The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Defendant Corbin Douglas, Sr. is charged in a ten (10) count indictment with violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 844(a), 859(a), 331(k), 353(b)(1) and 333. See Indictment 07 -CR -68 [dkt. #1]. Presently before the Court is Defendant's omnibus motion seeking to suppress certain statements he made to government officials, and to sever the various counts of the indictment. The Court heard oral argument on the severance portion of the motion on June 14, 2007, and, on the same date, held a suppression hearing. The following constitutes the Court's decision on the severance portion of the motion, and the Court's findings of fact and conclusions of law on the suppression portion of the motion.
The following is a general background applicable to both issues now before the Court. According to Defendant, on February 27, 2005 Corbin Douglas, Sr. went into his [14-month-old] son's room and found him lying motionless. He picked his son up and rushed to the kitchen of his small apartment. There he set his son on the floor and called 911. A 911 operator lead him through CPR and within minutes Emergency Medical Services were on the scene. Corbin, Jr. was transported by ambulance to Fox Memorial Hospital. Corbin, Sr. and the rest of his family, who had heard the incident on a scanner, followed close behind. On the afternoon of February 27, 2005 Corbin Jr. was pronounced dead.
Within hours after his son's death on February 27, 2005, New York State Police Investigators Lori Hochdanner and Jamie T. Bell arrived at Fox Memorial Hospital and conducted an interview of Defendant. Defendant contends that he "does not recall" being advised of his right not to speak to the police or being advised of any other rights. Douglas Decl. ¶ 6. He gave the police a written statement detailing the events of the day surrounding his discovery of his child in his crib. See Def. Ex. C; Govt. Ex. 2 at the 6/14/07 hearing.
On February 28, 2005, the Coroner performed an autopsy of the child. See Def. Ex. B. The summary of the autopsy report provides: "This 14 month old infant died suddenly and unexpectedly, at home. Postmortem toxicology studies indicated opiate (morphine) toxicity. Postmortem radiography disclosed a corner fracture of the left proximal humerus, most consistent with an inflicted injury (child abuse)." Id.*fn1
Later on February 28, 2005, Douglas was transported by three New York State Police officers to the New York State Police barracks in Sidney, New York. Douglas was interviewed for approximately 4 1/2 hours. The interview was video-taped. At some point during the time that Douglas was at the New York State Police barracks on February 28, 2007, he consented, and then refused, to give a voluntary urine sample. After the interview Douglas was arrested by the New York State Police and charged with the murder of Corbin, Jr. He was arraigned during the early morning of March 1, 2005 and remanded to the Otsego County Jail. While he was at the Otsego County Jail, Defendant was interviewed by Child Protective Services Case Worker Amanda Garrett.
Defendant was indicted and charged in state court with violations of New York State Penal Law §125.25 subdivision 4, Murder in the 2nd Degree, and New York State Penal Law §125.15(1), Manslaughter in the 2nd Degree. He testified in his own behalf at trial and was acquitted on both charges.
On February 1, 2007, the federal government charged Douglas in a ten count indictment with distribution and possession of various controlled substance. See Indictment 07-CR-68 [dkt. # 1]. Count 1 charges Defendant with distribution of heroin in and about February 2005 in violation of 21 U.S.C. § 841(a)(1). Although not alleged in Indictment, the Government contends the distribution alleged in Count 1 was to Defendant's friend, Joshua Richheimer. The Government further contends that on the date of this distribution to Richheimer, Defendant stole olanzapine, a prescription drug, from Richheimer's wife's pocketbook, and eventually gave the olanzapine to Corbin Jr. as charged in Count 6 (infra). In reply to the severance portion of the motion, Defendant supplies the Richheimers' testimony from the state court trial which indicates that neither saw Defendant take the olanzapine pills.
Count 2 charges Defendant with distribution of morphine in and about February 2005 in violation of 21 U.S.C. § 841(a)(1). The Government contends that this distribution was to Defendant's then 21-year-old cousin, Kallin Richards. Richards was the other adult in Defendant's apartment at the time the child died. Count 3 charges Defendant with distribution of morphine to a minor in and about February 2005 in violation of 21 U.S.C. §§ 859(a) and 841(a)(1). The distribution was allegedly to Defendant's 14-year-old sister.
Count 4 charges Defendant with distribution of heroin, morphine, oxycodone and hydromorphone to a minor in and about February 2005 in violation of 21 U.S.C. §§ 859(a) and 841(a)(1). The distribution was allegedly to Defendant's 14-month-old son. Count 5 charges distribution of morphine and hydromorphone resulting in death in and about February 2005 in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Again, the distribution was allegedly to Defendant's son. Count 6 charges Defendant with the unlawful distribution of the prescription drug olanzapine in violation of 21 U.S.C. §§ 331(k), 353(b)(1) & 333. This distribution was also allegedly to Defendant's son.
Count 7 charges distribution of morphine in and about 2002 in violation of 21 U.S.C. § 841(a)(1). During oral arguments on the severance portion of the motion the Government asserted that this count is based on evidence that Defendant poured liquid morphine into Elicia Longcor's drink without her knowledge. Elicia Longcor is Defendant's girlfriend and the mother of Defendant's deceased son.
Count 8 charges Defendant with possession of heroin, morphine, oxycodone and hydromorphone in and about February 2005 in violation of 21 U.S.C. §844(a). Count 9 charges Defendant with possession of heroin, marihuana, 3, 4, methylenedioxymethamphetamine (MDMA, also referred to as ecstasy), morphine, oxycodone, hydromorphone, cocaine, and fentanyl in and about 2004 in violation of 21 U.S.C. §844(a). Count 10 ...