agents interrogated him after he requested an attorney. Because the Court credits Special Agent Garfinkel's testimony that Mr. Berkovich did not in fact request an attorney, this first argument must fail.
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), requires that an individual who is in custody must be advised of certain rights, including the right to have an attorney present during questioning, before he is interrogated by government agents. Law enforcement officers must immediately cease questioning a suspect who has clearly asserted his right to have counsel present during custodial interrogation. Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350, 2354-55 (1994); Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981); Diaz v. Senkowski, 76 F.3d 61, 64 (2d Cir. 1996). To cut off questioning after being advised of his rights, the defendant must "articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis, 114 S. Ct. at 2355; see also Diaz, 76 F.3d at 64-65. An ambiguous or equivocal reference to an attorney that would cause a reasonable officer only to suspect that the defendant might be invoking the right to counsel does not require the cessation of questioning. Davis, 114 S. Ct. at 2355; Diaz, 76 F.3d at 64. "If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." Davis, 114 S. Ct. at 2356.
Here, the Court credits the testimony of Special Agent Garfinkel that Mr. Berkovich asked only about the quality of appointed lawyers and then signed the waiver-of-rights form at 3:20 p.m., before the FBI agents began questioning him. Mr. Berkovich's inquiry concerning the quality of appointed counsel was not an unambiguous request for counsel that a reasonable police officer would understand as such, as Davis requires. Indeed, Mr. Berkovich's inquiry is much more ambiguous than the statement made by the defendant in Davis, "Maybe I should talk to a lawyer," which was held to be too ambiguous to require the cessation of questioning. Davis, 114 S. Ct. at 2353. Accordingly, the defendant's motion to suppress his confession on the grounds that the FBI agents questioned him after he requested counsel is denied.
Mr. Berkovich also moves to suppress statements he made to FBI agents on November 29 and 30, 1995 on the grounds that these statements were not made voluntarily.
To assess whether an individual voluntarily made statements to the Government, the Court must consider the totality of the circumstances. Diaz, 76 F.3d at 65; United States v. Ruggles, 70 F.3d 262, 264-65 (2d Cir. 1995); cert. denied, 134 L. Ed. 2d 229, 116 S. Ct. 1284 (1996); United States v. Bye, 919 F.2d 6, 9 (2d Cir. 1990); United States v. Alvarado, 882 F.2d 645, 649 (2d Cir. 1989), cert. denied, 493 U.S. 1071, 107 L. Ed. 2d 1021, 110 S. Ct. 1114 (1990). A number of factors are relevant in this inquiry, including the characteristics of the accused, the conditions of interrogation, and the conduct of law enforcement officials. Diaz, 76 F.3d at 65; Ruggles, 70 F.3d at 265; United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973)).
Here, Mr. Berkovich claims that the conduct of the FBI agents overwhelmed his free will. Mr. Berkovich claims that the agents said they would "help him and even possibly release him" if he cooperated, but would take him to jail if he did not, that the agents gave him only a very short time to decide whether he wished to cooperate, and the agents confronted him with the evidence against him before reading him his rights.
The Government has proved by a preponderance of the evidence that Mr. Berkovich knowingly and voluntarily waived his Miranda rights and freely made statements to the FBI agents. See Colorado v. Connelly, 479 U.S. 157, 167-69, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986) (government must prove waiver of Miranda rights by preponderance of the evidence); Anderson, 929 F.2d at 99 (same). There is no evidence that Mr. Berkovich is of below-average intelligence. During the interrogation he was offered food and access to the bathroom. The physical conditions of the interrogation--the hotel room and the FBI office--are not such as to overbear the defendant's will. There are no allegations of any physical mistreatment. See Diaz, 76 F.3d at 65 (such circumstances indicate that confession was voluntarily given).
Furthermore, there is no evidence that law enforcement officials acted inappropriately during the interrogation of the defendant. As the Court of Appeals for the Second Circuit has stated repeatedly, "the mere mention of the possible sentence facing a defendant and the benefits to be derived from cooperation [does not] convert an otherwise proper encounter between the police and the accused into a coercive and overbearing experience." Bye, 919 F.2d at 9-10. Law enforcement agents may tell the defendant about the evidence against him as well as the reasons why he should cooperate. Ruggles, 70 F.3d at 265; Bye, 919 F.2d at 9-10; United States v. Major, 912 F. Supp. 90, 96-97 (S.D.N.Y. 1996) (Cedarbaum, J.). "'[A] confession is not involuntary merely because the suspect was promised leniency if he cooperated with law enforcement officials.'" Bye, 919 F.2d at 9 (quoting United States v. Guarno, 819 F.2d 28 (2d Cir. 1987)); see also Ruggles, 70 F.3d at 265 (quoting Bye); Alvarado, 882 F.2d at 650.
There is no evidence that the FBI agents made any misstatements to Mr. Berkovich "based on unfulfillable or other improper promises [that] might perhaps overbear a defendant's will." Ruggles, 70 F.3d at 265. This is not a case like Anderson where agents repeatedly made false and misleading statements to the defendant. Anderson, 929 F.2d at 100. Although the FBI agent's statements to Berkovich concerning the evidence the Government had against him and the benefits of cooperation "may have presented [the defendant] with a difficult and unpleasant decision," they did not render Mr. Berkovich's confession involuntary. See Major, 912 F. Supp. at 95 (finding not coercive statements by law enforcement agent to suspect informing him of evidence against him and stating that it would be in his best interest to cooperate); see also Ruggles, 70 F.3d at 264-65.
