The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Defendant is charged with possession of five kilograms of cocaine, a controlled substance, with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Defendant seeks to suppress statements that he made to law enforcement officers during the course of three proffer sessions and in connection with his cooperation with the government's investigation into narcotics trafficking at John F. Kennedy International Airport ("JFK"). He contends that the government obtained these statements in violation of his Fifth and Sixth Amendment rights to counsel, and by economic coercion. (Docket Entry No. 36.) Additionally, he contends, for the first time in post-hearing submissions, that the statements cannot be admitted against him as he is protected by Rule 410 of the Federal Rules of Evidence and Rule 11 of the Federal Rules of Criminal Procedure. The government opposes defendant's motion in its entirety. (Docket Entry No. 40.) For the reasons set forth more fully below, defendant's motion is denied in its entirety.
Prior to his arrest, defendant worked as a crew chief for American Airlines at their JFK hub for eighteen years. (Def. Aff. ¶ 3.) On October 11, 2006, law enforcement officers arrested defendant for narcotics possession. (Def. Aff. ¶ 2.) On October 12, 2006, defendant was arraigned before a magistrate judge who assigned Michael Schneider, Esq. from the Federal Defenders' Office to represent him. (Def. Aff. ¶ 4.) Defendant subsequently retained an attorney on his own, John Moore, Esq., to represent him. Defendant first met with Mr. Moore on October 13, 2006 at the Brooklyn Metropolitan Detention Center ("MDC"). (Def. Aff. ¶ 4.) Defendant was next scheduled to appear in court on October 16, 2006 for a detention hearing. (Def. Aff. ¶ 5.) On October 16, 2006, defendant was brought to the courthouse for the detention hearing. (Def. Aff. ¶ 6.) The parties have provided conflicting stories as to what happened next.
Defendant contends that, on October 16, 2006, while in a holding cell at the courthouse, two federal agents, Christian Andretta and Danny Lee, removed him from his cell and transported him to the United States Attorney's Office ("USAO"). There, he met with Assistant United States Attorney ("AUSA") Steven D'Allessandro and other unidentified individuals. (Def. Aff. ¶¶ 6-10.) At this meeting, AUSA D'Allessandro allegedly told defendant that he could return to work only if he cooperated with their investigation. (Def. Aff. ¶ 12.) Defendant thereafter agreed to cooperate. (Def. Aff. ¶ 13.) Agents Andretta and Lee then returned him to the courthouse and told him not to talk to anyone about his cooperation. (Def. Aff. ¶¶ 15-16.) Defendant claims that this meeting occurred outside the presence of his attorney and that he committed to cooperating with the government without the benefit of counsel. (Def. Aff. ¶¶ 17-23.) Defendant further alleges that, prior to this meeting, he did not have any conversations with either of his attorneys about the benefits and consequences of participating in proffer sessions and cooperating as neither of his attorneys were aware that he would be meeting with the government on October 16, 2006.
B. Government's Opposition
The government submitted interview notes and affirmations from the law enforcement officers involved with the investigation that present a different account of the events in question. The interview notes purport to summarize proffer sessions held on October 16, 2006, October 31, 2006, and November 2, 2006. The notes indicate that defendant attended these sessions with John Moore, his attorney at that time.*fn1 (Gov't Mem. Exs. C-E.) The government also submitted a copy of a proffer agreement with a type-written date of October 16, 2006 that defendant and his attorney signed. (Gov't Mem. Ex. B.) The parties also placed their initials and the date October 31, 2006 next to their signatures. (Id.)
Agent Lee indicated that, on October 16, 2006, he transported defendant from a holding cell at the courthouse to the USAO's for a proffer session. According to Agent Lee, the following individuals were present at that session: AUSA D'Allessandro, Immigration and Customs Enforcement ("ICE") Group Supervisor James Modico, ICE Special Agent Christian Andretta, Port Authority Police Department ("PAPD") detective Donald McMahan, defendant, and John Moore, defendant's attorney. (Lee Affirm. ¶ 6.) At the beginning of the meeting, defendant and his attorney met privately to discuss a proffer agreement the government provided them, which defendant signed before the parties began discussing the investigation. (Lee Affirm. ¶¶ 7-8.) According to Agent Lee, defendant made incriminating statements. Additionally, he agreed to cooperate with the investigation, to meet with law enforcement officers outside the presence of counsel in furtherance of his cooperation, and to return to work wearing a recording device. (Lee Affirm. ¶ 9.)
