The opinion of the court was delivered by: Hurley, Senior District Judge
By notice of motion dated October 6, 2006, Rodney Arnoldo Morrison ("defendant" or "Morrison") requested a number of items of relief including the one which is the subject of this opinion, to wit, an order dismissing the indictment or, in the alternative, precluding the government from using, for any purpose, statements made by him at a proffer session held on May 19, 2005. The bases for the motion include purported violations of defendant's rights under the Fifth and Sixth Amendments to the United States Constitution.
For reasons provided infra, the relief sought is granted to the extent that the government may not use any statement Morrison made during the May 19, 2005 proffer session for any purpose;*fn1 defendant's alternative request for a dismissal of the indictment is denied.
(a) Nature of Charges in First and Second Superseding Indictments Under indictment 04-699(S-1) filed on August 31, 2004, defendant stood accused of a series of arson related crimes, plus two counts of being a felon in possession of a firearm. A second superseding indictment, returned on July 11, 2006 (04-699(S-2)), added several new charges, including counts alleging tax violations and defendant's involvement in the murder of Sherwin Henry.
(b) Reverse Proffer Session of January 28, 2005 and Proffer Session of May 19, 2005
In the interim between the return of those two accusatory instruments, the defendant participated in two proffer sessions. The first, on January 28, 2005, was held in the United States Attorney's Office in Central Islip and was attended, inter alia, by Morrison, his attorneys at the time (viz. Gerald Shargell ("Shargell"), Henry Mazurek ("Mazurek"), and Sabrina Shroff), Assistant United States Attorneys Gary R. Brown ("Brown"), and Wayne L. Baker ("Baker"), as well as Suffolk County Police Detective Robert Trotta ("Trotta.")
The purpose of the January 28, 2005 session was, as explained by the government:
[T]o summarize for the defendant and his lawyers the government's investigation thus far, specifically regarding racketeering, tax evasion and the Sherwin Henry murder - crimes that had not been charged at that time, but which the government previously asserted to this Court were "imminent" absent a pre-trial disposition. The disposition proposed by AUSA Brown was that Morrison enter into guilty pleas in federal and state courts in lieu of additional charges and face 18 years imprisonment. Morrison would also be required to forfeit $15 million as part of a deal to resolve federal tax evasion violations that were also part of the investigation.*fn2
(Gov't's Mem. in Opp'n to Def.'s Mot. for Dismissal or Preclusion of Evidence at 5, docket no. 202 (internal citation deleted).)*fn3
Another proffer session was held at the same location in May of that year, to wit on May 19, 2005. On that occasion, Morrison was with his then attorney Ephraim Savitt ("Savitt"); Trotta was also present as part of the government contingent. Morrison made several incriminating statements at the May meeting. Contemporaneously, he signed a proffer agreement permitting the government's use of those statements "as substantive evidence to cross-examine [him] should [he] testify . . . and . . . as substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [him] at any stage of a criminal prosecution." (Id. Gov't's Ex. 5 ¶ 3.)*fn4
Defendant now seeks, in effect, to suppress what he said at the May 19th proffer session, thus rendering the accompanying proffer agreement a nullity.
The primary basis for defendant's application is that Trotta and Suffolk County Detective Timothy Gozoloff ("Gozoloff"), while transporting the incarcerated defendant from the United States Attorney's Office to the Metropolitan Detention Center ("MDC") following the January 28, 2005 reverse proffer session, advised defendant, in no uncertain terms, that he should admit his wrongdoing, and accept the government's offer of 18 years imprisonment to cover not only the arson and weapon charges then pending but also the uncharged tax violations and claims related to the Sherwin Henry homicide. Not to do so, Trotta advised, would be a mistake because if Morrison went to trial he would lose and face a far more onerous sentence.
That advice, according to Morrison, was repeated by Trotta on other occasions, including during the trip from the MDC to the United States Attorney's Office for the May 19, 2005 proffer session. Morrison avers that he "relied on Trotta's advice and . . . participated in the [May 19th] proffer as a result of [his] being influenced by Trotta's comments and encouragement." (Oct. 6, 2006 Morrison Aff. ¶ 23, attached as Ex. 2 to Nobel Affirmation of same date ("Oct. 6, 2006 Morrison Aff.").) Savitt was unaware, as were defendant's earlier attorneys, that Trotta had been advising Morrison during this critical stage of the proceedings. (See Jan. 27, 2007 Morrison Aff. ¶ 10, attached to Jan. 29, 2007 Nobel letter ("Jan. 27, 2007 Morrison Aff.") ("I never discussed my interactions with Trotta with any attorney.").)
