The opinion of the court was delivered by: SCHEINDLIN
Defendant Jose Reyes ("Reyes") has moved to suppress evidence consisting of approximately $ 3,800 in cash and several pieces of jewelry. For the reasons set forth below, his motion is granted.
A. Discussions between Vargas and Reyes at Otisville
Prom January 17, 1995 until February 2, 1995, Raul Vargas ("Vargas") and Reyes were both inmates at the federal correctional facility at Otisville, New York. On several occasions while at Otisville, Reyes, Vargas, and "Nino" (Gilbert Cervantes, a defendant in a companion case) allegedly discussed the possibility of Vargas, Nino, and another person fleeing to the Dominican Republic if they were released on bail. Transcript of Hearing held on April 8 and 9, 1996 ("Tr.") at 14. According to Vargas, Reyes told Vargas that he knew Vargas was "the only one" who "could really hurt" Reyes (Tr. at 11), and Reyes indicated that he could provide Vargas with financial assistance in order to flee. If Vargas' testimony is credited, Reyes' statements evidence an awareness that his [Reyes'] associates might decide to cooperate with the Government and could Potentially provide the Government with inculpatory information about Reyes.
B. Receipt of money and jewelry by Vargas
On February 19, 1995, Vargas entered into a cooperation agreement with the Government. Between March and June 1995, Vargas taped a series of conversations with Reyes, as well as conversations with other people. According to the Government, some of these conversations concerned the plan for Reyes to give Vargas the financial means to flee, although the cryptic nature of the intelligible portions of the conversations makes such a reading somewhat strained. In any event, Vargas alleges that he was in fact given money and jewels by Reyes' stepfather, Jacobo Perez (a.k.a. "Pancho"). Tr. at 16, 24, 28. The transfers allegedly occurred on two separate occasions: on May 31, Perez gave Vargas 53,000, and on June 2, Perez gave him three pieces of jewelry. Tr. at 24, 27-28; Government Exhibit ("GX") 1 at 37; GX 4 at 3. According to Vargas, he turned over the jewelry to ATF agents immediately after receiving it from Perez. Tr. at 28.
Vargas also states that he received an additional $ 800 from Nino and Reyes' girlfriend. Tr. at 30. This transfer occurred sometime after Vargas was released from prison on bail. Id. Together, the $ 3,000 and the $ 800 comprise the $ 3,800 the Government seeks to introduce.
C. Vargas' contacts with Dimarys
At the hearing, Reyes submitted as evidence transcripts of two recorded conversations between Vargas and Dimarys, Reyes' girlfriend (see Tr. at 97). These conversations occurred on May 17 and May 19, 1995. See Defendant's Exhibit ("Def. Ex.") A, C. In these conversations, Vargas states that Reyes instructed him to speak with Dimarys. He also discusses the plan for Vargas and Nino to flee with Reyes' financial assistance. Def. Ex. A at 6, 7, 10; Def. Ex. C at 8, 9, 11, 14. Moreover, at several points in the conversations (which Vargas instructs Dimarys to report to Reyes), it appears that Vargas is almost threatening Reyes. For example, Vargas says "tell him that . . . if he's gonna help me as he said . . . that I'm ready, because I'm supposedly not gonna be waiting." Def. Ex. A at 15. He also tells Dimarys that "time is running short" (see Def. Ex. A at 13) and directs her to "tell him that I want to do that as soon as possible . . . because . . . he knows that I know what's what . . . what's going on with these people." Def. Ex. C at 9 (ellipses in original). At the hearing, Vargas acknowledged that he (Vargas) was trying to advance the plan to flee, in part because Nino wasn't pushing the plan forward. Tr. at 101-102.
II. Tapes as a Massiah Violation
Reyes earlier moved to suppress the taped conversations between Reyes and Vargas on the ground that the recordings were made in violation of his Sixth Amendment right to counsel. As stated above, Vargas began cooperating with the Government on February 19, 1995, before the taped conversations with Reyes occurred. Tr. at 161. Thus at the time he taped his conversations with Reyes and others, Vargas was an agent of the Government. Once a defendant has been indicted and his Sixth Amendment right to counsel has attached, incriminating statements deliberately elicited from the accused by law enforcement officers or their agents may not be admitted as evidence at the trial of the charges alleged in the indictment. See Maine v. Moulton, 474 U.S. 159, 180, 88 L. Ed. 2d 481, 106 S. Ct. 477 (1985); United States v. Henry, 447 U.S. 264, 274-75, 65 L. Ed. 2d 115, 100 S. Ct. 2183 (1980); Massiah v. United States, 377 U.S. 201, 205-206, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964); Jenkins v. Leonardo, 991 F.2d 1033, 1037 (2d Cir.), cert. denied, 510 U.S. 884, 126 L. Ed. 2d 186, 114 S. Ct. 231 (1993).
While the Government has not explicitly conceded that the recordings were made in violation of Massiah, it has said that it will not seek to offer them at trial during its case-in-chief, during its rebuttal case, or for impeachment purposes. See Letters of Thomas A. Arena, Assistant United States Attorney, dated March 26, 1996 and March 29, 1996. In view of the Government's position, the Court will assume ...