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UNITED STATES v. BERKOVICH

July 16, 1996

UNITED STATES OF AMERICA, against FELIX BERKOVICH, Defendant.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 The defendant Felix Berkovich has been indicted for an alleged violation of 18 U.S.C. § 1341. The indictment charges that Mr. Berkovich caused a fraudulent request to withdraw funds from a mutual fund account to be sent and delivered by United Parcel Service. Mr. Berkovich now moves pursuant to Fed. R. Crim. P. 12(b)(3) to suppress statements he made during questioning conducted by agents of the Federal Bureau of Investigation (FBI) on November 29 and 30, 1995. The Court conducted an evidentiary hearing on the defendant's motion on July 1, 1996.

 Mr. Berkovich presents three arguments in support of his motion to suppress. First, he contends the FBI agents interrogated him even though he requested to speak to a lawyer before signing a waiver of rights form. Second, the defendant argues that his confession was involuntary because it was the product of coercion. Third, the defendant claims that the statements he made on November 30, 1995 should be suppressed under 18 U.S.C. § 3501(c) because they were obtained more than six hours after he was arrested. For the reasons that follow, the defendant's motion to suppress is denied.

 I.

 After considering all of the evidence, including Mr. Berkovich's affidavit and Special Agent Steven Garfinkel's testimony at the suppression hearing, the Court makes the following findings of fact. On Wednesday, November 29, 1995, FBI agents arrested Mr. Berkovich in a room at the Vista Hotel in New York City. (Transcript of July 1, 1996 hearing ("Tr.") at 5, 7.) The FBI had been investigating Mr. Berkovich for a few months, and through its investigation knew that Mr. Berkovich and an FBI confidential informant ("CI") would be meeting in a room at the Vista Hotel that day. (Tr. at 6.) The FBI occupied an adjoining room and monitored and recorded the meeting between the CI and Mr. Berkovich. (Tr. at 6.) The FBI observed the CI give Mr. Berkovich certain funds and saw Mr. Berkovich complete some paperwork for another stock redemption. (Tr. at 7.) At this point, which was approximately 3 p.m., the FBI agents came through the door connecting the two adjoining hotel rooms and placed Mr. Berkovich under arrest. (Tr. at 7.) The FBI made it appear that the CI was also under arrest, and brought the CI into another room. (Tr. at 7.)

 After the arrest, Special Agents Garfinkel, Barry Braun, and William Belke remained in the room with Mr. Berkovich. (Tr. at 10.) The agents searched Mr. Berkovich and then placed him in handcuffs, with his hands behind his back. (Tr. 7-8.) At this point Special Agent Garfinkel went into the adjoining hotel room for about five minutes to instruct other FBI agents about what to do with the CI. (Tr. at 10.) No interrogation occurred while Special Agent Garfinkel was out of the room. When Special Agent Garfinkel returned to the room where the arrests were made, Mr. Berkovich was seated in a chair. (Tr. at 13.) Special Agent Garfinkel sat on the bed across from Mr. Berkovich. (Tr. at 13.) Special Agent Garfinkel then told Mr. Berkovich not to talk but to listen. (Tr. at 13.) Special Agent Garfinkel advised Mr. Berkovich of the evidence the FBI had against him, using "colorful language" to get his point across, and explained that Mr. Berkovich might want to cooperate with authorities. (Tr. at 13, 16.) Mr. Berkovich was then taken into the adjoining room where he was shown the monitoring equipment in there. (Tr. at 14.) Once Mr. Berkovich was brought back into the room where he was arrested, one of his hands was handcuffed to a chair. (Tr. at 14.)