In opposing the relief sought by defendant, the government's main arguments are as follows: (1) Morrison "initiated" the conversation during the trip from the United States Attorney's Office to the MDC "about the just completed reverse proffer meeting" on January 28th, not Trotta (Gov't's Mem. in Opp'n to Def.'s Mot. for Dismissal or Preclusion of Evidence, docket no. 293, at 7), (2) from his comments during that trip, as well as during the proffer session itself, it was clear defendant wished to speak directly to the government about charged and uncharged crimes and required no encouragement to do so, (3) the "detectives did not encourage Morrison [to enter into a proffer agreement] but instead warned him to listen to his counsel" (id. at 8), (4) that Trotta, in essence, merely repeated what he said at the meeting in the presence of counsel during the trip back to the MDC, (5) that the various defense attorneys met with defendant on multiple occasions in the interim between January 28 and May 19, 2005 as evidenced by the MDC sign-in sheets, (6) that "Mr. Savitt testified that he was the person who initiated cooperation and a proffer with the government as an option discussed with Morrison sometime after he was retained and before the proffer itself in May" (id. at 11), (7) that Savitt described Morrison as "'an intelligent and sophisticated person'" who was hesitant to "'strip himself naked'" at a proffer session, and who "clearly 'understood the ramifications of a proffer session'" (id. at 12), (8) "Mr. Savitt remained in 'frequent communication' about the case, until September 2005, when the prosecutor informed [him] that a cooperation agreement to the defendant would not be forthcoming," (id. at 14) (9) that Morrison lied in his October 6, 2006 affidavit when he stated that "he attended the [May 19th] proffer session 'even before [he] had an opportunity to thoroughly discuss it with [his] new attorney'" (id. at 17), and (10) defendant's right to counsel had not attached for Sixth Amendment purposes as to the homicide and tax matters given that the second superseding indictment containing those charges was not returned until well after the second proffer session.
(a) Advice Provided by Trotta and Gozoloff to Morrison During the January 28, 2005 Trip From United States Attorney's Office to the MDC
We know what was said by each person in the vehicle on January 28, 2005 from the recording made by Trotta. As the government correctly notes, in some instances the detectives complimented defense counsel and, on several occasions, advised the defendant to follow the advice of his attorneys. That such statements would appear on the tape is certainly not surprising given the detectives' knowledge that everything they said was being recorded and might, at some point, be made available to the defense.*fn5 Moreover, it is also true that the officers did not question the defendant in an effort to obtain incriminating information and that the defendant was more than a willing participant in the ongoing colloquy concerning the charges he faced and the feasibility of resolving his legal problems via negotiations with the government; in fact, at least in January of 2005, that is what he wanted to do but at some number less than the 18 years offered by Brown. All of that being said, however, it is clear that Trotta and, to a lesser extent, Gozoloff, tried to use their time alone with defendant, i.e. absent his attorneys, to convince him that he had no chance of prevailing at trial and, accordingly, he should accept the government's plea offer lest he spend the rest of his life in jail or, possibly, receive the death penalty. That such was their intended overriding goal is evident from the tape. By way of some examples, consider the following excerpts from the government's transcript of the January 28th conversations:
1. Trotta explaining to Morrison that he should "be kissing Brown's ass right now" in return for the eighteen year offer (Ex. 3 to Gov't's Mem. in Opp'n to Def.'s Mot. for Dismissal or Preclusion of Evidence, docket no. 202, at 20);
2. When Morrison states that Shargell wants to go to trial, Trotta explains "[t]hey want a new boat. Exactly, it is all about the money" (id. at 4);
3. Trotta explaining to Morrison that if he goes to trial and loses he "will get life" (id. at 24);
4. Trotta telling Morrison that it is "up to [him] if [he] want[s] to go for life or do 18 years" (id. at 25);
5. Trotta explaining "hypothetically" that even if an individual charged "on . . . violent stuff" was not convicted, the judge "could say I know he did this, so I am going to give you 60 years for tax" (id. at 27);
6. Trotta, supposedly speaking to Detective Gozoloff, explaining that "in the federal system murder is either life in prison or death penalty. So the plea was to [be taken] in the state; they would give him 15 or 18 years . . . [a]nd run it concurrently with the arson and racketeering . . . so he will . . . get 18 and do 15" (id. at 33);
7. Trotta saying "I am not talking to you [meaning Morrison]," whereupon he asks Gozoloff to "[e]xplain felony murder" (id. at 34);
8. Trotta explaining to Morrison that he "has no jury appeal" and that "[t]hey [presumably meaning the jury] will crush him" (id. at 43);
9. Trotta explaining, purportedly to Gozoloff, that when the jury learns "how Rodney beat his wife . . . every woman on the jury will fucking hate him" (id. at 43); when Morrison asks who is going to so testify, Trotta replies "I can put five or six people on to say it" (id.);
10. Trotta explaining to Gozoloff that Morrison "is looking at 30 to 60 years and possibly life or possibly death, so he takes the 30, cut it in half and it is 18" (id. at 46);
11. Trotta explaining to Morrison that "there is no piece of evidence we don't have, short of you confessing saying I killed Sherwin Henry" (id. at 54);
12. Trotta explaining to Morrison "[i]t is obvious we know about these tattoos [referring to some of Morrison's female employees being tattooed with his initials]. What do you think the jury is going to think, normal people -- I am not asking you any question -- these women up there and they start showing these . . . tattoos? Those jurors are going to go oh, my God, what . . . the hell is with this guy?" (id. at 56);
13. Trotta, in replying to Morrison's observation that the government must have "something that I don't know about," that "[w]e have a ton of stuff you don't know about" (id. at 88);
14. Trotta explaining to Morrison "[t]hink of all the substantiation we have. Everything is double and triple and quadruple substantiated" (id. at 89); 15. When Morrison raises the possibility of prevailing at trial or of receiving "less time than they're offering" should he be convicted, Trotta tells him: "In your case that can't happen" (id. at 93);
16. Gozoloff stating that "if they do a RICO, you are fucked" (id. at 89-90), to which Trotta adds: "They are going to, if they do RICO you are dead" (id. at 90);
17. When Morrison says "Never, never[;] 18 years, that would be crazy" Trotta replies "[n]ever ...