Id. (citations omitted).
In the instant case, Detective McCann testified that he first sought Dell'Aria's cooperation immediately following the latter's arrest at the TWA security building, specifying for Dell'Aria the nature of the cooperation he was seeking and communicating to Dell'Aria that he was knowledgeable about the details of the theft and defendant's participation in it. Thereafter, during the fifteen minute car ride to the postal inspection facility at the airport, McCann continued his solicitation of Dell'Aria's cooperation, relating in greater detail the information he had developed in his investigation and specifically representing that cooperation would inure to Dell'Aria's benefit, especially since he was a "first time offender." While testifying that he posed no specific questions to Dell'Aria on these occasions, McCann at no time indicated that he assured Dell'Aria that he would not then be questioned. Finally, upon arriving at the JFK postal facility, Detective McCann set about a full-scale interview, still without administering any advice of rights. On this occasion, even after it became evident to him that Dell'Aria had "refused to make any statements" and "would not speak to [him] about anything relating to the facts," McCann proceeded, methodically and in painstaking detail, to lay out his case against Dell'Aria, for the express purpose of prompting the defendant to "reach . . . the logical conclusion that we had him" and thus to "set the stage for . . . [Dell'Aria's] cooperation with postal inspectors."
At the close of McCann's fifteen minute interview, during which Dell'Aria unmistakably and unwaveringly invoked his right to silence, Dell'Aria was immediately handed over to the waiting postal inspectors for further interrogation. McCann acknowledged that during the latter part of his interview, he had intentionally prepared the way for the inspectors' continued interrogation; and the inspectors readily acknowledged that they asked McCann's permission to question Dell'Aria precisely because they knew that the defendant had refused to answer any of McCann's questions. In short, although different law enforcement officers interrogated Dell'Aria during the second interview, the detective consciously anticipated the inspectors' subsequent interrogation of the defendant, and the inspectors were amply apprised of the detective's concerted but futile efforts to secure his cooperation, which had ceased only moments before. Indeed, McCann recalled one or more postal inspectors being present during at least some portion of all three of his interrogations of Dell'Aria. Such a consciously intended "passing off" of a defendant who has asserted his right to silence from one law enforcement officer to others for the very purpose of immediate re-interrogation cannot meet the heightened standard of Mosley mandating that the defendant's right to silence be "scrupulously honored." Indeed, as Circuit Judge Meskill wrote in Campaneria v. Reid, 891 F.2d 1014, 1021, "this is precisely the sort of conduct the prophylactic rule seeks to prevent."
In an apparent effort to square this conduct by interrogating authorities with the dictates of Mosely, the government argues that Dell'Aria's "refusal to speak to Detective McCann manifested his wish not to talk to the detective personally, rather than a decision not to talk about the case at all." While I agree that the testimony adduced at the hearing supports the conclusion that Dell'Aria may well have controlled the interrogation by choosing whether and with whom he would speak, this does not resolve the issue of whether law enforcement officials "scrupulously honored" his rights under Mosely.
At the outset, it is doubtful that so unequivocal, unwavering and prolonged a refusal to speak as that manifested by Dell'Aria could reasonably be construed as an ambiguous assertion of the right to silence warranting any further inquiry concerning its nature and scope. Even assuming some ambiguity concerning whether his unwillingness to speak demonstrated solely an unwillingness to speak with Detective McCann, however, the postal inspectors did not pose the only questions then permitted by the limited exception to Mosley -- that is, a narrow inquiry, carefully tailored to the strictly limited purpose of clarifying the asserted ambiguity. Rather, they posed the identical, general inquiries that Dell'Aria had just refused to answer, asking that he cooperate in their investigation and respond to questions about the theft. Since the inspectors did not conduct themselves in a manner consistent with the recognized but limited exception to the Mosley rule, requiring that they engage solely in a narrow inquiry aimed at clarifying any asserted ambiguity, the government cannot rely on Dell'Aria's subsequent willingness to speak to cure the inspectors' failings. See Campaneria v. Reid, 891 F.2d 1014, 1022 ("statements made in response to questions after a suspect has invoked his right to remain silent cannot be used to raise doubt about his initial invocation . . .") (citation omitted). Compare United States v. Amaro, 816 F.2d 284, 286 (7th Cir. 1987) (holding admissible statement given to prison official following advise of rights because defendant did "exactly" what he expressed a willingness to do "when he [explicitly] elected to talk to prison officials and not to the FBI agents").