After considering the totality of the circumstances, the Court finds that the Government has demonstrated that Mr. Berkovich's statements to the FBI on November 29 and 30, 1995 were made knowingly and voluntarily and were not the product of coercion. Moreover, the Court finds that the defendant knowingly and voluntarily waived his Miranda rights.
Finally, the defendant argues that statements that he made on November 30, 1995 should be suppressed under 18 U.S.C. § 3501(c) because they were made more than six hours after he was arrested.
It is uncontested that when the FBI agents questioned Mr. Berkovich on November 30, 1995, more than six hours had elapsed since he had been arrested, and the defendant had not yet appeared before a magistrate or any judicial official. Rule 5(a) of the Federal Rules of Criminal Procedure ("F.R.C.P.") provides that
. . . an officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate judge or, if a federal magistrate judge is not reasonably available, before a state or local judicial officer authorized by 18 U.S.C. § 3041.
The parties agree that under 18 U.S.C. § 3501(c), it is within the district court's discretion to suppress a confession if that confession is made during interrogation conducted more than six hours after the defendant was arrested, and the delay in bringing the defendant before a magistrate or other judicial officer beyond this six-hour period is unreasonable under the circumstances. See United States v. Fullwood, 86 F.3d 27, 1996 WL 312022, at *4 (2d Cir. 1996); United States v. Perez, 733 F.2d 1026, 1030 (2d Cir. 1984); see also United States v. Colon, 835 F.2d 27, 30 (2d Cir.), cert. denied, 485 U.S. 980, 99 L. Ed. 2d 490, 108 S. Ct. 1279 (1988).
Here, the Court declines to suppress statements made on November 30, 1995 because the Government has proved by a preponderance of the evidence that the defendant knowingly and voluntarily waived his right to a prompt presentment. See Connelly, 479 U.S. at 168-69 (discussing government's burden of proof in suppression motions); see also Gov't Exh. 2 (Waiver of Arraignment). Special Agent Garfinkel testified that he read the Waiver of Arraignment form to Mr. Berkovich and that Mr. Berkovich read the form before signing it. This occurred after Mr. Berkovich had already been informed of his Miranda rights and had knowingly and voluntarily waived them, and after he had attempted to cooperate with the Government by providing information for six hours. A defendant may waive his right to be presented promptly. See United States v. Markoneti, 1993 U.S. Dist. LEXIS 7030, No. CR 92-0169, 1993 WL 180355, at *2 (E.D.N.Y. May 25, 1993), aff'd, 52 F.3d 312 (1995); United States v. Pham, 815 F. Supp. 1325, 1331 (N.D. Cal. 1993). Like the defendant in Markoneti, Mr. Berkovich agreed to waive his right to a speedy presentment in an attempt to obtain the benefits of cooperating with the Government. See Markoneti, 1993 U.S. Dist. LEXIS 7030, 1993 WL 180355, at *2.
The defendant's argument that the waiver form was deceptive is without merit. The defendant first claims that the waiver form contains a "definite implication that cooperation is out if the defendant goes to court to have a lawyer appointed." Def.'s Supp. Mem. at 3. Although Special Agent Garfinkel testified at trial that cooperation prior to arraignment is often more helpful, nothing in the arraignment waiver form indicates that the defendant would not be able to cooperate with the Government after he appears before a magistrate judge. The defendant also claims that the waiver form falsely implies that there are no charges against him even though a complaint had already been filed against him. The defendant points to the fact that the waiver form states that the undersigned understands "that charges may be brought against [him] in the future." This statement does not, however, suggest that no charges are currently pending against the undersigned. Indeed, the form suggests just the opposite because it states ". . . [the undersigned] has a right to be brought before a court as soon as possible so that the charges can be explained to [him] . . . ."
Given the totality of the circumstances, including the fact that the defendant's confession on November 30, 1995 was voluntary, that the agent orally explained to the defendant that he had a right to a prompt presentment, that the defendant signed a written waiver of this right, and that there were no circumstances indicating that this waiver was coerced, the Court finds that the defendant knowingly and voluntarily waived his right to a prompt presentment.
In addition, the parties agree that the question of whether to suppress a statement given after a delay of more than six hours between arrest and presentment is in the discretion of the Court. See United States v. Perez, 733 F.2d at 1035. In this case, as in Markoneti, the delay was not unreasonable. The defendant was cooperating with the Government, and the Government attempted to determine whether there were any potential codefendants, a possibility that was eliminated only after the questioning on November 30, 1995. As Judge Weinstein found in Markoneti, "the agents were properly concerned that a public record of defendant's arrest would inhibit his ability to cooperate effectively. Voluntary delays in arraignment are not unusual or undesirable where a person who is believed to be engaged in criminal activity volunteers to assist the government in catching other criminals." 1993 WL 180355, at *2. Accordingly, the Court declines to exercise its discretion to suppress the defendant's statements made on November 30, 1995.
For the foregoing reasons, the defendant's motion to suppress is DENIED.
Dated: New York, New York
July 16, 1996
John G. Koeltl
United States District Judge