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United States v. Ivanson

March 2, 2007

UNITED STATES OF AMERICA,
v.
ANDREW IVANSON, ET. AL., DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM & ORDER

Defendant Andrew Ivanson is charged with conspiracy to commit health care fraud (Count One), health care fraud (Court Two) and making false statements in relation to a health care matter (Count Three) in violation of 18 U.S.C. §§ 1349, 1347 and 1035, respectively. Before the court is Ivanson's motion to suppress several post-arrest statements due to alleged violations of his Fifth Amendment rights. For the reasons set forth below defendant's motion to suppress is denied.

CREDIBILITY FINDINGS

A hearing was held on November 3, 2006 and November 16, 2006 during which Special Agent Karen Walsh ("Walsh") testified for the government and Rimma Shpak ("Shpak"), a civil attorney, and Alexandra V. Tseitlin ("Tseitlin"), co-counsel for defendant testified for the defense. To the extent indicated below, the court finds the testimony of each of the witness to be credible.

FINDINGS OF FACT

On January 18, 2005, Walsh, along with Special Agents Ji Hwang, Brad Price, Peter Chung , Ryan Noon, and IRS Special Agent Tom Cribbins arrested Ivanson at his home located at 481 Bedford Avenue, Brooklyn, New York. Exhibit A to the Affirmation of Alexandra Tseitlin ("Tseitlin Aff."). The arrest was made pursuant to an arrest warrant issued by this court. Id. When arrested, Ivanson had already retained Tseitlin to assist him in responding to a subpoena issued by the U.S. Attorney's Office for the Eastern District of New York more than two years earlier. Transcript of November 16, 2006 Suppression Hearing ("Tr.2") 4. The subpoena was related to the investigation that lead to Ivanson's arrest. In August of 2003, Tseitlin had contacted Walsh as part of her representation of Ivanson in relation to the subpoena. Tseitlin Aff. ¶¶2, 4, 6; Tr.2 5, 8. Tseitlin also contacted Keir Dougall, an Assistant United States Attorney assigned to the investigation, and Special Agent Maryanne Wintonick. Id. at ¶¶3, 5; Transcript of the November 3, 2006 Suppression Hearing ("Tr.") 53; Tr.2 4, 6. On September 9, 2003, Tseitlin sent documents responsive to the subpoena to Agent Walsh along with a letter which identifying herself as Ivanson's attorney. Id. at ¶ 6; Defendant's Exhibit B; Tr.2 8-9. Agent Walsh was aware that Tseitlin was representing Ivanson for the purposes of responding to the subpoena. Tr. 53, 73.

Walsh was the senior agent supervising Ivanson's arrest on January 18, 2005. Tr. 19. Upon placing Ivanson under arrest, Walsh advised him that he should take money, his passport and the telephone numbers of his attorneys. Tr. 13-14. According to Walsh, the purpose of this advice was to enable him to expedite his arraignment by arranging to meet his attorneys at the Eastern District of New York courthouse prior to his arraignment. Tr. 17.Ivanson retrieved two business cards and gave them to Walsh. The cards had the telephone numbers of Tseitlin and Shpak. Tr. 16; Gov't Exhibit 2. Accordingto Ivanson, upon being placed under arrest in his apartment, he "told Walsh that [he] wanted to consult with [his] attorney." Affidavit of Andrew Ivanson ("Ivanson Aff.") ¶ 4. According to Walsh, Ivanson "did not request the opportunity to speak to an attorney while [they] were at his apartment." Declaration of Karen Walsh in Opposition to Defendant's Motion to Suppress ("Walsh Decl.") ¶2; Tr. 18. It is undisputed, however, thatIvanson told Walsh that Tseitlin was his attorney, and that Ivanson located Tseitlin's number and gave it to her. Ivanson Aff. ¶ 4. According to Ivanson, Walsh told him that she would contact Tseitlin when they arrived at the FBI's office. Id. Walsh denied telling Ivanson that she would contact Tseitlin. Tr. 18. Rather, Walsh testified that she merely told Ivanson that he would be permitted to make any calls he wished once they arrived at the FBI office. Id.

After the arrest, Walsh and Ivanson (among others) proceeded to the FBI office in Manhattan to process his arrest. Miranda rights were administered orally to Ivanson on the way to the FBI office. Walsh Decl. ¶ 3; Ivanson Aff. ¶ 5; Tr. 20-21. According to Walsh, Ivanson was asked whether he understood the rights and whether he was willing to waivethem. Ivanson answered orally that he both understood the rights and was willing to waive them. Walsh Decl.¶ 3; Tr. 22-25. According to Ivanson, neither Walsh nor any of the other agents asked whether he wanted to waive his rights. Ivanson Aff. ¶ 5.

