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UNITED STATES v. DELL'ARIA

December 23, 1992

UNITED STATES OF AMERICA,
v.
VICTOR DELL'ARIA, Defendant.


Ross


The opinion of the court was delivered by: ALLYNE R. ROSS

Ross, United States Magistrate Judge:

 Defendant, Victor Dell'Aria, has moved to suppress statements made by him on the night of January 12, 1992 after his arrest at John F. Kennedy (JFK) Airport as well as statements he made on the following day while awaiting arraignment in the courtroom of a magistrate judge. Having conducted an evidentiary hearing and received post-hearing submissions from the parties, I recommend that the first set of statements be suppressed as violative of defendant's rights under Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1978), and its progeny. Finding the second set of statements to be unprovoked, spontaneous utterances, however, I recommend that they be held admissible at trial.

 FACTS

 At the hearing, the government called as witnesses Inspectors Donald McClelland and Dennis McManaman of the United States Postal Inspection Service, Special Agent Dawn Naples of the United States Secret Service, and New York City Police Detective Jack McCann. Defendant offered no evidence. I preface the following recitation by noting at the outset that I found each of the government's witnesses to be candid and truthful and have thus credited their testimony fully.

 Defendant, Victor Dell'Aria, employed as a baggage handler by Trans World Airlines (TWA) at JFK Airport, was arrested when he arrived at work on the night shift at 11:00 p.m. on January 12, 1992. Through Detective McCann's prearrangement with Joe Daly, a TWA security manager, Dell'Aria was directed to report immediately to the TWA security office. There, he was taken into custody by Detective McCann on a New York City warrant for possession of stolen property -- specifically, certain ancient, valuable Greek and Roman coins believed to have been stolen from an international shipment as it passed through JFK Airport from Philadelphia, Pennsylvania en route to various European destinations. United States Postal Inspectors McClelland and McManaman and Secret Service Agent Dawn Naples accompanied Detective McCann when he made the arrest.

 Following his arrest at the TWA security office, Dell'Aria was not advised of his Miranda rights. He was, however, asked by McCann to cooperate in the investigation of the theft. Although McCann denied that he then put any direct questions to Dell'Aria, he recalled stating to Dell'Aria that "it would be helpful to him if he gave us the rest of the property that was taken and . . . cooperated" by identifying "any cohorts" in the scheme. McCann also advised the defendant that the authorities were knowledgeable about what had occurred, and prompted him to give "some serious thought as to how he wanted to conduct himself and cooperate with the authorities." Dell'Aria made no response to McCann's solicitations.

 Defendant was then taken in handcuffs on a fifteen minute car ride from the TWA security building to the federal postal inspection facility at the airport. During the drive, and still without advising Dell'Aria of his Miranda rights, Detective McCann pursued his efforts to secure Dell'Aria's cooperation. To that end, he related certain information developed in the investigation, advising, for example, that he was aware that Dell'Aria had presented the stolen coins for sale and had recently vacationed in Las Vegas. Further, as McCann recounted it in his testimony, he "indicated to . . . [Dell'Aria] that . . . [he] had a good case . . . that . . . [Dell'Aria] was in possession of this property and, once again, if [Dell'Aria] cooperated, . . . as a first time offender, . . . [his cooperation] would be taken into consideration." McCann did not recall asking any specific questions in the car, intending, rather, "to set the tone so when we got to the facilities . . . he would cooperate." McCann did not, however, testify that he cautioned Dell'Aria not to speak or otherwise advised him that he would not be questioned until a later time. Inspector McManaman, who drove the vehicle in which the Detective and Dell'Aria rode, did not remember the statements McCann related in his testimony. McManaman recalled only that after McCann asked Dell'Aria several "neutral" questions that failed to elicit any response, all conversation ceased. Both witnesses testified that during the drive, Dell'Aria remained "mute."

 Upon arriving at the JFK postal facility, Detective McCann escorted Dell'Aria to an interview room where he finally set about securing the cooperation he had previously counselled. Still, no advise of rights was administered, nor was Dell'Aria any more forthcoming with the cooperation McCann had repeatedly sought. To the contrary, Dell'Aria was "antagonistic" towards McCann, remaining mute and making "glaring" and "smirking" "facial expressions . . . indicating that . . . [the two] were not going to establish a rapport." McCann acknowledged that Dell'Aria "refused to make any statements" to him and indeed "would not speak to [him] about anything relating to the facts."

 Although Inspector McClelland had no recollection of being present during McCann's interview with Dell'Aria, he remembered that McCann had attempted to conduct such an interview because he recalled that McCann "came out of . . . the office where he was with Mr. Dell'Aria . . . [threw] his hands up into the air and said that the individual would not give him his name." McClelland also expressed doubt that McCann could have successfully advised Dell'Aria of his Miranda warnings in view of McCann's complete inability to persuade Dell'Aria to speak at all. McClelland testified that when McCann emerged from the interview room with Dell'Aria, he secured McCann's permission to speak with the defendant. He invited Dell'Aria to accompany him two rooms down the hall to the lunchroom, located in the postal facility's same ten office suite. There, the two sat at a table with postal Inspector McManaman and Secret Service Agent Naples. Inspector McManaman recalled that during the ensuing interview, others walked in and out of the room, including Detective McCann.

 McClelland proceeded to explain to Dell'Aria that he was a postal inspector investigating the loss of a high value shipment of ancient coins from Philadelphia to JFK Airport via TWA Airlines, some of which had been recovered from Christie's auction gallery in Manhattan, and that he wanted to speak with the defendant "in greater detail about that matter." When Dell'Aria expressed a willingness to speak, at approximately 11:30 p.m., McClelland advised him of his Miranda rights. Dell'Aria acknowledged understanding his rights and executed the written "advice of rights" form. Although he stated that he did not wish to sign the written "waiver of rights" form, he unequivocally reaffirmed that he was willing to discuss the case with the inspectors. This was the first occasion since his arrest on which defendant was administered his Miranda rights.

 After Inspector McClelland apprised Dell'Aria of certain further details of the investigation, the latter stated that he had purchased the 29 ancient coins for $ 600 from a dark-haired, well-dressed "guido" during a lunch hour at the New Park Pizzeria on Cross Bay Boulevard in Howard Beach. When Inspector McClelland expressed surprise at the coincidence that the very same coins that the defendant purchased in Hyde Park had disappeared at JFK Airport where the defendant worked and inquired whether he was concerned that "there might be something wrong with the transaction", Dell'Aria retorted that "he thought it might be kinda . . . shady but it was a good deal he was getting." As recalled by Inspector McManaman, Dell'Aria also quipped: "You guys aren't too smart. Don't pat yourselves on the back. You know I brought these to Christie's and I gave them my true name. It wasn't hard to track me down you know." McManaman also recalled that early on in the interview, while the postal inspectors were "laying out [for Dell'Aria] the case" they had developed against him, the defendant was escorted to the evidence room and shown the hundreds of ripped envelopes originally containing the coins that had been recovered at the airport during the investigation.

 Approximately 30 minutes into the interview, Inspector McClelland inquired about a missing coin; although Dell'Aria had advised a Christie's representative that he had a total of 30 coins, he had left with the auction house only 29 coins for consignment sale. In response, defendant offered: "You could search my house. I didn't do anything. There is no problem." When Inspector McManaman presented him with a "consent to search" form, defendant stated that he wished to speak ...


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