The opinion of the court was delivered by: CEDARBAUM
Thomas Major moves to suppress statements he made following his arrest and evidence obtained in a search of his office on the ground that the statements and his consent to the search were not voluntary. I held a two-day evidentiary hearing. After considering the evidence presented and evaluating the credibility of the witnesses, I find by a preponderance of the credible evidence that the statements were voluntary, and that the search was reasonable under the Fourth Amendment. Accordingly, the motion is denied.
Major is a forty-seven-year-old businessman. (Tr. 147.) He has lived in the United States for thirty-nine years and has been a citizen for approximately thirty-four years. (Tr. 147-48.) He completed four years of college, and since approximately 1970 has been in the printing business. (Tr. 179.) Major speaks fluent, unaccented English.
Pursuant to an arrest warrant, on June 24, 1994, United States Customs agents arrested Major for money laundering. The arrest took place at an apartment in New York City which Major used as his business office. He and his family lived elsewhere. It is undisputed that at least one agent had his gun drawn and pointed at Major when the agents entered the office. (Tr. 26; 158-59.) One of the agents advised Major of his Miranda rights and told him that cooperation would be to his benefit. Major described his activities in the money laundering scheme, and signed a consent to search form. Major later signed a Miranda waiver and a written statement.
Two versions of the details of the circumstances surrounding Major's statements and his consent to the search emerged from the testimony at the hearing. Special Agent Matthew Raffa testified that he read Major his Miranda rights from a standard card, and that Major answered that he understood each right. (Tr. 28-30.) Raffa then told Major that he believed it was in Major's "best interest" to cooperate with the agents and told him some of the evidence the government had against him. (Tr. 30-31.) Raffa testified that he told Major "you are facing essentially the rest of your entire life in jail if you were to be sentenced on these [charges against you]." (Tr. 31.) Raffa suggested that Major tell him about his activities and said that if he did so, the agents would inform the prosecutor and the sentencing court of his cooperation. (Id.) According to Raffa, Major then described his participation in the money laundering scheme. (Tr. 32.) After Major told his story, Raffa asked for his permission to take certain documents and money out of the office. Raffa testified that Major showed him and Special Agent Deborah Morrisey the location of records, folders, and bags of money, and turned those items over to the agents. (Tr. 35.) Before turning over the money, however, Major asked to speak to Raffa and another agent in "the back room." There he asked the agents "can you give me part of the cash and put it down as a lesser amount?" (Tr. 49-50.) Shortly after Raffa refused his request, Major asked a second time if he could keep some of the money "because I have a lot of bills." Raffa again refused. (Tr. 50-51.)
Raffa testified that he then took Major to agency headquarters while Morrisey and another agent remained to continue searching. Before leaving the office, Major signed a consent to search form. (Tr. 37.) At headquarters, Major read and signed a waiver of rights form. (Tr. 40-44.) Major then gave a second statement, which Raffa wrote down and Major signed. (Tr. 44-48.)
Major's testimony painted a somewhat different picture. Major testified that before advising him of his Miranda rights, Raffa told him that "if you don't fully cooperate, you are looking at 30 to 40 years in jail," and that he had ten minutes to decide whether to cooperate. (Tr. 161.) According to Major, Raffa then read him his rights, but rather than asking after each right if Major understood, Raffa repeated that Major would spend thirty to forty years in jail if he did not cooperate. (Tr. 161, 164.) Raffa then advised Major of the information the government had about his participation and asked him questions. Major testified that although he remembered signing "something," he did not remember what it was and he did not remember signing his statement, the waiver of rights form, or the consent to search form. (Tr. 170.)
Major also testified about his personal background. He testified that in 1956, when he was approximately eight years old, he and his family fled from Hungary because of the anti-Semitism and violence that accompanied the uprising. (Tr. 151-52. ) When the family reached the Austrian border, a Russian soldier shot their guide a short distance from where Major was standing. (Tr. 153.) Major testified that this incident left him "petrified" for years. (Tr. 156.) Major also testified that his father, a Holocaust survivor, (Tr. 149-50), impressed upon him that if he were ever in a "confrontational situation, always cooperate to the fullest because you don't know. The most important thing is the preservation of life." (Tr. 156-57.)
Major testified that when the agents entered his office with guns he went "totally blank," (Tr. 161), and that he feared for his life, (Tr. 165). The only thing in his mind, Major testified, was his memory of the shooting at the Austrian border. (Tr. 159.)
Dr. Gershon Goldin, a psychiatrist, also testified at the hearing. He testified that he had treated Major in October of 1994 for psychological and emotional difficulties arising from the June 24 arrest. (Tr. 104.) Dr. Goldin diagnosed Major as suffering from posttraumatic stress disorder. (Id.) He stated that in his professional opinion, Major's experience as a child of witnessing the shooting "made him psychologically more vulnerable to emotional trauma," (Tr. 110), and "more likely to be submissive and comply with a demand [by law enforcement officers]," (Tr. 114). Dr. Goldin testified that, on the basis of what Major reported to him, Major was "emotionally frozen" at the time of his arrest when he felt that his life was in danger. (Tr. 113.)
Major also presented the testimony of Fe Geslani, a former employee who used the office as her residence. Geslani was present when the agents entered the office. She testified that when she entered the main room shortly after the agents had ...