The opinion of the court was delivered by: LESLIE G. FOSCHIO
REPORT and RECOMMENDATION
This matter was referred to the undersigned by the Hon. Richard J. Arcara on February 5, 1992 for report and recommendation on any dispositive motions. The matter is presently before the court on the motions of Defendants John T. Sacco and Richard S. Sacco to suppress evidence, dated May 18, 1992 and February 24, 1992, respectively.
John T. Sacco and Richard S. Sacco, along with eleven other co-defendants, were indicted in a twenty-one count indictment, dated October 15, 1991, charging violations of 21 U.S.C. § 841, 21 U.S.C. § 846, 21 U.S.C. § 848, 21 U.S.C. § 853, 21 U.S.C. § 856, 18 U.S.C. § 1623 and 18 U.S.C. § 2. Specifically, Defendants are charged with conspiracy to distribute marijuana and possession with intent to distribute marijuana. There are additional counts against certain defendants for owning real property and making such property available for the purposes of storing and distributing marijuana, for making false statements to the grand jury, and two criminal forfeiture counts.
Motions to suppress on behalf of co-defendants Glenn E. Wolffe and Joseph R. Orcutt, dated April 20, 1992 and April 9, 1992, were denied, following an evidentiary hearing, upon the Report and Recommendation of this court dated February 4, 1994, by Hon. Richard J. Arcara in a Decision and Order filed May 5, 1994.
A motion for pretrial discovery, including particularization, filed by all co-defendants was denied by a Decision and Order of this court dated May 5, 1992. A motion by co-defendant Zander, to dismiss the Indictment was denied by Decision and Order of Hon. Richard J. Arcara on September 7, 1994 upon this court's Report and Recommendation dated May 7, 1992. On July 28, 1992, this court denied motion for severance on behalf on co-defendants Santa Maria, Holland and Poulous.
John T. Sacco's motion seeks to suppress statements made by him to agents of the Federal Bureau of Investigation (FBI) during a late evening conversation on February 8, 1990 and extending into the early morning of February 9, 1990. Richard S. Sacco seeks to suppress statements made by him to FBI agents in meetings conducted March 27, 1990, May 11, 1990 and May 17, 1990. The Government's response to the Defendants' motion was filed June 11, 1992 and an extended evidentiary hearing was conducted on December 1, 1992, March 2, 1993 (two volumes), April 19, 1993, April 26, 1993, May 6, 1993, May 11, 1993, May 18, 1993, June 3, 1993 and June 25, 1993.
The Government called eight witnesses and both Defendants testified. Government Exhibits 1 through 15, and Defendants' Exhibits 1 and 2 were admitted into evidence. A brief on behalf of John T. Sacco was filed November 3, 1993; the Government's brief in opposition was filed December 27, 1993. Oral argument was held on January 6, 1994 at which time counsel to Richard S. Sacco advised the court that he had not filed a memorandum in support of Sacco's motion as he had concluded that the position taken by his client, Richard S. Sacco, could not be supported based on the record of the evidentiary hearing. However, he joined in the argument put forth by counsel to John T. Sacco.
For the reasons which follow, Defendants' motions to suppress should be DENIED.
On February 28, 1987, United States Border Patrol Agents stopped and searched a motor home traveling on an interstate highway near Las Cruces, New Mexico. As a result of the stop and search of the vehicle, a briefcase containing a small bag of marijuana and a brown leather suitcase containing $ 125 thousand in currency and a handwritten note were seized. The driver of the motor home was Glenn Wolffe and his passenger was Joseph Orcutt, co-defendants in this case. See United States v. Wolffe and Orcutt, 91-CR-241A Report and Recommendation dated February 4, 1994 at pp. 3, 7-9. Both the motor home and currency were thereafter subject to a civil forfeiture action by the Government, however, the case was settled and the motor home and a portion of the currency were returned to Wolffe in December, 1987. See Report and Recommendation, supra, at 11.
