The opinion of the court was delivered by: ROANNE L. MANN
The defendant, Menachem Mendel Minkowitz ("defendant" or "Minkowitz"), stands indicted for various offenses arising out of his alleged participation in a scheme to import into the United States automobiles stolen from Canadian rental agencies, in violation of 18 U.S.C. §§ 371, 1029, 2312, and 2313(a). Prior to trial, Minkowitz moved to suppress certain post-arrest statements made by him following his request for an attorney. In an order dated December 21, 1994, the Honorable Sterling Johnson, Jr., referred defendant's motion to the undersigned to conduct an evidentiary hearing and to report and recommend a disposition of defendant's suppression motion.
This Court held a hearing on February 7, 1995, at which the sole witness was Special Agent John Raffa of the United States Customs Service. The following findings of fact and conclusions of law are based on the proof presented at that hearing, together with the criminal complaint filed against Minkowitz on May 13, 1994. For the reasons that follow, it is the recommendation of this Court that defendant's motion to suppress his post-arrest statements be granted.
On May 13, 1994, a warrant for Minkowitz's arrest was issued in this District, based on a complaint sworn to by Customs Agent Anthony Wash. The complaint alleged, among other things, that an individual named Menachem Mendel Katz had been arrested on April 27, 1994, at the New York/Canadian border near Buffalo, as Katz had attempted to travel into the United States in a late model Jeep Cherokee rented by Katz using a fraudulent identification document and credit card in the name "Paul Schochet." (Complaint at PP 1-4.) Following his arrest, Katz told the agents that Minkowitz had provided him with the false identification and credit card, along with instructions on how to commit the crime. (Id. at PP 5-6.) At the agents' request, Katz placed a consensually monitored and recorded telephone call to Minkowitz, who made incriminating statements about the need to retrieve the false identification from the stolen vehicle. (Id. at P 7.)
Armed with the warrant, Agent Wash and five other Customs agents, including Raffa, set out to effectuate Minkowitz's arrest on June 15, 1994. At a briefing session early that morning, Agent Wash displayed a photograph of Minkowitz and informed his fellow agents that he had secured a warrant for Minkowitz's arrest for theft of automobiles. (H. 5-6, 74).
Minkowitz was arrested at approximately 1:00 p.m. in his Brooklyn neighborhood. (H. 6-7.) The arresting agents had no doubt that the person taken into custody was the "Minkowitz" named in the complaint. (See H. 74.)
Minkowitz was transported to Customs headquarters by Agent Wash and another agent; Agent Raffa returned to the office in a different car. (H. 9-10.) Shortly after his arrival at headquarters, Raffa was informed by Wash that Minkowitz had asked to speak with an attorney. (H. 10-11, 35-36.)
Agent Raffa then went to the "processing" area, where arrestees are fingerprinted, photographed and interviewed for "pedigree" information. (H. 11-12.) Upon learning that pedigree information had not yet been obtained from Minkowitz, Agent Raffa agreed to "take his personal history." (H. 13.) Raffa retrieved the necessary forms and sat across a desk from Minkowitz, who was not then in handcuffs. (H. 13-14.)
Agent Raffa commenced the interview by handing Minkowitz a "Statement of Rights" form (GX 3500-A-1),
asking him to read it to himself, and then reading the contents aloud to him. (H. 15-17, 42.) The form contained the following advice:
You have the right to remain silent.
Anything you say can be used against you in court, or other proceeding.
You have the right to consult an attorney before making any statement or answering any question, and you may have him present with you during questioning.
You may have an attorney appointed by the U.S. Commissioner or the Court to represent you if you cannot ...