The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
Amended Decision and Order
Fardin Sharifipour has been indicted for cashing stolen checks, see 18 U.S.C. §§ 1708 and 2, and now moves to suppress three statements he made to police officers, and to strike surplusage from the indictment.*fn2 See Dkt. No. 16 ("Sharifipour Mot."); see also FED. R. CRIM. P. 12(b)(3)(C) & 7(d). For the reasons that follow, his motion is denied in its entirety.
The essential facts are based on the court's evaluation of the following: the applicable burden of production and proof; the testimony of Rotterdam Police Detective Donald Scavia, Postal Inspector Raymond J. Smith, Secret Service Agent Jon Lombardoni, the Manager of Topps Diner, Maria A. Espisito, and the defendant's wife, Sosan Sharifipour; Fardin Sharifipour's Declaration; the suppression hearing exhibits; the parties' submissions; and the resolution of credibility issues. See FED. R. CRIM. P. 12(d); see also United States v. Miller, 382 F. Supp. 2d 350, 361-363 (N.D.N.Y. 2005) (burden of production and proof).
Thirty-four years old, Sharifipour was born in Afghanistan, his native language is Farsi, and he spoke no English when he entered the United States in 1984. Over the next twenty years, he worked as a dishwasher and cook. Since 1993, he committed crimes in his spare time as is reflected by his criminal record which follows: (1) a 1993 theft conviction; (2) a 1995 theft conviction; (3) an August 21, 2000, arrest for, inter alia, possession of a forged instrument committed on May 23, 2000; (4) a December 13, 2000, arrest for, inter alia, five separate charges of possessing forged instruments on November 9, 15, 21, 22, and 27, 2000; and (5) a January 8, 2004, arrest for, inter alia, possession of a forged instrument committed on January 6, 2003.*fn3 Apparently, most of the 2000 arrests were consolidated for disposition, and after Sharifipour plead guilty to two counts of grand larceny in 2001, he was sentenced to consecutive periods of local imprisonment and probation. While on probation, he committed the 2004 offense, he subsequently pled guilty to possession of a forged instrument and grand larceny, and he was sentenced to three and one-half to seven years in state prison. See Gov't Ex. 2; see also Sharifipour MOL at 1-2, Dkt. No. 16. The current indictment charges mail thefts that occurred in 2003 before his January 2004 arrest.
In August 2003, Scavia and Smith were investigating the theft of checks from the mail, and the negotiation of those checks in the Rotterdam, New York area. They obtained copies of the stolen checks and learned that they had been processed through Sosan Sharifipour's account at Trustco Bank. Because of her husband's prior criminal record, he was a suspect. Both Scavia and Smith already knew Sharifipour, and wanted to talk to him.
At the time, Scavia was a thirteen year police veteran, and knew Sharifipour as a cook at Topps Diner. Scavia frequently ate there, and spoke with Sharifipour on numerous occasions. During those conversations, they always communicated in English. Sharifipour's responses were always appropriate, he never asked Scavia to repeat himself, and he never suggested by conversation or behavior that he lacked comprehension and communication skills. Scavia also knew about Sharifipour's prior criminal record.
So too, Smith knew Sharifipour. They had previously spoken on at least eight occasions, and Smith had actually participated in two of Sharifipour's prior check theft arrests. During those arrests, Smith was present when Sharifipour was advised of his Miranda rights, waived them, and was questioned. During every contact, Sharifipour spoke English, and Smith detected no difficulty in Sharifipour's comprehension or communication skills.
On August 27, Scavia called Sharifipour's residence. He spoke with Sharifipour's wife, Sosan, and asked that she have her husband contact him. Later, Sharifipour called, and he agreed to meet Scavia at the Rotterdam Police Station the following evening.
On August 28, Sharifipour voluntarily appeared at the station in the company of his two small children. He, Scavia and Smith went to a well-lit, combination office and conference room on the second floor of the station used for interviews and meetings. The conference portion of the room was approximately twelve feet square, and contained book shelves and a large conference table. The three men sat around the conference table. The children accompanied them to the second floor and remained seated outside during the thirty to forty-five minutes that their father was interviewed.
