United States District Court, Northern District of New York
September 19, 2000
UNITED STATES OF AMERICA,
KARL DICKERSON, AND MARTIN D. FILKINS, DEFENDANTS.
The opinion of the court was delivered by: Hurd, District Judge.
MEMORANDUM-DECISION AND ORDER
The defendants are charged in a four count indictment with
Conspiracy to interfere with commerce by extortion and threats of
violence, Interference with commerce by extortion and threats of
violence, Attempt to interfere with commerce by extortion and
threats of violence, and Transfer of funds in interstate commerce
in aid of racketeering activity, all in violation of 18 U.S.C. § 1951
and 1952. The defendants have pled not guilty to all counts
of the indictment.
Defendants Martin D. Filkins ("Filkins") and Karl Dickerson
("Dickerson") moved to suppress all statements made to law
enforcement officials, contending that they were made in the
absence of a knowing and voluntary waiver of their Fifth
Amendment right against self-incrimination. In addition, Filkins
requested reconsideration of a previous denial of his motion,
pursuant to Fed.R.Crim.P. 15, to permit him to take the
deposition of Timothy Droulette ("Droulette"), the civilian
victim in this case. See Docket No. 75. A hearing was held on
September 6, 2000 in Utica, New York. Decision was reserved.
A. Defendants' Statements
If a statement is made which stems from custodial interrogation
without the presence of an attorney, the government bears a
"heavy burden . . . to demonstrate
that the defendant knowingly and intelligently waived his
privilege against self-incrimination and his right to retained or
appointed counsel." Miranda v. Arizona, 384 U.S. 436, 475, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966); see also Dickerson v. United
States, ___ U.S. ___, 120 S.Ct. 2326, 147 L.Ed.2d 405
(2000) (reaffirming Miranda). The United States Supreme Court
later clarified that "[w]henever the State bears the burden of
proof in a motion to suppress a statement that the defendant
claims was obtained in violation of our Miranda doctrine, the
State need prove waiver only by a preponderance of the evidence."
Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93
L.Ed.2d 473 (1986); Cf. United States v. Matlock, 415 U.S. 164,
178 n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (stating that "the
controlling burden of proof at suppression hearings should impose
no greater burden than proof by a preponderance of the
To determine whether a defendant knowingly and voluntarily
waived his Miranda rights, the totality of the circumstances
surrounding the interrogation must be considered. See Fare v.
Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197
(1979). This approach permits consideration of factors such as
"age, experience, education, background, and intelligence," as
well as "whether [the defendant] has the capacity to understand
the [Miranda] warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those rights."
The government concedes that the defendants were in custody
when they were questioned. However, the government contends that
both defendants knowingly and voluntarily waived their Fifth and
Sixth Amendment rights. Based upon the evidence presented at the
suppression hearing, as discussed below, the government has met
its burden of establishing that the defendants waived their
Before Dickerson was interviewed, FBI Special Agent Thomas
Stewart read a pre-printed Advice of Rights form aloud to
Dickerson. After that, Special Agent Stewart handed Dickerson the
form to read. Dickerson stated that he understood and signed the
Waiver of Rights portion of the form, which was witnessed by
Special Agent Stewart and Investigator Henry Piotrowski of the
New York State Police.
Prior to being arrested and handcuffed, FBI Agent Gregory
Hautau read the Advice of Rights form aloud to Filkins. Filkins
acknowledged that he understood. Filkins then read the Advice of
Rights form aloud and initialed each paragraph on the form. He
then read the Waiver of Rights portion and signed that. This was
witnessed by Agent Hautau and FBI Special Agent Daniel Matthews.
Both defendants were over the age of eighteen at the time of
their arrests and both men spoke English. There was no evidence
presented that either of them did not comprehend their rights or
that they suffered from any mental disability. Therefore, the
defendants' motion to suppress statements made to law enforcement
officers must be denied.
B. Deposition of Timothy Droulette
The Federal Rules of Criminal Procedure provide that
Whenever due to exceptional circumstances of the case
it is in the interest of justice that the testimony
of a prospective witness of a party be taken and
preserved for use at trial, the court may upon motion
of such party and notice to the parties order that
testimony of such witness be taken. . . .
Fed.R.Crim.P. 15(a). "It is well-settled that the `exceptional
circumstances' required to justify the deposition of a
prospective witness are present if that witness' testimony is
material to the case and if the witness is unavailable to appear
at trial." United States v. Johnpoll, 739 F.2d 702
, 708 (2d
Cir. 1984) (citations omitted).
The decision to grant or deny a motion to take a deposition rests
within the trial court's discretion. Id. at 707.
Filkins seeks reconsideration of an order denying his motion to
take the deposition of Timothy Droulette. Filkins claims that,
although Droulette will be available for trial, the Government
interfered with his attempt to interview Droulette. This
interference, Filkins contends, justifies his request to take
Filkins' Memorandum of Law accurately sets forth the evidence
which was presented at the hearing concerning the factual
circumstances surrounding the attempt by Wanda Rivera, an
investigator for the Office of the Federal Public Defender for
the Northern District of New York and Vermont, to conduct a
pretrial interview of Droulette. (See Filkins Mem. of Law at
1-2.) However, even though the events occurred as alleged by
Filkins, any interference or misunderstanding was rectified when
Assistant United States Attorney Steven Tyrrell called and
advised Droulette that it was solely his decision whether or not
he wanted to speak to Ms. Rivera. Mr. Tyrrell also advised
Filkins' attorney of the same. This was confirmed in a December
20, 1999 letter sent by Rivera to Droulette. (Def.'s Ex. 5.) This
letter was returned unclaimed, however, the defendant failed to
take any further steps to locate Droulette. The government is not
required to actually produce Droulette to be interviewed. The
government satisfactorily informed Droulette that it was his
decision whether he wished to speak to Ms. Rivera. Beyond that,
it was up to the defendant to locate Droulette and request an
interview. Accordingly, Filkins has failed to present any
evidence to warrant reconsideration of the previous order denying
his motion to take Droulette's deposition.
In accordance with the foregoing, it is
1. The defendants' motion to suppress statements made to law
enforcement officers is DENIED;
2. Defendant Martin Filkins' request to reconsider the prior
order denying his motion to compel the deposition of Timothy
Droulette is DENIED; and it is further
3. The trial for this matter will commence on October 10, 2000
at 9:30 a.m. in Utica, New York; and
4. The following pretrial submissions must be filed with the
Clerk's office in Utica, New York by Monday, October 2, 2000:
a) Proposed voir dire questions,
b) Requests to charge,
c) Memoranda of law,
d) Witness list, and
e) Exhibit list.
IT IS SO ORDERED.
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