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December 22, 1992


The opinion of the court was delivered by: DENIS R. HURLEY

 HURLEY, District Judge

 In the above-referenced prosecution, James Leonard ("Leonard"), Donald Brown ("Brown"), Robert Seyfert ("Seyfert"), and John Papajohn, Jr. ("Papajohn"), are charged in a one-count superseding indictment with conspiring to distribute and to possess with intent to distribute hashish, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). Currently before the Court are various pretrial motions made both individually and collectively by defendants. Within this Memorandum and Order, the Court addresses those aspects of the motions discussed below.


 The factual background of this case, as described by the government, is as follows. A confidential informant, ("CI"), working with the United States Drug Enforcement Administration, ("DEA"), was given Leonard's name in the fall of 1990 by a narcotics trafficker living in Pakistan. The trafficker allegedly informed the CI that Leonard owed money to the trafficker for a quantity of heroin previously supplied to Leonard. Consequently, the trafficker asked the CI to obtain the money owed him.

 Sometime during October of 1990, the CI contacted Leonard and initiated a series of telephone conversations and meetings. Throughout these communications, various narcotics transactions were discussed by the parties. In August of 1991, the CI informed Leonard that he had arranged to import two tons of hashish into the United States. Apparently, the CI indicated to Leonard that he had 500 kilograms of the hashish available for sale; Leonard then indicated that he would procure buyers for the hashish.

 On September 12, 1991, the CI arranged to give Leonard a sample of the available hashish. At a location in Brooklyn, New York, the CI, along with two undercover DEA agents, met with Leonard in a van which contained approximately 500 kilograms of hashish. During the meeting, which was video and tape recorded, Leonard inspected the hashish and took approximately one-half kilogram as a sample. Thereafter, on September 15, 1991, Leonard met with the CI on Staten Island. At the meeting, which was recorded, Leonard and the CI discussed the details of the transaction, ultimately agreeing to a price of $ 1,300 per pound. The government further alleges that at that meeting of September 15, 1991, Leonard spoke by telephone with an individual subsequently identified as Brown. In that connection, Leonard informed the CI that Brown was attempting to meet "the Canadians," who were purportedly going to buy most of the available 500 kilograms of hashish.

 On September 19, 1991, the CI met with Leonard in a recorded meeting on Staten Island, at which Leonard gave the CI approximately $ 100,000 as partial payment for an initial three hundred pounds of the hashish. Leonard and the CI then agreed to meet later during that day, at which time Leonard would give the CI the balance of the money due for the initial three hundred pound purchase. Later that afternoon, Leonard and the CI met at the same location. After the CI refused to produce a portion of the hashish absent full payment, Leonard indicated that he would get the balance of the money for the three hundred pounds of hashish.

 Approximately two hours later on that same afternoon of September 19, 1991, Leonard met with the CI again. Leonard stated that he would go down the road to retrieve the balance of the money for the transaction. Agents then followed Leonard, who drove a silver Pontiac, to a Holiday Inn Motel, where Leonard used a pay telephone and then returned to his car. At approximately 6:50 P.M., the agents observed a red Chrysler with two men inside park directly in front of Leonard's car. At that point, Leonard exited his car and, approaching the red Chrysler, pointed to a parking lot across the street. Leonard then drove to the parking lot, as did the red Chrysler, which drove in an "erratic fashion" according to the government. The agents then observed the two cars park adjacent to each other in the parking lot for several minutes, after which time the silver Pontiac drove away. Surveillance of the red Chrysler was maintained.

 Other agents followed the silver Pontiac to the location where the CI had previously met Leonard. Leonard then met with the CI and gave the CI a box containing approximately $ 200,000 in United States currency. Thereafter, Leonard was arrested.

