defendant was advised that he was being asked simply pedigree, or background, questions. Yet, he elected to answer such inquiries in a non-responsive and incriminating manner. Defendant's motion to suppress the government's intended use of those statements at trial is denied.
2. Statement Two
Statement Two is the product of interrogation. The line of inquiry initiated by the officers about the radio tower in Manorville was unrelated to Inspector Farash's efforts to obtain pedigree information, and was reasonably likely to and, in fact, did elicit incriminatory statements from the defendant. See Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980).
The government acknowledges that the statement was the result of interrogation, but argues for its admissibility on the ground that "the defendant made a knowing and selective waiver of his right to counsel." (Oct. 2, 1997 Loretta E. Lynch Letter ("Lynch Letter") at 3-4.)
It is undisputed that defendant, after being given his Miranda warnings, asked to speak to his attorney. When told that his wife, not him, could make the telephone call, he instructed her to do so. At that point, any further inquiry had to be confined to eliciting basic identifying data (see United States v. Gotchis, 803 F.2d 74, 79 (2d Cir. 1986)) or, to the extent necessary, clarifying defendant's intent to invoke his right to counsel. See United States v. Gotay, 844 F.2d 971, 975 (2d Cir. 1988). Yet, immediately thereafter, as the officers exited defendant's home and entered Investigator Daly's car for the trip to Hicksville, defendant was advised to cooperate. As noted by the government, "such an unsolicited request for cooperation is considered the functional equivalent of interrogation." (Lynch Letter at 5 (citing United States v. Montana, 958 F.2d 516, 518 (2d Cir. 1992).) Granted, defendant was simultaneously advised again of his right not to speak absent counsel, and he made no incriminating statement then. It is also true that defendant said, as part of this colloquy, that "he would answer questions and he would stop if he felt uncomfortable with it." (Tr. at 50-52.)
A defendant may change his mind after invoking his right to counsel (see United States v. Gazzara, 587 F. Supp. 311, 324 (S.D.N.Y. 1984)), and may also selecting waive his Miranda rights, deciding to answer some questions but not others. See Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir. 1988); United States v. Thierman, 678 F.2d 1331, 1335 (9th Cir. 1982). But that is not what happened here.
The officers were not required to alter their plans on the morning of January 15, 1997 to permit the defendant to call his attorney from his home. Yet, once the request to contact counsel was made, defendant could not legitimately be interrogated, but he was. He was immediately advised to cooperate, the functional equivalent of interrogation. That improper comment by the officers is what prompted defendant's statement that he wanted to cooperate, and would answer certain questions. Since the subject of cooperation should not have been broached by the officers, it may not be used as the basis for the notion that defendant selectively waived his right to counsel after requesting permission to contact his attorney moments before.
In sum, the government has failed to establish that the defendant "knowingly and intelligently waived his privilege against self-incrimination and his right to counsel" as to Statement Two. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
C. Conclusion Regarding Statements
Defendant's motion to suppress Statement Two is granted, but is denied as to Statements One and Three.
For the reasons stated above, the branch of defendant's motion which seeks a dismissal of the indictment is denied; his motions for a bill of particulars and to suppress certain incriminating statements purportedly made on the date of his arrest are granted in part and denied in part.
Dated: Hauppauge, New York
January 9, 1998
DENIS R. HURLEY, U.S.D.J.