The opinion of the court was delivered by: Barbara S. Jones United States District Judge
On September 29, 2006, Defendant Michael Annucci ("Defendant" or "Annucci") was arrested on a warrant issued upon a Complaint. On February 14, 2007, Defendant was indicted on a four-count Superseding Indictment charging him as follows. Count One charges Defendant with conspiracy, in violation of Title 18, United States Code, Section 371. Count Two charges Defendant with aiding and abetting the embezzlement of monies from employee benefit plans in violation of Title 18, United States Code, Sections 664 and 2. Count Two alleges that Defendant "participated in a scheme whereby he submitted false shop steward reports that underreported the hours worked by carpenters for a company named L&D Installers ("L&D"). Count Three charges Defendant with wire fraud, in violation of Title 18, United States Code, Sections 1343 and 2. Count Four charges Defendant with unlawful receipt of payments by a union official, in violation of Title 29, United States Code, Section 186(a)(1), (b)(1), and (d)(2). Before the Court are Defendant's motions to suppress his post-arrest statements and to dismiss Count Two of the Indictment on the ground that the allegedly delinquent employer contributions cannot be the subject of an embezzlement charge. For the reasons set forth below Defendant's motions are DENIED.
The Court held a suppression hearing regarding Defendant's arrest and his post-arrest statements on March 20, 2007. At the hearing three of the agents who participated in the arrest testified: Agent Ryan Gibbs, Agent Marcus Rivera, and Agent Stephen Donnelly. Defendant did not testify at the hearing but he submitted a sworn affidavit that described his version of the events. The Court finds the agents' testimony credible and credits their testimony. The following facts are drawn from the agents' accounts of the events that occurred on that day and represent the Court's findings of facts.
Defendant was arrested at his home located at 4 Reta Lane, Port Monmouth, New Jersey on the morning of September 29, 2006. (Mar. 20, 2007 Hr'g Tr. (hereinafter "Hr'g Tr.") 3:24-4:1.) The arrest team was made up of six agents from the Department of Labor: Agent Ryan Gibbs, Agent Marcus Rivera, Agent Stephen Donnelly, Agent Jonathan Malone, Agent James Woods, and Agent Tina Seisis. (Id. at 4:7-14.) The agents arrived at Defendant's residence at approximately 6:00AM (Id. 4:2-4), and waited in their two vehicles for approximately 40 minutes (Id. 4:21-22). At approximately 6:40AM, Agents Rivera, Donnelly, and Gibbs approached Defendant's home and knocked on the door. (Id. 5:5-8.) The Defendant answered the door, and the agents identified themselves. (Id. 5:8-14.) The agents explained to Defendant that they "wanted to speak with him regarding some work he had done as shop steward at the 11 Madison job site." (Id.) Defendant indicated that he did not want to speak to the agents and attempted to close the door. (Id. 5:15-17.) Agent Rivera prevented Defendant from closing the door and informed him that the agents had a warrant for his arrest. (Id. 5:18-20.) Agents Rivera, Donnelly, and Gibbs then entered Defendant's residence and showed him the arrest warrant. (Id. 5:21-24.) The agents told Defendant that they would like to speak with him and asked if there was somewhere where they could talk. (Id. 5:25-6:3.) Agent Gibbs and Defendant then "stepped down several steps into what appeared to be the basement" and sat down in a seating area. (Id. 6:2-6.) Agent Gibbs then "pitched" Defendant. (Id.) During the "pitch," Agent Gibbs told Defendant that they "just wanted him to listen," and informed Defendant of the investigation the Department of Labor had conducted and the incriminating evidence they had obtained against him. (See id. 6:7-12.) Agent Gibbs attempted to get Defendant to cooperate. In response, Defendant "said something to the effect of 'Fuck off. I'm not cooperating with you. And I want to talk to my attorney.'" (Id. 6:13-16, 52:19-21.) Agent Gibbs ceased talking to Defendant, began escorting Defendant upstairs so he could get dressed (Id. 6:24-7:5), and called in the other agents to perform a security sweep (Id. 6:20-23). The pitch took approximately "three to five minutes." (Id. 34:16-18.) On his way up the stairs, Defendant met his wife, and instructed her to call his attorney. (Id. 6:24-7:1.) Agents Gibbs, Donnelly, and Rivera, then took Defendant to his room to get dressed. (Id. 7:2-5.) While Defendant was getting dressed, the agents asked Defendant where his clothing was located, if he had any shoes without laces, and if he was going to need any medication for the next 24 hours or so. (Id. 7:6-13.) When Agent Donnelly handed Defendant a shirt from his wardrobe, which turned out to be a union-logo shirt, Defendant asked for a different shirt, and the agents gave the Defendant another shirt. (Id. 8:5-12.) While he was dressing, the agents did not ask Defendant any questions about his conduct as a shop steward (Id. 7:21-24), nor was there any discussion about the underlying charges against Defendant (Id. 7:25-8:2).