On July 22, 1989, at approximately 10:00 p.m., a team of FBI agents, led by Special Agent J. Ronnie Webb, then in charge of the Organized Crime Unit of the local FBI office, executed a search warrant for the residence and person of John C. Sacco at 278 Commonwealth Avenue in the City of Buffalo. (T.VIII.5,9,12; T.IX.3). Sacco was a reputed member of local organized crime in the Buffalo area, the father of John T. Sacco and brother of Richard S. Sacco. (T.I.6,56; T.VIII.22). Sacco had served eighteen years in prison on state and federal charges (T.VIII.56), and while incarcerated had refused to discuss with the FBI opportunities for release in return for cooperation with the Government. (T.VIII.56, T.IX.113). The search warrant was based on prior electronic surveillance at Sacco's residence, and authorized the seizure of controlled substances and proceeds of drug trafficking. (T.VIII.6,15,39,44). The resulting search did not yield any narcotics, but some money proceeds of Sacco's loansharking operation were discovered, which Sacco was allowed to retain. (T.VIII.44). Upon his arrival at Sacco's residence, Special Agent Webb engaged Sacco in a lengthy conversation which extended into the early morning hours of July 23, 1989. (T.VIII.9). In that conversation, Agent Webb told Sacco about the information available to the FBI which established his involvement in various crimes, and the involvement on his son, John T. Sacco, as a leader in a Mexico-United States marijuana smuggling conspiracy, then ongoing, and in which John C. Sacco was also involved as both a supplier of capital and advice to his son, John T. Sacco, as well as a distributor of the marijuana. (T.VIII.44,51-53). The FBI also indicated it was aware that John T. Sacco's home was probably purchased with drug proceeds. (T.VIII.44).
The purpose of the conversation was to attempt to obtain John C. Sacco's cooperation in acting as a cooperating witness and assist the FBI in investigating organized crime activities in the Buffalo area. (T.VIII.10). Although Agent Webb, at that point, did not, in fact, believe he had sufficient evidence to obtain an indictment against John T. Sacco, he, nevertheless, stated to John C. Sacco that such an indictment could be obtained. (T.VIII.63,66-69). The FBI, however, expected to obtain the necessary evidence at a later time. (T.VIII.73). Sacco was advised about the FBI investigation as to his son to encourage him to agree to cooperate with the FBI. (T.VIII.73,89). At that time, the FBI had no search or arrest warrants for John T. Sacco or his uncle, Richard. (T.VIII.7, T.IX.4). Agent Webb's objective was to first obtain John C. Sacco's cooperation in the organized crime phase of the investigation and, when that phase was completed and prior to the fact of Sacco's cooperation becoming public, to obtain Sacco's assistance in persuading his son to also cooperate with the Government. (T.VIII.18,99-100). Within the first hour of the conversation, Sacco, who was then on parole, agreed to cooperate. (T.VIII.58).
No explicit promises to John C. Sacco were made at that point as to any favorable treatment he might receive regarding a possible reduced plea, sentencing and similar considerations, rather Agent Webb specifically advised him that such agreements would have to be separately negotiated with the United States Attorney. (T.VIII.8,11). No promises as to possible favorable treatment for his son or brother were then made to Sacco. (T.VIII.8). Webb was confident that, as the on-scene commander, he would have known if any of the other agents on the premises had attempted to make different statements to Sacco regarding the probable outcome of his cooperation and would have prevented this from occurring. (T.VIII.12,31). Administrative penalties would apply to any agents who attempt to make such arrangements without the approval of the United States Attorney. (T.VIII.12).
As the evidence outlined by Webb showed that the Government's cases against Sacco and his son were connected, Sacco expressed concern about his son and was advised by Webb that if his cooperation was satisfactory to the Government, his son could, after Sacco's identity as a government cooperating witness became public, approach the FBI and negotiate a "deal" as to his involvement in the Mexico-United States marijuana distribution operation, about which the FBI wanted further details. (T.VIII.18). Sacco was therefore advised that there would be no promises or commitments regarding possible favorable treatment of his son as it made no sense for the Government to relinquish its leverage on obtaining Sacco's cooperation in the organized crime phase of the investigation by then bargaining away its power to prosecute his son for his involvement in the marijuana smuggling operation. (T.VIII.18). Accordingly, no promises to Sacco regarding consideration for his son were made at that time. (T.VIII.18).