 Special Agent Garfinkel then made additional comments concerning the benefits of cooperation. (Tr. at 14-15.) Special Agent Garfinkel said that this was the best time for Berkovich to cooperate, that once his arrest became public the benefit of his cooperation would be greatly reduced, and that if he cooperated he would be eligible for a 5K1 letter from the Government, which could mean a downward departure under the Sentencing Guidelines. (Tr. at 14-15, 33-34.) Special Agent Garfinkel did not tell Mr. Berkovich that he would have to plead guilty to every federal crime he spoke about to get a 5K1 letter. (Tr. at 34.) Special Agent Garfinkel also told Mr. Berkovich that if he did not wish to cooperate, he would be taken to jail and presented before a magistrate the following day. Special Agent Garfinkel testified that he did not believe that it would be possible to present Mr. Berkovich before a magistrate that day because Mr. Berkovich had been arrested late in the day. (Tr. at 49-50.) Special Agent Garfinkel told the defendant that if he cooperated, it would be possible to waive his appearance in front of a magistrate and permit him to go home that night. (Tr. at 15.) Special Agent Garfinkel made no threats or promises to Mr. Berkovich. (Tr. at 15-16.) In addition, it is not disputed that Mr. Berkovich knows English and that he understood what the FBI agents told him. (Tr. at 10.)

 After telling Mr. Berkovich about the benefits of cooperation, Special Agent Garfinkel read Mr. Berkovich his Miranda rights, which were detailed on FBI form FD-395 (Gov't Exh. 1), wrote in the place, date, and time (New York, 11/29/95, 3:15 p.m.) at the top of the form, and then gave Mr. Berkovich the form to read for himself. (Tr. at 16-17, 40-41.) Mr. Berkovich then inquired about the quality of court-appointed lawyers. (Tr. at 18, 45.) Special Agent Garfinkel told Mr. Berkovich that court-appointed lawyers were generally very good. (Tr. at 18.) Special Agent Garfinkel testified that Mr. Berkovich then stated, "I guess you guys got me," and signed the form around 3:20 p.m. (Tr. at 18-19.) Special Agent Garfinkel then signed the form as a witness, as did Special Agent Belke. (Tr. at 19.) Although there is a space on the form to indicate at what time the form was signed, this space was left blank. (Tr. at 41-42; Gov't Exh. 1.) Special Agent Garfinkel testified credibly that he did not realize that he had left this space blank until he was making copies of the form for this case. (Tr. at 42.) Special Agent Garfinkel testified that the interrogation of Mr. Berkovich commenced after Mr. Berkovich signed the form. (Tr. at 20.)

 The parties agree that the FBI agents questioned Mr. Berkovich for two or three hours at the hotel. (Tr. at 20-22.) While at the hotel, Mr. Berkovich was offered the opportunity to use the rest room and to have something to eat and drink. (Tr. at 20.) Although the video equipment used to monitor the conversation between the CI and Mr. Berkovich was available, the FBI agents made no effort to tape the interrogation. (Tr. at 52-53.) Around 5 or 6 p.m., the agents drove Mr. Berkovich to the FBI office at 26 Federal Plaza, where they continued to interrogate him until 9 p.m. (Tr. at 22.) During the interrogation, the agents would say such things as "beep; wrong answer; try again" when Mr. Berkovich said things that the agents believed were not true. (Tr. at 54-55.) Special Agent Garfinkel testified that during the interrogation at the FBI office Mr. Berkovich was permitted to use the rest room and was given soda and nuts. (Tr. at 22-23.) Mr. Berkovich was not handcuffed at the FBI office, and at no time during the questioning did he request an attorney. (Tr. at 25.)

 At 9 p.m. Mr. Berkovich signed a form waiving his right to be brought promptly before a court. (Tr. at 23-24; Gov't Exh. 2.) Special Agent Garfinkel read the form to Mr. Berkovich and then had him read it. (Tr. at 24.) The form provided as follows:

 
I understand that I have a right to be brought before a court as soon as possible so that the charges can be explained to me, so that I may consult with a lawyer, and so that bail may be set. I also know that if I cannot afford a lawyer, the court will appoint one at Government expense.
 
I would like to cooperate with the Government and would prefer that my arrest not be made known at the present time. I would therefore request that I not be arraigned now. I understand, however, that no other promises have been made to ...

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