At approximately 6:55AM, the agents took Defendant out of his residence (Id. 8:18-20), placed him in their vehicle, and handcuffed him (Id. 8:25-9:2). Defendant told the agents that he had a shoulder injury and could not put his hands behind his back, so to accommodate his injury the agents handcuffed Defendant with his hands in front of his chest. (Id. 9:4-9.) Approximately two to three minutes after pulling out of Defendant's driveway, Agent Gibbs read Defendant his Miranda warnings in English from a pre-printed sheet. (Id. 10:7-19.) While reading the Miranda warnings, Agent Gibbs stuttered on one sentence and Defendant remarked, in substance, that the agent "didn't know how to read" and that he thought the agent "would be better at this." (Id. 10:22-11:2.) Agent Gibbs recorded the time and date the warnings were given on the Miranda sheet. (Id. 35:24-36:5.) The agents asked Defendant for directions out of his residential development to the Garden State Parkway. (Id. 54:3-7.) Defendant gave the agents directions and they proceeded north to the Garden State Parkway. (Id. 54:7-9.)
The car ride from Defendant's home to the Department of Labor office located at 201 Varick Street, New York, New York, took approximately two hours. (Id. 9:14-17, 11:9-11.) Almost immediately into the car trip, Defendant began talking. (Id. 12:5-9.) All of Defendant's statements were unsolicited. (Id. 12:21-24.) Defendant spoke about his life experiences, his Puerto Rican ancestry, his childhood, and his upbringing. (Id. 12:10-20.) Defendant also made statements about other union officials. (Id. 13:12-23.) He stated that Gary DeMaria, one of the owners of L&D installers who has since passed away, was in hell for what he did. (Id. 14:3-5.) In response to Defendant's statements, Agent Rivera reminded Defendant that he had the right to remain silent and told him he should use it. (Id. 14:6-9.)
Defendant continued to speak and proceeded to make incriminating statements. (Id. 18:7-12.) Defendant asked Agent Gibbs what type of evidence they had against him. (Id. 16:4-7.) Agent Gibbs told Defendant that he had interviewed several carpenters who stated that they worked at Defendant's job site and were left off the "sheet" -- the shop steward report. (Id. 16:4-15.) Agent Gibbs also told Defendant that he had compared Defendant's shop steward reports with L&D timesheets for the 11 Madison jobsite and the two did not match. (Id.) In response, Defendant said "he had to do it; he had to leave guys off the sheet or he would have lost his job" (id. 13:1-3); that "he had to play ball" (id. 15:24-16:1, 55:13-14). Agent Gibbs followed up by asking Defendant what he meant by having to do it. (Id. 16:20-23.) Defendant did not respond. (Id. 16:24-25.) Upon hearing the statements made by Defendant, Agent Gibbs made a note on an envelope he had in the front of the car and recorded the time the statements were made. (Id. 17:18-20, 32:2-3.)
In the course of the car ride, Defendant also posed questions to the agent. Defendant asked Agent Gibbs several times if the Agent had been in the military. (Id. 14:12-14.) Initially, Agent Gibbs offered no response, but subsequently told him he was not. (Id. 14:13-14.) Defendant also asked Agent Gibbs what type of cooperation the agents were seeking. (Id. 14:15-17.) In response, Agent Gibbs told Defendant that they would be interested in information about any union officials or other individuals whom Defendant knew were engaged in criminal activities. (Id. 14:13-24.) Agent Gibbs named specific individuals, such as business agent William Hanley from Local 157. (Id. 14:24-15:3.) In response, Defendant told Agent Gibbs, in substance, that the agent needed to get his facts straight because Fred Kennedy is the business agent, not William Hanley.
The agents initiated a conversation with Defendant only twice during the car ride. The first conversation took place almost immediately after departing from Defendant's residence when the agents asked Defendant for directions out of his residential development. The second conversation initiated by the agents took place approximately forty minutes into the ride when the agents stopped at a rest stop. (Id. 11:12-17.) The agents asked Defendant if he needed to use the rest room and if he wanted anything to eat or drink. (Id. 11:18-23.) In response, Defendant declined to use the restroom but requested a cup of coffee and told the agents how he would like his coffee. (Id. 11:24-12-2.)
The agents and Defendant arrived at the Department of Labor's offices at approximately 8:55AM. (Id. 19:4-6.) As they approached the offices, Agent Rivera read Defendant his Miranda warnings again from a pre-printed card. (Id. 57:22-58:5.) Agent Rivera read the warnings in English, and in response, Defendant said that he did not understand English, even though he had been speaking in English the entire car ride. (Id. 58: 4-6.) Agent Rivera then read the Miranda warnings in Spanish (id. 58:6-8), and Defendant commented that Agent Rivera's Spanish was "pretty good" (id. 58:8). Defendant was then brought into the Department of Labor offices to be processed. (Id. 19:22-23.) After processing, Defendant was taken to the intake unit of the Marshal's Service in the Southern District. (Id. 20:13-15.)
I. Defendant's Motion to Suppress Post-Arrest Statements
Defendant Annucci moves to suppress all of his post-arrest statements on the ground that the agents violated his Fifth and Sixth Amendment rights by trying to "lure" him into conversation, and by making continued efforts to obtain his cooperation after he invoked ...