The opinion of the court was delivered by: Glasser, United States District Judge
A hearing was held on the defendant's motion to suppress statements made to law enforcement agents. At the conclusion of the hearing, the Court makes the following findings of fact and conclusions of law.
On November 10, 2004, Special F.B.I. Agent Jed Salter together with Special Agent Mike Powers and two detectives from the N.Y.P.D., Detective Hunter and Detective Schulman, went to the Oneida Correctional Facility in upstate New York to interview James McTier. He was serving a 5 year sentence there for robbery. They arrived there at 1:50 p.m. and were escorted to a large conference room at which Mr. McTier arrived sometime thereafter. The interview was conducted by Agent Salter who introduced himself and the others and began by asking what he characterized as "some general well being questions" to which the defendant responded, and the responses to which are not the subject of this motion. Agent Salter then explained to him that the reason for their visit was an investigation being conducted into a lot of violence in and around the Marcus Garvey Village and evidence they had that McTier participated in some of the shootings and homicides. He also told McTier that they knew that he (McTier) had information about other incidents and discussed the possibility of obtaining his cooperation.
McTier was directed to remain silent and listen during that questionless recital and when asked, agreed to continue with the interview. Agent Salter then provided him with a Miranda form (Gov. Ex. JS5), and asked him if he could read and write. McTier said "yes," read it out loud at Salter's request, and signed the form which was witnessed by one of the detectives. McTier had no difficulty reading the form and said he understood it. Prior to being advised of his Miranda rights, no questions were asked of him nor did he make any inculpatory or other statements. After being advised of his rights, McTier agreed to be interviewed. He was told by Agent Salter that he could stop the interview at any time. He never requested an attorney, nor inquired about the availability of one.*fn1 The interview lasted for approximately one hour and 45 minutes during which homicides, shootings and gang activity in and around Marcus Garvey Village was discussed. The interview ended at about 4:40 p.m. when McTier said that he wanted to go to eat.
Agent Salter next saw McTier on May 24th when he was brought to the 75th Precinct in Brooklyn prior to being arrested in this case. He was with Detective Hunter when he asked McTier whether he would speak with them, McTier replied that he would on condition that he be provided with a telephone call, some food and toilet paper, which he was. He was then taken to an interview room and began to speak, but was told to stop until advised of his Miranda rights. He was again provided with the Miranda rights form, read it out loud and signed it. (Gov. Ex. JS6). He did not request an attorney then or at any time thereafter and agreed to speak with Agent Salter, but when asked some questions, he was unwilling to talk, saying that he told of one murder adding slight detail about it and concluded the interview. Agent Salter's notes of that interview were received in evidence without objection.
Cross-examination of Agent Salter affirmed his direct testimony that no questions were put to McTier during their initial meeting at the Oneida Correctional Facility before he was advised of and acknowledged his Miranda rights and elicited nothing of any relevant substance which differed from his prior testimony on direct examination.
The defendant was called to testify on his own behalf. Unlike the testimony of Special Agent Salter, who the Court found to be responsive to the questions put to him on both direct and cross examination and to be entirely credible, sadly, the same findings cannot be made for the defendant's testimony. A few examples will suffice.
On direct examination, the defendant recounted his being summoned to be interviewed by Special Agent Salter and his appearance at the interview room. He testified that the two F.B.I. agents and the two NYPD agents identified and introduced themselves and he was then asked:
Q: After they introduced themselves, what, if anything did you do?
A: I asked to have a lawyer present.
In a sworn affidavit in support of his motion, he stated that : "As soon as officers began questioning me, I asked for an attorney. The officers proceeded to question me. I was never provided with an attorney." Tr. at 17.
Agent Salter's testimony was that it was some time after McTier entered the interview room and after he was told to listen and not respond until after being told why Agent Salter and his colleagues were there and why and about what they wanted to interview him, and after advising him of his Miranda rights, that they put questions to him. McTier's testimony, that self-serving inconsistency aside, confirms Agent Salter's version of the event. After testifying that immediately upon entering the room and before a word was spoken to him, he said, "I asked to have a lawyer present," the transcript of the proceeding reflects his continued direct examination:
A: I was told to wait a minute, just to hear them out.
Q: That is Agent Salter in court today?
Q: Did Agent Salter say anything to you after he told you to just wait and hear him out?
A: He told me I was the focal point of a joint FBI ...