Following the initial discussion as to his becoming a cooperating witness on July 2, 1989, Sacco was given a proposed standard FBI cooperating witness agreement for execution, Government Exhibit 14, which Sacco retained for several months without signing. (T.VIII.20). The agreement was not executed by Sacco until February 5, 1990 and by G. Robert Langford, Special Agent in Charge of the FBI for the Buffalo area, on February 12, 1990. During the initial period of his work as a cooperating witness, Sacco, who had been paid $ 3,000 per month by the FBI for his services (T.VII.226), repeatedly demanded that the agreement refer to favorable consideration for his son in return for Sacco's cooperation, however, this was consistently rejected by the FBI. (T.VIII.21). Up to the point when the agreement was signed, Sacco's usefulness to the FBI was minimal. (T.VII.227). Neither at the time of the July 22 meeting nor during the intervening months leading to the execution of the agreement, did Sacco ever mention in his conversation any request for favorable treatment regarding his brother, Richard S. Sacco. (T.VIII.25-26, T.IX.4). Prior to receiving the proposed cooperating witness agreement in September, 1989, Sacco was given offers of immunity from the United States Attorney and the Erie County District Attorney by letters dated July 28 and August 1, 1989, respectively. See Defense Exhibits 1 and 2. Except for the United States Attorney, District Attorney and members of the FBI organized crime unit, no one else was informed of Sacco's cooperation as it would have created serious risks of danger to him. Sacco was, therefore, admonished not to advise his son or relatives of his cooperation. (T.VIII.23,24-25).
After his July 22, 1989 discussions with the FBI and despite the fact that he had not yet executed a cooperating witness agreement, Sacco participated in debriefing sessions with the FBI regarding his activities and information he might possess regarding organized crime activity in the Buffalo area, and discussed wearing a recording device. (T.VII. 126-131,140,143). However, during that time Sacco did not provide the degree of cooperation and assistance that, in Agent Webb's judgment, Sacco was capable of causing Webb to consider requesting a formal prosecution be commenced against Sacco. (T.VIII.63). Sacco was further told that if he did not live up to his commitment to cooperate, his son would be indicted, although, as noted, the FBI at this point lacked sufficient evidence to bring such a case against the son. (T.VIII.63). In several conversations with Webb, Sacco demanded considerations for his son be added to the proposed agreement; however, this proposal was rejected by Webb who again advised Sacco that at the end of the investigation his son would have to meet with the FBI to negotiate his own deal. (T.VIII.85). Sacco also brought up this subject in several other conversations with other agents assigned to work with him during the debriefing period, but Sacco's assertions of immunity for his son based upon Sacco's cooperation were also rebutted by these agents. (T.VII.201,187,192). The problem of Sacco's lack of productivity as a cooperating witness continued into December, 1990, at which point, Special Agent Webb was transferred. (T.VIII.13,63).
Following an inadvertent discovery of Sacco's status as a cooperating witness, the FBI and Sacco decided to contact his son for the purpose of advising him of his father's cooperation and to suggest that he accept protective custody for himself and his family as well as consider cooperating with the Government. (T.I.7, T.III.150). At the direction of the FBI, Sacco telephoned his son eventually contacting him at about 10 p.m., the evening of February 8, 1990. (T.III.135). The purpose of the phone call was to request that his son meet him to discuss a matter of importance and, to preserve security for both of them, the FBI suggested meeting in a public place. (T.I.13). A parking lot on Transit Road near John T. Sacco's home was suggested. (T.I.13, T.III.137).