 The agents maintaining surveillance of the red Chrysler observed that the occupants of the car had left the vehicle. The agents then entered a nearby restaurant and asked two patrons how they arrived; the customers responded that they had arrived in the red Chrysler. At that point, the two individuals, later identified as Seyfert and Papajohn, were arrested. At the time of the arrest, the agents found keys to the red Chrysler and approximately $ 10,000 in United States currency on Papajohn's person. A small quantity of hashish was discovered on Seyfert's person. The government further asserts that Papajohn's palm print was subsequently found on one of the bags of currency given to the CI by Leonard.

 As indicated above, all defendants currently move for various types of pre-trial relief.


 I. Brown's Motion to Suppress


 Brown moves to suppress statements made at the time of an interview with DEA agents on September 23, 1992, as well as to suppress statements made by him in a subsequent telephone conversation of September 27, 1992. Given the nature of Brown's motion, it is necessary to examine the facts surrounding the interview of September 23 with some detail.

 According to an affidavit filed by Brown, a relationship between Brown and DEA Special Agent Mario Sessa ("Agent Sessa") and Agent Cipriano has existed since 1979. At that time, Brown was the subject of an investigation and subsequent indictment involving the DEA, and more specifically, Agent Cipriano. It is Brown's assertion that Agent Cipriano did not approve of a cooperation agreement ultimately struck between Brown and the government in relation to the 1979 investigation, and that since that time, Agent Cipriano has felt animosity towards Brown.

 Brown asserts that during the summer of 1991, while living in Texas, he communicated with a friend in New York who informed Brown of a possible heroin importation scheme taking place at John F. Kennedy International Airport in Queens, New York. Brown contends that he agreed to act as an intermediary with the DEA and inform them of the scheme. As a result, Brown was eventually put in contact with Agent Cipriano, who allegedly directed Brown to come to New York and discuss the matter, which Brown did. At the meeting, Agent Cipriano admonished Brown not to discuss the matter with anyone else.

 Subsequently, Brown did in fact mention the matter to defendant Leonard, an individual known by Brown for nearly thirty years, and a person Brown had been speaking to during that period. It is Brown's contention that his "indiscretion" in mentioning the matter to Leonard, in contravention of Agent Cipriano's directions, fueled the current prosecution. Brown further alleges that at that time he was unaware of Leonard's dealings with the CI in the current case. In any event, Brown came to New York in September of 1991 "to see [his] parents and to conduct a further search for a restaurant location." Aff. of Donald Brown at P 12. During that visit, Brown met Leonard at a bar in Queens, New York, at which time Leonard allegedly revealed his scheme to broker the hashish transaction which forms the basis for the current indictment. Brown asserts that he expressed no interest in the deal, although he took a small sample of the hashish at Leonard's insistence.

 The following day, Brown again spoke-to Leonard, and informed Leonard of his (Brown's) suspicions that the arrangements of the potential transaction "sounded like a government sting." Id. at P 13. On the next day, Brown returned to Texas, where he was searched by DEA agents at the airport in Dallas. Brown contends that the search prompted him to contact Leonard and urge him to abandon the hashish transaction, although eventually Leonard allegedly informed Brown that he was going to proceed with the participation of defendant Seyfert. At that point, Brown asserts that he called Seyfert, another long-time acquaintance, and cautioned him to terminate the deal.

 After Brown learned of the arrests of Leonard and Seyfert for the instant offense, he was allegedly told by Leonard that Agent Cipriano inquired of Leonard as to Brown's role in the conspiracy. Id. at P 15. Consequently, according to Brown, he returned to New York and spoke to Agent Cipriano, who advised Brown to come to DEA offices to discuss the matter. Thereafter, Brown contacted Agent Sessa, apparently a less hostile agent in Brown's perception, and inquired whether Agent Sessa believed Brown was required to attend such a meeting. According to Brown, Agent Sessa told him that if he did not appear, he would "in all probability be immediately arrested," Id. at P 16. At one point during these conversations, Brown contends that Agent Cipriano assured him that Agent Sessa would be present at the meeting. On September 23, 1991, Brown went to the DEA offices in New York for the meeting. It is Brown's contention that he fully believed that he would be arrested if he failed to appear. Id. at P 17. Brown asserts that Agent Cipriano and the case agent for the instant prosecution were present, although Agent Sessa was not. Furthermore, Brown contends that the meeting was hostile in tone, and that he "could not leave the meeting had [he terminated] the discussion, but that [he] was in a custodial setting." Id. Nowhere does Brown assert that he was placed under arrest, or that he was actually prohibited from leaving. According to a report subsequently filed by Agent Cipriano, Brown made various statements during the meeting which indicated that Brown sought and actually contacted a potential buyer of the hashish. See Govt's Memo. in Opp. at exhibit D. That Brown was not informed of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), during the course of the meeting is not in dispute.