Turning to the remaining factors in the Mosley analysis, the postal inspectors clearly administered an adequate advise of Miranda rights prior to their interrogation, which Dell'Aria acknowledged understanding; and, as the government contends, Dell'Aria's election not to execute the waiver form does not, in the circumstances of this case, render his subsequent statements in any way involuntary. See North Carolina v. Butler, 441 U.S. 369, 60 L. Ed. 2d 286, 99 S. Ct. 1755 (1979) (refusal to execute written waiver does not foreclose valid waiver of Miranda rights). While, as noted, the second interrogation was conducted by the postal inspectors rather than Detective McCann, there is evidence that the inspectors were present during at least some portion of each of McCann's interrogations, and that McCann entered the room at least briefly during the inspectors' interview. Thus, although the active participants in the two interrogations were different, those present during the interviews were not wholly distinct. Moreover, although the postal inspectors brought Dell'Aria to the lunchroom from the interview room before conducting their interrogation, it is doubtful that the move two rooms down the hall in the same ten office postal facility suite constituted the substantial change of context or surroundings considered a factor in applying the "scrupulously honored" rule under Mosley. Finally, it is evident from the testimony that apart from the matters discussed above, the inspectors did not exert overbearing pressure or otherwise act in any way coercively; and that after Dell'Aria freely answered questions for approximately 35 minutes in a manner obviously intended to exculpate himself of the crime with which he had been charged, all questioning ceased as soon as he asked for an attorney.
Summarizing the relevant factors, it is true that the inspectors administrated proper Miranda warnings; engaged in an interview free from overbearing pressure or harassment; immediately ceased questioning when the defendant asked for an attorney and elicited from the defendant only remarks that were obviously intended to be exculpatory. Thus, were the test solely one of voluntariness of defendant's statements in the totality of circumstances, the responses the inspectors elicited from defendant were clearly freely given and would be admissible at trial. Voluntariness, however, is not the test. Once Dell'Aria invoked his right to silence -- and he did -- the test is dictated by Mosley; it becomes necessary to assess whether the authorities "scrupulously honored" defendant's right to cut off questioning, and the focus moves from the defendant and the voluntariness of his conduct to the conduct of the law enforcement authorities themselves. Here, where defendant was subjected to three custodial interrogations within a 30 minute period without benefit of Miranda warnings; where, after defendant invoked his right to cut off questioning, interrogation did not cease but relentlessly persisted notwithstanding his adamant refusal to speak; where the detective and the inspectors acted with knowledge of each other's actions and made parallel, if not joint, efforts consciously aimed at overcoming defendant's muteness and persuading him to speak; and where, in pursuit of this goal, the detective "passed off" the defendant to the inspectors who immediately pursued their interrogation two rooms down the hall in the same suite, it cannot be said that the authorities "scrupulously honored" the defendant's right to silence within the meaning of Michigan v. Mosley, notwithstanding the noted factors otherwise rendering his statements voluntary.
Accordingly, contrary to the government's argument, although the inspectors' efforts to prompt Dell'Aria's reconsideration may not, in fact, have coerced Dell'Aria to speak, it cannot be said that those efforts were made "'in the context that [the] defendant's assertion of his right not to speak [was] honored.'" United States v. Gorski, 852 F.2d 692, 697 (2d Cir. 1988), quoting United States v. Collins, 462 F.2d 792, 797 (2d Cir.) cert. denied, 409 U.S. 988, 34 L. Ed. 2d 254, 93 S. Ct. 343 (1972).
The statements made on the night of January 12, 1992 should, therefore, he suppressed.
B. The Statements Made In the Courtroom of the Magistrate Judge
The credible testimony of the government witnesses amply established that the statements Dell'Aria uttered while awaiting presentment in the courtroom of Magistrate Judge Orenstein on July 15, 1992 were spontaneous and were not provoked by any conduct of the postal inspectors intended to elicit an incriminating response. Indeed, Inspector McMamaman's testimony concerning these statements stands wholly unrebutted. "Volunteered statements of any kind and spontaneous, unprovoked, incriminating statements are not barred by the Fifth Amendment." United States v. Badr, 604 F. Supp. 569 (E.D.N.Y. 1985) (citing United States v. Guido, 704 F.2d at 678). As in United States v. Montana, 958 F.2d at 519, Dell'Aria's unsolicited, inculpatory remarks "were made in the non-threatening surroundings of a Magistrate's Judge's hearing room," and they were made some eight hours after Dell'Aria had declined to answer Detective McCann's questions and had answered the postal inspectors' albeit impermissible questions after receiving his Miranda warnings. "During this period, . . . [Dell'Aria] had ample opportunity to reassess his situation and voluntarily determine whether to waive his constitutional right." United States v. Montana, 958 F.2d at 519. Accordingly, as voluntary statements not otherwise in violation of defendant's Fifth Amendment rights, they are admissible.
For the foregoing reasons, I recommend that defendant's statements of January 12th be suppressed but that his statements of the following day be held admissible in evidence at trial.
ANY OBJECTIONS to this report and recommendation must be filed with the Clerk of Court within (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. Pro. 6(a) a 6(e), 72; Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).
Dated: Brooklyn, New York
December 23, 1992
Allyne R. Ross
United States Magistrate Judge