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UNITED STATES v. HEATLEY

February 13, 1998

UNITED STATES OF AMERICA, against CLARENCE HEATLEY, et al., (JOHN PORTER), Defendants.


The opinion of the court was delivered by: SOTOMAYOR

 SONIA SOTOMAYOR, U.S.D.J.

 Defendant John Porter moves this Court to suppress statements he made to agents of the New York County District Attorney's office prior to his indictment and arrest on the charges in this case. Porter claims that these statements were made only after the agents promised him that they would not use his statements against him and one agent promised he would act as his attorney to protect his legal interests. Porter claims that his inculpatory statements were thereby elicited in violation of the Fifth Amendment. The United States denies that either of these promises were made. An evidentiary hearing was held on November 10 and 12, 1997, to resolve these disputed issues of fact. As discussed below, this Court finds the defendant's story not to be credible and denies Porter's motion to suppress.

 BACKGROUND

 The following constitute my findings of fact. The defendant, John Porter, is under indictment in this case on charges of conspiring to and engaging in a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c) and (d), conspiring to and committing violent crimes in aid of a racketeering enterprise in violation of 18 U.S.C. § 1959(a)(1) and (5), and firearms and accessory charges in association with the racketeering charges. The alleged racketeering enterprise is known as the "Preacher's Crew," and is asserted by the government to have been involved in numerous murders, assaults, robberies, extortions, and narcotics trafficking in and around New York City and elsewhere.

 Dan Rather is an Assistant District Attorney and chief of the firearms trafficking unit of the New York County District Attorney's office. In the summer of 1996, Rather was involved in an investigation into the activities of the Preacher's Crew, and in August of that year his attention began to focus on Porter. Rather thought that Porter had information regarding the Preacher Crew which might be useful to his investigation, and further thought that Porter might be willing to meet and talk to him regarding this information.

 To accomplish this meeting, Rather turned to John Capers. Capers is a former NYPD detective and now is employed as an investigator by the New York County District Attorney. Capers had previous contact with Porter and some of his family several years earlier while investigating the murder of Darnell Porter, John Porter's nephew. Capers was also familiar with some of Porter's alleged criminal activities. After attempting unsuccessfully to locate Porter on his own, Capers talked with Porter's niece and asked her to convince Porter to talk him. She did so, and on August 29, 1996, Capers drove to the vicinity of 130th Street and Seventh Avenue in Manhattan, where Porter met him at approximately 8:30 p.m.

 Capers and Porter talked first in Capers's car. Porter inquired as to Capers's position, and Capers informed him that he was investigator for the District Attorney's office. After a brief conversation, Capers began driving downtown towards the District Attorney's office, hoping that by the time they got in the vicinity Porter would have decided to talk with Rather. During the drive, Capers and Porter discussed the fact that Clarence Heatley, one of the co-defendants in this case, had recently been arrested and that there were rumors on the street that Heatley might be cooperating with the government. Capers told Porter that, based on past experience, the first persons arrested in a case involving multiple defendants are often given the chance to cooperate, but did not confirm or deny whether Heatley was in fact doing so. Capers also told Porter that he was likely to be indicted in the future, and told him that in his experience, persons who cooperate with the government get some benefit in the form of a reduced sentence.

 Capers and Porter also discussed the safety of Porter and his family. Porter expressed concern that members of the Preacher's Crew might threaten him and his family. Capers told Porter that, if he were to become a cooperating witness for the government, the District Attorney's office could take steps to insure his family's safety, but Capers told Porter that such terms would have to be worked out with Rather and the District Attorney's office.

 Upon reaching the vicinity of the D.A.'s office, Porter agreed to meet with Rather, at least for the purposes of finding out Rather's intention. Capers called Rather on his mobile phone and suggested they meet at the Chelsea Piers, an entertainment/sports complex on the West Side Highway near 23rd Street in Manhattan. Capers then drove with Porter to the Piers, and the two of them were met by Rather and Assistant District Attorney Gregg Sofer.

 Rather also discussed his belief that Porter was in danger from members of the Preacher's Crew because the fact that Porter had not yet been arrested might lead the Crew members to believe he was cooperating with the authorities. This was particularly so, Rather said, in light of the fact that Porter had already been shot once and left to die by members of the Crew at an earlier time because they viewed Porter as a potential threat. Porter confirmed that he was concerned about his safety and that of his family, particularly his son. Rather also told him that even if he didn't get killed on the street, he was very likely to be arrested at some point. Porter agreed with Rather's assessment of the situation. Rather asked Porter if he was willing to come to the D.A.'s office to talk further, and Porter said he was, but no specific date for a second meeting was set. Porter was told to contact Capers if he wanted to talk further. The meeting broke up, and Capers drove Porter back to his neighborhood.

 The next day, Friday, August 30, Porter called Capers and indicated a willingness to talk. Capers picked him up that night and registered Porter in an assumed name at a local hotel, giving Porter the keys. Capers gave Porter money for meals for the weekend, then drove him back uptown to his neighborhood. Porter was free to come and go as he pleased, and no other law enforcement officers knew of his whereabouts. Capers and Porter had no further contact that weekend.

 On Tuesday, September 3, Capers picked up Porter at the hotel and drove him to the D.A.'s office downtown to meet Rather. They first went to Capers's office, which is one floor below Rather's, then to Rather's office. While in Capers's office that day, Porter admitted seeing certificates on the wall commissioning Capers as an NYPD detective and as an investigator for the New York County ...


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