 Brown claims that he "now" knows that he was a target of the investigation at the time of the meeting on September 23, 1991. During the meeting, Brown allegedly informed Agent Cipriano of an unrelated narcotics deal about which he had information. It is asserted that Agent Cipriano told Brown that he could leave at the conclusion of the meeting, and instructed him to call in a few days about the other narcotics deal. On September 27, 1991, Brown called Agent Cipriano as directed; that conversation was recorded by Agent Cipriano. According to Brown, Agent Cipriano made further inquiry about the instant case during that conversation. Id. at P 19. As noted above, Brown moves to suppress the statements made at the meeting of September 23, 1991, as well as the statements made during his telephone conversation with Agent Cipriano on September 27, 1991, based on the argument that the statements were involuntary, and that the agents failed to advise Brown of his Miranda rights. The government counters that Brown was not in custody for Miranda purposes on either occasion, and that the statements were voluntary and therefore admissible.

 It is well-established that the familiar warnings required to be issued by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), need only be given to one subject to "custodial interrogation." Id. at 444. As originally defined by the Miranda Court, "custodial interrogation . . . [means] questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id.; see also Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984); California v. Beheler, 463 U.S. 1121, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1983); Oregon v. Mathiason, 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977). Through subsequent interpretation, the Supreme Court has had opportunity to review the parameters of "custodial interrogation."

 From a general perspective, it has been noted that a "police-dominated atmosphere . . . is said to generate 'inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.'" Illinois v. Perkins, 496 U.S. 292, 296, 110 L. Ed. 2d 243, 110 S. Ct. 2394 (1990) (quoting Miranda, 384 U.S. at 467). However, strict compliance with Miranda need be maintained "'only in those types of situations in which the concerns that powered the decision are implicated.'" Id. (quoting Berkemer, 468 U.S. at 437). Thus, in the following instances -- which may appear at first blush to have indicated a need for the Miranda warnings -- the Supreme Court has rejected such a requirement based on the reasoning that the interviewee was not in a custodial setting.

 In Mathiason, the victim of a burglary suggested to state police that the defendant may have been involved. 429 U.S. at 493. Thereafter, police left a card at the defendant's apartment asking the defendant to call them. Upon calling the police, the defendant agreed to come to a state patrol office. After arriving at the state patrol office, the defendant was taken into a room with an officer and specifically informed that he was not under arrest. The officer advised the defendant that police believed he was involved with the burglary, and that the defendant's fingerprints were found at the scene. Although the latter point was not true, the defendant shortly confessed to the burglary. Following the confession, the defendant was advised of his Miranda rights, gave a taped confession, and released. Id. at 494.

 In concluding that the initial questioning of the defendant was noncustodial, the Mathiason Court considered that: (1) the defendant voluntarily went to the station; (2) the defendant was told specifically that he was not under arrest; and (3) the defendant left the station without hindrance after the interview. Id. at 495. The Court reasoned that the inherently coercive nature of police questioning a suspect does not give rise to a per se "restriction on . . . freedom" so as to render an interrogation custodial for Miranda purposes. Id.