At the outset and without first administering Miranda warnings, Scavia told Sharifipour that he was a suspect in a check theft and cashing investigation, and that he wanted to interview him. Sharifipour consented to the interview, and then made oral statements. See Gov't Ex. 1 ("First Statement"). After the oral conversation, Scavia used a preprinted Miranda card to fully advise Sharifipour of his rights, and asked whether Sharifipour would waive his rights and provide a written statement. Sharifipour said that he understood his rights, consented to waive them, and agreed to make a written statement. Scavia then used a preprinted statement form to record Sharifipour's statement.
As Scavia asked Sharifipour clarifying questions based on the earlier oral statement, Scavia wrote the statement. At the top, the form listed the Miranda warnings. Scavia filled in pedigree information supplied by Sharifipour, and Sharifipour initialed the advise of rights paragraph. Scavia then gave the statement to Sharifipour, and asked Sharifipour to read a portion out loud in order to satisfy himself that Sharifipour could read. Sharifipour complied. Sharifipour then read the entire statement during which he, Smith and Scavia discussed some of the words because both Smith and Sharifipour had questions about Scavia's handwriting. At the bottom of the statement, the form contained the following recitation: "I have read the above statement and swear that it is the truth to the best of my knowledge and recollection. I can read and I understand what I read." Sharifipour initialed the statement above the recitation, and signed the statement below it. In general, Sharifipour admitted that he had cashed the checks, but denied stealing them, instead stating that he bought them from an intermediary named "Wayne."
During the entirely cordial interview, Scavia and Smith made no threats or promises, they used no deception, and they employed no threatening language or techniques to induce Sharifipour to speak. Sharifipour was not subject to any restraints, including restrictions on his freedom of movement. The conversation was entirely in English, and Sharifipour neither expressed nor demonstrated any difficulty in his comprehension or communication skills. Although police intentions are not dispositive of a custodial inquiry, neither Smith nor Scavia intended to arrest Sharifipour at that time because the investigation was incomplete. Smith had not obtained Trustco surveillance tapes that would reveal who cashed the checks, and he had not obtained affidavits of forgery from the rightful owners of the checks. At the conclusion of the interview, Sharifipour and his children left of their own accord.
Almost three weeks later on September 16, Smith received a telephone call from Sosan Sharifipour who told him that Trustco had contacted her about two more stolen checks that had been processed through her account. She told Smith that she believed her husband had negotiated the checks. Smith told Sosan that he would stop by her apartment, and he did so. Fardin Sharifipour was not home, and Smith waited for him in the parking lot. When Sharifipour arrived, Smith approached him, told him about the additional checks, and asked if they could talk in his apartment. Sharifipour agreed, and invited Smith inside.
The two sat at Sharifipour's dining room table, and Shaifipour's wife was in and out of the room during the sixty to ninety minute cordial conversation. Smith showed Sharifipour copies of checks they had discussed at the Rotterdam Police Station, and asked about the new ones disclosed by Sosan Sharifipour. He did not first advise Sharifipour of his Miranda rights. Again, Sharifipour made incriminating oral admissions. Smith then told Sharifipour he wanted to reduce the admissions to a sworn statement, but wanted to administer the Miranda warnings first. Smith utilized a preprinted statement form to fully advise Sharifipour of his Miranda rights, following which Sharifipour waived them, and agreed to speak. See Gov't Ex. 3 ("Second Statement"). Sharifipour initialed the Miranda advice paragraph, and at Smith's request, wrote the date and time. Smith then wrote Sharifipour's statement, and Sharifipour signed it. Before signing it, Smith asked him to read the Miranda advice and several lines of the statement out loud which Sharifipour did. Smith made the request in order to verify that Sharifipour could read. The following recitation appeared at the bottom of the form above Sharifipour's signature: "I have read the foregoing statement made by me, consisting of "2" pages, and I have been given the opportunity to make corrections. All the facts contained herein are true to the best of my knowledge and belief." Again, Sharifipour admitted that he cashed the checks, but denied stealing them, instead claiming that he bought them from "Wayne".
During the interview, Smith made no threats or promises, he used no deception, and he employed no threatening language or techniques to induce Sharifipour to speak. Sharifipour was not subject to any restraints, including restrictions on his freedom of movement. The conversation was entirely in English, and Sharifipour neither expressed nor demonstrated any difficulty in his comprehension or communication skills. At the conclusion of the interview, Smith left.
After the September interview, Smith received additional information from Trustco about stolen and forged checks. He retrieved copies of the checks, he obtained forgery affidavits from the victims, and he interviewed Michael McKeon, the owner of a gas station where the checks had been cashed. He then contacted Sharifipour by telephone, and ...