At approximately 8:03 a.m., upon arriving at the FBI office in lower Manhattan, Ivanson was given a written form advising him of his Miranda rights. Walsh Decl. ¶ 4; Ivanson Aff. ¶ 6; Tr. 27-28. Ivanson signed the form, which indicated that he understood his rights and was willing to answer questions without an attorney present. Id. According to Walsh, Ivanson read the form carefully before signing it. Walsh Decl. ¶ 4. Ivanson claims that he did not read the form carefully and was not aware that he was waving his Miranda rights. Ivanson Aff. ¶ 6. At 8:15 a.m., Ivanson was given the opportunity to make phone calls, because, according to Walsh, they "had some time." Tr. 29; Walsh Decl. ¶ 5; Ivanson Aff. ¶ 8. Ivanson provided Walsh with the names and telephone numbers of three individuals and Walsh dialed. Tr. 30. Walsh wrote down this information as well as the time the calls were made. Id. She also noted that two of the calls were made to attorneys. Gov't Exhibit 4. Ivanson left a message for Tseitlin and spoke with Shpak, his attorney for civil matters, and Oleg Modik. Walsh Decl. ¶ 5; Ivanson Aff. ¶ 8. Ivanson asked Shpak if she had been in contact with Tseitlin, his criminal lawyer. Tr. 96. According to Ivanson, Shpak told him that she had contacted Tseitlin, and that Tseitlin would "appear in court for me." Ivanson Aff. ¶ 8; Tr. 98. Walsh did not know what Ivanson was saying to Tseitlin and/or Shpak since he spoke in Russian, a language which Ivanson, Shpak and Tseitlin all speak but that Walsh does not.*fn1 Tr. 32; Tr.2 15. In the message that Ivanson left for Tseitlin, Ivanson stated that "he needed assistance in dealing with his arrest." Tr.2 16. According to Ivanson, after he left the message, Walsh asked him whether he had spoken with his counsel, to which Ivanson responded that he left a message with Tseitlin and explained that Tseitlin would contact Walsh personally because Tseitlin had Walsh's number. Ivanson Aff. ¶ 9.

It is undisputed that, at 8:31 a.m., Tseitlin called Walsh on her cell phone and left a message advising her that she was Ivanson's attorney and requesting that Ivanson not be questioned in her absence. Tr. 49-50; Tr.2 13-14. Tseitlin left a message on Walsh's cellular telephone. Tr.2 13. Although Walsh's phone records reflect a call to her voice mail at 8:32 a.m., Walsh claimed that Tseitlin's message had not yet registered with her cell phone service provider and she did not receive the message at that time because of poor reception in the room she and Ivanson were in. Tr. 61-62. Walsh also claimed that her cell phone did not register Tseitlin's phone number as a "missed call" at or around 8:31 a.m because her phone did not have that feature.*fn2 Tr. 58-61. Ivanson alleges that Walsh was aware that Tseitlin had called and stated to him that she would return Tseitlin's call later, after taking Ivanson's pedigree information. Ivanson Aff. ¶ 8. Walsh asserts that she never told Ivanson she had received a message from Tseitlin and never stated that she would return the call later. Walsh Aff ¶ 7.

Because Walsh believed that Ivanson did not invoke his right to counsel, at around 8:35 a.m., she began to interrogate Ivanson. Tr. 37; Gov't Exhibit 1. Walsh asked Ivanson a few questions, which Ivanson answered. Walsh Decl. ¶ 6; Ivanson Aff. ¶ 10. Ivanson then asked to have his attorney present before he would answer any more questions. Walsh Decl. ¶ 6; Ivanson Aff. ¶ 10; Tr. 37, 36. At that point, at approximately 8:45 a.m., the interrogation stopped. Walsh Decl. ¶ 6; Ivanson Aff. ¶ 11. Walsh then left the room and walked down the hall to her office. Tr. 38. Due to sporadic cell phone service in the interrogation room, it was not until Walsh began to walk back to her office that her cell phone indicated that she had a voice mail. Id. Walsh then retrieved the message that Tseitlin has left at 8:31 a.m. Id; Walsh Aff ¶ 7; Tr. 66-67. Several minutes later, at 8:50 a.m., Walsh returned Tseitlin's call from a hard line located in the room where Ivanson had been interrogated Id; Tseitlin Aff. ¶ 13; Tr. 39; Tr.2 14-15.

CONCLUSIONS OF LAW

Although there is a dispute regarding whether or not Ivanson asserted his right to counsel immediately after his arrest while he was still in his home, there is no evidence that Walsh or any other Agents interrogated Ivanson before he executed the waiver of his Miranda rights at the FBI office. Walsh Decl. ¶ 2, 4; Ivanson Aff. ¶ 4, 6. Thus, the preliminary issue the court must address is whether Ivanson knowingly and voluntarily waived his rights after receiving Miranda warnings.

Ivanson was verbally advised of his rights in the car ride from his home to 26 Federal Plaza. Tr. 24. Walsh testified that another FBI agent, Ji Hwang, read a form, verbatim, advising Ivanson of his rights and, after advising him of each right, asked whether Ivanson understood. See Gov't Exhibit 3; Tr. 23-24. Ivanson answered that he understood all his rights. Id. One hour later, Ivanson was advised of his rights in writing. Gov't Exhibit 1; Tr. 25-26. He signed the form that indicated he had been advised of his rights and was waiving them. Id. Directly above his signature, the form reads "[a]t this time, I am willing to answer questions without a lawyer present." Gov't Exhibit 3. Ivanson is a board-certified neurologist who is proficient in English. The court does not credit Ivanson's allegation that he "did not notice" that "the form [he] signed included a statement that [he] wished to speak to the agent without a lawyer." Ivanson Aff. ¶ 6. On the evidence that exists in the record, the court finds that Ivanson's waiver was knowing and intelligent See U.S. v. Siraj, 424 F.Supp.2d 509, ...


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