Sacco arrived in his vehicle at the parking lot at approximately 11 p.m. (T.I.12-13) which was selected for safety considerations and because it was in the vicinity of his home. (T.I.13,122). John C. Sacco arrived with Agent McLane in his own automobile. (T.I.117). Two other FBI agents, Thurston and Watts, arrived in an unmarked car. (T.I. 117). All agents were dressed in casual attire. (T.I.117). John C. Sacco approached his son's vehicle with Agent McLane and spoke to him through the driver's side window stating "I'm with them now," meaning that he was cooperating with the FBI. (T.I.124). He also told his son that the FBI had a solid case against both himself and his son (T.I.124) and that they should sit down with the FBI agents and hear them out. (T.I.15,124,127). After this preliminary conversation, Agents Thurston and Watts, McLane and John C. Sacco, formed a huddle near John T. Sacco's vehicle, so as to overhear the conversation. (T.I.124). No identification was shown to John T. Sacco at that time, the agents relying on John C. Sacco to persuade his son that they were in fact FBI agents. (T.I.123). After about a thirty minute conversation, someone suggested that they proceed to a nearby all-night restaurant. (T.I.122, 123,128). John T. Sacco then left his vehicle, was briefly patted down by Agent Thurston (T.IIB.24), and drove with Agents Thurston and Webb to the restaurant, arriving a few minutes later. (T.I.24). John C. Sacco followed in his vehicle with Agent McLane. (T.I.23). At no time while in the parking lot was John T. Sacco under arrest, in custody or not free to leave if he had chosen to. (T.I.19,21-22, T.III.3,9,11).
At the restaurant, which was uncrowded at that hour, the party sat at a table and, except for John T. Sacco, ordered coffee. (T.I.24, T.III.144). Agent Thurston showed Sacco his identification as an FBI agent (T.IIa.64), although Sacco by then accepted his father's statement that the others were FBI agents. (T.III.148, T.IV.4-5). John T. Sacco sat at one end of the table, Agent McLane on one side of the table and his father on the other. Agent Thurston sat at the opposite end of the table with Agent Webb between he and Agent McLane. (T.VIII.186). John C. Sacco then explained to his son that he had decided to cooperate with the FBI because they had a solid case against both him and his son as well as Richard Sacco. (T.I.26). Agent McLane told John T. Sacco that he believed the father's cooperation was expected to soon become public knowledge which disclosure could present a danger to him, and Sacco agreed with this opinion. (T.I.27). The agents then proposed that Sacco and his family join his father in protective custody to be provided by the Government and allow them to be relocated and become part of the Government's witness security program. (T.I.27-28). Sacco indicated that this protection would be of interest but that he needed more information, and would make a decision following his return from a previously scheduled business trip. (T.I.28-29).
Agent McLane then discussed the fact that Sacco was the target of an FBI investigation concerning marijuana trafficking, based on the stop of the motor home in New Mexico, driven by co-defendants Wolffe and Orcutt, in 1987. (T.I.31-32, T.IIa.73). The conversation, which was not in question and answer form, consisted of a narrative by Agent McLane to which Sacco responded. (T.I.38). In response to McLane's recounting of Sacco's criminal activities, McLane testified that Sacco stated that he knew he had been under investigation and acknowledged the motor home and the items seized were his. (T.I.34). According to McLane, Sacco also volunteered the names of co-defendants Wolffe and Orcutt without McLane first mentioning them in his narrative as to the 1987 stop of the motor home. (T.I.35). Sacco also said that he was surprised that the Government returned to him the $ 125 thousand which had been seized from the motor home, as it was proceeds of a drug transaction. (T.I.35). This was the first time the fact that the money had been returned had come to McLane's attention. (T.I.35).
According to McLane, Sacco also stated that he knew the motor home stop would "come back to haunt" him (T.I.36), and that the money was intended to be delivered to Vincent Gonzalez who was John T. Sacco's supplier of marijuana in the drug trafficking operation. (T.I.37,39). Sacco described other contacts with the Gonzalez marijuana ring and how he was introduced to Gonzalez. (T.I.39-40). Sacco acknowledged that his firewood business was used to mask the transportation of the illegal marijuana. (T.I.41-42). The purpose of this part of the conversation was to obtain Sacco's cooperation with the Government. (T.I.46-48). Sacco, who was free to leave the meeting at any time (T.I.31), acknowledged McLane's description of his criminal activity (T.III.17).