 In Beheler, the defendant himself contacted police after being involved in a theft which led to murder. 463 U.S. at 1122. The defendant then agreed to accompany police to the station house and was interviewed for thirty minutes, although he was not advised of his Miranda rights. After that interview, the defendant was permitted to leave. In rejecting the lower court's ruling which held that the Miranda warnings were required, a per curiam Court emphasized that the defendant's status as a suspect and the fact that the questioning occurred at a station house were not factors sufficient to trigger Miranda. Id. at 1125 (citing Mathiason, 429 U.S. at 495).

 In light of the above-cited authority, which offers some guiding principles regarding the determination of custodial interrogation, it is important to note that those principles must be considered in the light of the Supreme Court's caution that "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Berkemer, 468 U.S. at 442 (citing Beckwith v. United States, 425 U.S. 341, 346-47, 48 L. Ed. 2d 1, 96 S. Ct. 1612 (1976)) (further citation omitted). Furthermore, as a general matter the government bears the burden of demonstrating "by a preponderance of the evidence that a suspect waived his Miranda rights, and that his confession is truly the product of free choice." United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991) (citing Colorado v. Connelly, 479 U.S. 157, 168-69, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986)).

 Turning to address Brown's telephone call with Agent Cipriano on September 27, 1991, the Court is convinced that the discussion which took place did not occur under conditions constituting "custodial interrogation." It is immediately clear that during the telephone conversation, Brown was neither under formal arrest nor under a "'restraint of freedom of movement.'" Beheler, 463 U.S. at 1125 (quoting Mathiason, 429 U.S. at 495); see also United States v. Kirsteins, 906 F.2d 919, 923 (2d Cir. 1990) (noting that "the governing inquiry in assessing the custodial quality of an interrogation for Miranda purposes is an objective one . . . focusing on whether a reasonable person in the same situation would have believed that he was not free to leave") (emphasis added) (citations omitted). Since the telephone call did not amount to a custodial interrogation, Miranda warnings were not required and the statements made by Brown at the time will not be suppressed on that basis.

 The interview of September 23, 1991, gives the Court greater pause with respect to the issue of custodial interrogation. Although the Supreme Court has repeatedly held that the facts that one is a suspect, or that questioning takes place in a police station and in a coercive atmosphere, do not in and of themselves require the instruction of Miranda warnings, it is equally true that "the circumstances of each case . . . influence a determination of whether a suspect is 'in custody'. . . ." Beheler, 463 U.S. at 1125.

 In the instant case, Brown's history with Agent Cipriano and the fact that Sessa allegedly informed Brown that he would be arrested if he failed to appear are factors which arguably would cause a reasonable man to believe that he was under significant restraint from freedom of movement at the time of the meeting. On the other hand, Brown himself initiated the contact with the DEA, and he does not allege that he was placed under arrest or prohibited from leaving the meeting at any time. Furthermore, it is alleged that the meeting lasted approximately thirty minutes, and that Brown left without hindrance at its conclusion. These factors support a finding that Brown was not in custody for Miranda purposes. *fn1"

 Other points made by the government at a conference before this Court lend further support to the argument that Brown was not in custody. First of all, the government does not concede that Agent Sessa ever indicated to Brown that he would be arrested if he failed to appear. Secondly, the government indicated that at the meeting of September 23, 1991, DEA Agent Falsey, (the other agent attending with Agent Cipriano), indicated to Brown, in substance, that Brown did not have to be at the meeting if he did not desire to be there. See Transcript of Hearing of Oct. 23, 1992 at 102.

 In the Court's view, the bulk of the factors discussed above appear to support the conclusion that Brown was not in custody; however, some clarification is required with respect to certain disputed facts. Accordingly, a hearing will be held to address the circumstances surrounding the meeting of September 23, 1991; the scope of the hearing will be narrow. Since the alleged statement by Agent Sessa regarding possible arrest causes the Court some concern, testimony regarding that alleged statement, as well as any statements made by the agents at the meeting itself, will be addressed at the hearing. Until such time as the hearing is concluded, the Court defers ruling on ...

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