(2d Cir. 1982); see also Portash, 440 U.S. at 458-459. The underlying theory is that, where an involuntary statement has been coerced, a defendant's Fifth Amendment right against compulsory self-incrimination prohibits courts from applying the balancing test that was used in Harris and Hass. Brown, 699 F.2d at 590 (discussing Portash, 440 U.S. at 450). Thus, where a defendant has not been given Miranda warnings, involuntary statements may not be used for impeachment purposes.
Defendant Sandoval has cited two factors in support of his argument that his statements were involuntary: (1) that the police offered Sandoval immunity, and (2) that the interrogation constituted an unreasonable pre-arraignment delay. The Second Circuit has made clear that "'a confession is not involuntary merely because the suspect was promised leniency if he cooperated with law enforcement officials.'" United States v. Bye, 919 F.2d 6, 9 (2d Cir. 1990) (quoting United States v. Guarno, 819 F.2d 28 (2d Cir. 1987)); see also United States v. Ruggles, 70 F.3d 262, 265 (2d Cir. 1995); United States v. Tutino, 883 F.2d 1125 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1044, 110 S. Ct. 1139 (1990); United States v. Alvarado, 882 F.2d 645, 650 (2d Cir. 1989), cert. denied, 493 U.S. 1071, 107 L. Ed. 2d 1021, 110 S. Ct. 1114 (1990); United States v. Pomares, 499 F.2d 1220 (2d Cir.), cert. denied, 419 U.S. 1032, 42 L. Ed. 2d 307, 95 S. Ct. 514 (1974); United States v. Major, 912 F. Supp. 90, 95 (S.D.N.Y. 1996); United States v. Broccolo, 797 F. Supp. 1185, 1194 (S.D.N.Y. 1992). Cf. United States v. Anderson, 929 F.2d 96, 100-02 (2d Cir. 1991) (where government's statements are false and misleading by suggesting that suspect must choose between cooperation and the right to counsel, suspect's statements are involuntary). Here, nothing in the record suggests that police made false or misleading statements to Sandoval about his potential cooperation. (Tr. 144, 166-67.) As a result, the fact alone that he was asked to cooperate and was promised immunity if he chose to cooperate does not render his statements involuntary. (In addition, Sandoval, in fact never agreed to cooperate. (Tr. 144, 179.))
The Government also has established that the police interrogation of defendant Sandoval did not cause an unreasonable delay in reaching an arraignment; therefore, the duration of the interrogation did not render Sandoval's statements involuntary. The fact that a statement has been obtained during a period of less than six hours of pre-arraignment delay, 18 U.S.C. § 3501, weighs against a finding that the statement is involuntary. United States v. Toney, 579 F. Supp. 652, 656 (S.D.N.Y. 1984) (citing United States v. Rubio, 709 F.2d 146, 153 (2d Cir. 1983)), aff'd, 733 F.2d 1026 (2d Cir. 1984). Defendant Sandoval's statements were made within the requisite six hour period because he was picked up by the police at 1:45 p.m. and brought to Central Booking at 7:00 p.m. (Tr. 182-83.) Moreover, the five and one quarter hour period would not be considered an unreasonable delay under New York law. See People v. Lockwood, 44 N.Y.2d 769, 770, 406 N.Y.S.2d 37, 377 N.E.2d 481 (1978), rev'g, 55 A.D.2d 17, 21, 389 N.Y.S.2d 583, 585 (N.Y. App. Div. 1976) (20 hour delay); People v. Cooper, 101 A.D.2d 1, 2, 475 N.Y.S.2d 660, 662 (N.Y. App. Div. 1984) (24 hour delay); People v. Jones, 87 A.D.2d 761, 761, 449 N.Y.S.2d 56, 58 (N.Y. App. Div. 1982) (20-hour delay); People v. Lindo, 85 A.D.2d 643, 645, 444 N.Y.S.2d 929, 931 (N.Y. App. Div. 1981) (at least a 20-hour delay); People v. Moore, 133 Misc. 2d 900, 509 N.Y.S.2d 259 (Sup. Ct. 1986); People v. Collazo, 98 Misc. 2d 58, 59-61, 412 N.Y.S.2d 943, 944-45 (Sup. Ct. 1978) (22 hour delay). Accordingly, no presumption of unreasonableness is created with respect to the delay and defendant Sandoval's statements were not rendered involuntary by the duration of the interrogation. Because Sandoval's statements were voluntary, they are admissible for cross-examination purposes if defendant Sandoval testifies at trial.
For the reasons discussed above, it is respectfully recommended that defendants' motions to suppress be denied. Specifically, with regard to defendant Zahrey, the Government has proven by a preponderance of the evidence that the modification was not custodial and that Zahrey was not subjected to interrogation or its functional equivalent. Accordingly, Miranda warnings were not required, and the statements made by Zahrey should not be suppressed. I also found that because Zahrey's statements were not made in a custodial setting, he was not entitled to Fifth Amendment protection, and it is therefore inconsequential that certain statements were made after he requested counsel. And finally, the Government established by a preponderance of the evidence that Zahrey was not coerced into making statements merely by the existence of his employment relationship with the police.
With respect to defendant Mercado, the Government has established by a preponderance of the evidence that the setting in which he was interrogated in August, 1995 was not custodial and as a result, Miranda warnings were not required. Second, the Government has established by a preponderance of the evidence that the officers had probable cause on which to base Mercado's arrest in January, 1996 and Mercado's statements, therefore, are not suppressible as the tainted fruit of the poisonous tree (an unlawful arrest). Also, I have found that Mercado's January, 1996 statements were not elicited by causing a purposeful delay in reaching arraignment. Moreover, I have found that Mercado's statements constituted party admissions and/or statements against interest and thereby are not excludable by the hearsay rule. And finally, Mercado's physical responses to questions were not testimonial; they thereby do not warrant Fifth Amendment protection, and accordingly, could not have been obtained in violation of the Fifth Amendment.
With respect to defendant Eric Sandoval, I have found that his statements were not rendered involuntary by either the police's offer of immunity if Sandoval cooperated, or by the reasonable delay caused by the five and one quarter hour interrogation after his arrest. As a result, his statements are admissible on cross-examination.
Any objections to this Report and Recommendation must be filed with the Clerk of the Court, with a copy to the undersigned, within ten (10) days of receipt of this Report. Failure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).
Dated: Brooklyn, New York
April 1, 1997
JOAN M. AZRACK
UNITED STATES MAGISTRATE JUDGE