Obtaining John T. Sacco's cooperation was a secondary purpose of the discussion, (T.I.48), the primary purpose being to obtain his cooperation in accepting protection, as the FBI believed that Sacco, being his father's drug supplier, was in danger as a result of a probable disclosure that the father was a cooperating witness. (T.I.50-51). The conversation lasted until approximately 1:00-1:30 a.m. the next day. (T.I.53). Sacco agreed to consider the offer of relocation and protection and, as it was expected that the knowledge of his father's cooperation would become public within four to five days (T.I.55), that Sacco should communicate his decision to the FBI as soon as possible. (T.I.55-56). The FBI indicated that it also intended to contact Richard S. Sacco, to alert him to the potential danger and offer similar protection and possible relocation. (T.I.55). It was agreed that the FBI would meet with John T. Sacco at his home on February 17, 1990 to receive his decision. (T.I.57-58). Following the meeting at the restaurant, Sacco was driven back to his car at the parking lot, and John C. Sacco was then driven to a secure location by Agents Thurston and Watts. (T.I.53-54).
At no time during the conversation in the parking lot or at the restaurant did John C. Sacco attempt to interrupt Agent McLane as he explained the FBI's investigation against his son, nor did he loudly state that McLane could not talk about possible cooperation with the FBI because his son was covered by his deal with the FBI and, therefore, did not have to cooperate. (T.IX.8). Further, Agent McLane never asked John T. Sacco to inform his uncle, Richard Sacco, that he had nothing to worry about as he also would not be prosecuted because of his brother's cooperation with the FBI. (T.IX.9). While during the meeting at the restaurant John C. Sacco was agitated because he had been taken off the street based on the discovery of his status as a cooperating witness, the only interruption in Agent McLane's conversation with his son was his objection to any FBI effort to prevent his son from taking his scheduled business trip to France. (T.IX.292,293).
At a subsequent meeting with John T. Sacco at his home, which lasted approximately one hour (T.I.58), the witness security program, but not cooperation, was discussed by the FBI. (T.I.59). Sacco's effort to raise the question of possible immunity based on his father's cooperation was rejected by the agents. (T.IX.36-38). At the meeting at John T. Sacco's residence on February 10, there were, however, no promises made to Sacco or to any other persons regarding the criminal investigation of him. (T.I.270). About a week later, Sacco and his sister visited their father at a Rochester hospital. (T.III.176). While they were together, John C. Sacco told his son that the deal with the FBI which also covered him was contained in a document he had signed with the FBI, and that Agent McLane should provide a copy of it for him. (T.III.181). On other occasions following the initial contact with Sacco on February 8, 1990, Sacco mentioned possible plea terms of five years and forfeiture of certain real and personal property. (T.I.239). Agent McLane told Sacco he would transmit that proposal to the U.S. Attorney. (T.I.239). In none of the FBI's discussions with John T. Sacco was he given any Miranda warnings. (T.I.83).
In March, 1990, Matthew J. Murphy, III, Esq. was retained by John C. Sacco to represent him in negotiating a formal plea bargain agreement based upon his cooperation with the Government. (T.V.8). Prior to meeting with Sacco, Murphy was told by Agent Thurston that there was no way to know what may have been promised to Sacco by Agent Webb to persuade Sacco to cooperate. (T.V.10). Sacco stated to Murphy that the FBI told him that, when his house was searched in July, 1989, if he cooperated, the investigation against his son would stop immediately, and that his son and brother would not be prosecuted. (T.V.14). However, Murphy acknowledged that there were no written agreements to this effect. (T.V.15). Murphy's outline of negotiating points on the proposed plea agreement for Sacco contains a notation that this request had been rejected. See Government Exhibit 13. When Murphy told the FBI that Sacco believed his agreement included immunity for his son and his brother ...