procedure, suppressing post-arrest statements attributed to defendant, on the ground that they were involuntarily made and obtained in violation of his right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
With respect to defendant's suppression motion, the Government consented to an evidentiary hearing which was inducted on March 4 and 6, 1992.
The charges in the indictment involve six corporations, several of which the Government alleges to have been fictitious. Counts One through Six of the indictment allege that the defendant committed wire fraud by telefaxing applications for Staples
credit cards which contained false and fraudulent representations concerning the six corporations: namely, Crystal Commercial Credit Corporation (Count One), Crystal Leasing Corporation (Count Two), Crystal Enterprises Corporation (count Three), Crystal Construction Corporation (Count Four), Commercial Development Corporation (Count Five) and DAC Medical Data Services (Count Six). Count Seven alleges that the defendant used an unauthorized access device with the intent to defraud, namely, the Staples credit card issued to DAC Medical Data Services. Count Eight alleges that the defendant made a false oath with the intent to defraud in his Chapter 7 Bankruptcy Petition; namely, on May 3, 1990, he fraudulently represented to a United States Bankruptcy Court that he had not engaged in any business activity during the preceding six years.
Staples, a company that sells office furniture and equipment, issued credit cards financed by Baybank Boston, N.A. See Government's Memorandum of Law in Opposition to the Defendant's Motion to Sever a Count in the Indictment, to Compel the Production of a Witness List, and to Suppress Statements Made by the Defendant ("Gov't Mem."), at 2 n.1.
Subsequent to the return of the indictment, the Government provided defendant with extensive discovery, including a copy of (1) the defendant's written waiver of rights, executed on July 29, 1991, (2) a Federal Bureau of Investigation ("F.B.I.") Form 302, dated August 7, 1991, describing the defendant's oral statement to F.B.I Special Agent Michael Harkins on July 29, 1991, and (3) the defendant's written statement, dated July 29, 1991, which included a second written waiver of rights executed by defendant. Additionally, in response to defendant's discovery demand the Government provided defendant with copies of the relevant credit card applications, charge slips, delivery manifests, and account statements for the Staples credit cards as well as documents pertaining to defendant's bankruptcy proceeding. In response to defendant's request for a bill of particulars, the Government provided particulars of the fraudulent statements alleged in Counts One through Six, the amount of account charges with respect to Count Seven, and, with respect to Count Eight, the businesses the Government contends the defendant engaged in during the six years preceding May 3, 1990. The Government, however, declined to produce a list of the witnesses it intends to call at trial and the witnesses' business or home addresses, indicating that any information required to be disclosed would be provided in advance of the witnesses' testimony pursuant to its obligations under the Jencks Act. See 18 U.S.C. § 3500.
In support of his motion to suppress oral and written post-arrest statements, defendant submitted an affidavit in which he avers that prior to interrogation, F.B.I. Special Agent Mattiace stated to him: "We know all about you. Either you cooperate or all bets are off," see Affidavit of Dennis Broccolo, sworn to December 16, 1991 ("Broccolo Aff."), at P 3, and that Special Agent Harkins told him that if he did not immediately cooperate he would use the opportunity to do so. Id. at P 4 ("I asked Agent Harkins for a lawyer and he again implied that I would lose the benefits of cooperating if I persisted in delaying the interrogation for the arrival of a lawyer" [emphasis added]). Defendant also claims that he was permitted to make telephone calls but, rather than telephone a lawyer, telephoned family members, "because [he] thought it was too late, since [he] had already made a statement," id. at P 6, and signed waiver of rights forms, "involuntarily," only after Agent Harkins informed him that waiting for a lawyer would not be in his interests. Id. at P 7.
At the suppression hearing,
the Government called three F.B.I. agents: Special Agents Michael Harkins, Joseph Keating and Chris Mattiace. Defendant neither testified nor presented evidence. The relevant facts adduced at the hearing are set forth below.
Defendant was arrested in the late afternoon on July 29, 1991, and was taken to an interview room at the F.B.I. New Rochelle field office. There, he was fingerprinted, permitted to wash his hands, given a soda, and advised of the charges against him. Tr. at 5, 49. At no time while in the interview room was defendant handcuffed. Tr. at 6, 49.
Agent Harkins raised with defendant the subject of his possible cooperation with the F.B.I., stating to defendant in substance that "if [he] wanted to cooperate [the agents] would be willing to listen and to interview him, [and] that his cooperation would be made known to the Assistant United States Attorney, and the court, which could possibly benefit him, but [that the agents] couldn't make any promises." Tr. at 28-29. Defendant responded by stating that he wished to cooperate. Tr. at 29.
Agent Harkins then retrieved an advice of rights form
and advised defendant of his Miranda rights by reading aloud the Miranda warnings appearing on the form. Tr. at 6. Agent Harkins then permitted defendant to read the form himself. Id. Defendant read the form and stated that he worked for a lawyer, was taking paralegal courses, and understood his rights. Tr. at 6, 51, 76. Defendant then signed the form and, in response to questioning by the agents, made oral statements concerning the fraudulent conduct alleged in the indictment. Tr. at 9-11. Defendant also stated to the agents, and the agents understood, that Paul Squitieri, Esq., was defendant's attorney and had represented defendant in connection with his personal bankruptcy and the incorporation of Crystal Commercial Credit Corporation. Tr. at 20-24
At 8:45 p.m., after the interview had proceeded for approximately one and one half hours, defendant requested that he be permitted to make a telephone call. He was permitted to do so and telephoned family members. Defendant informed them that he was "okay" and was being treated like a "gentleman." Tr. at 14, 55. After the telephone call, Agents Harkins and Keating resumed the interview. At approximately 9:15 p.m., the Agents adjourned for a dinner break, at which time Agent Keating brought pizza and soda into the interview room. Tr. at 14, 56. Defendant ate with the agents. Id.
After dinner, Agent Harkins asked defendant if what he had been telling the agents was truthful. Tr. at 56-57. Defendant responded that it was. Tr. at 57. Agent Harkins then asked defendant if he would be willing to make a written statement, to which defendant responded he would. Id.
Agent Harkins then retrieved a second advice of rights form, identical to the first, again read defendant his Miranda rights from the form, and had defendant sign the form. See Gov't Exhibit "2." Defendant read and executed the form. Tr. at 16-17. Defendant then proceeded to dictate a statement which Agent Harkins copied down. Agent Harkins read aloud to defendant the entire statement and permitted defendant to read the statement himself. Id. Defendant then signed the statement. Tr. at 18.
At approximately 11:00 p.m., defendant requested permission to telephone his family and was permitted to do so. Tr. at 19, 58-59. He told them that he was going to be taken to the New Rochelle Police Department jail and either would be held overnight and released, or taken to White Plains. Tr. at 19. Defendant was subsequently committed to the custody of the New Rochelle Police. Id.
The agents credibly testified that at no time during the events of July 29, 1991, either before or after being taken into custody, did defendant request to speak with a lawyer, Tr. at 8, 44, 59, ask to telephone a lawyer, Tr. at 51, or indicate that he was uncomfortable. Tr. at 6.
Defendant contends that because Count Eight of the indictment concerns his personal bankruptcy petition, while Counts One through Seven allege "that he secured credit by exaggerating the extent of his business activities," joinder of Count Eight is improper since the offenses are not of the same or similar character. Defendant also contends that a severance is warranted since he has "important testimony to give" with respect to Count Eight but a strong need to ...