Agent Andretta's account of the October 16, 2006 proffer session was consistent with that of Agent Lee. (Andretta Affirm. ¶ 6.) Agent Andretta also stated that she was present at a November 2, 2006 proffer session, during which the same procedures with respect to the proffer agreement were followed: (i) defendant and his attorney were given a proffer agreement, (ii) defendant and his attorney privately reviewed it and conferred, and (iii) defendant and his attorney signed it. (Andretta Affirm. ¶ 9.)
Agent Andretta also stated that she was present at a proffer session held on July 30, 2008 attended by defendant and his most recently retained counsel, Gregory Blackman. During this session there was no proffer agreement in place. (Andretta Affirm. ¶ 10.) At that meeting, defendant indicated, among other things, that he had signed proffer agreements at prior proffer sessions.
AUSA D'Allessandro asserts that on October 16, 2006, John Moore, defendant's attorney at that time, was present at the proffer session. (D'Allessandro Affirm. ¶ 6.) Prior to the start of the proffer session, AUSA D'Allessandro provided defendant and his attorney with a proffer agreement and gave them time to review and discuss it privately. (D'Allessandro Affirm. ¶ 7.) Defendant indicated that he and his attorney discussed it and then defendant signed it. (D'Allessandro Affirm. ¶ 8.) The government then interviewed defendant and defendant agreed to cooperate with their investigation. (D'Allessandro Affirm. ¶ 10.) Defendant returned to work at JFK and wore a recording device, which recorded all of his conversations. (Id.) Defendant and his attorney met with the government for two additional proffer sessions held on October 31, 2006, and November 2, 2006, both of which were protected by the proffer agreement. (D'Allessandro Affirm. ¶¶ 11-12.)
John Moore, defendant's attorney at the time of the first proffer session (and subsequent sessions), submitted an affidavit affirming that he attended a proffer session held on October 16, 2006 at the USAO's office. (Moore Affirm. ¶ 4.) Moore also indicated that, at the beginning of the meeting, AUSA D'Allessandro gave him and defendant a proffer agreement, which they reviewed privately, and then signed. (Moore Affirm. ¶¶ 5-6.) The government interviewed defendant at this meeting and defendant agreed to cooperate. (Moore Affirm. ¶ 7.) The parties then proceeded to the courthouse for the previously scheduled appearance. (Moore Affirm. ¶ 8.) The parties then met for additional proffer sessions on October 31, 2006, November 2, 2006, and March 15, 2007. (Moore Affirm. ¶¶ 9-13.) Mr. Moore was present at each of these sessions.
To resolve the discrepancies between the affirmations of the defendant and various government witnesses, the court conducted a suppression hearing on January 22, 2009 and January 27, 2009.*fn2 Several witnesses testified, including defendant, Mr. Schneider, Mr. Moore, AUSA D'Allessandro, and Agents Shand, Lee, and Andretta.
Defendant's testimony on direct tracked the assertions contained in his affidavit. He indicated that his first and only meeting with Mr. Schneider occurred at the prison on October 12, 2006, prior to his arraignment, and that they did not discuss proffer sessions. (Jan. 22 Tr. 62-63.) Defendant testified that he met with Mr. Moore on October 13, 2006, and that Mr. Moore did not mention the scheduled proffer session and did not explain the benefits and consequences of such sessions. (Jan. 22 Tr. 63-65.) Defendant had no prior notice of the proffer session from his attorneys or the government. (Jan. 22 Tr. 66.)
On October 16, 2006, defendant was transported to the courthouse for a bail hearing. He testified that he then was taken from a holding cell at the federal courthouse to the USAO where he signed a log book. (Jan. 22 Tr. 65-67.) Defendant met with unspecified Port Authority officers, Agent Shand, and AUSA D'Allessandro. (Jan. 22 Tr. 68-69, 72.) Defendant's attorney, Mr. Moore, was absent from this meeting. (Jan. 22 Tr. 70, 74-75.) Defendant agreed to assist the government in its investigation of drug trafficking at JFK by gathering information and wearing a recording device. (Jan. 22 Tr. 70-74.) Defendant testified that he did not sign any agreement at this meeting. (Jan. 22 Tr. 74.) At the conclusion of the meeting, the agents returned him to the courthouse for his appearance.
Defendant claimed that he met briefly with Mr. Schneider at the courthouse prior to his appearance, at which point Mr. Schneider told him that cooperating was a "good idea." (Jan. 22 Tr. 75.) Defendant claimed that Mr. Schneider represented him initially at that court appearance, and then was relieved by Mr. Moore. (Jan. 22 Tr. 76.) Defendant indicated that the parties informed the judge of his cooperation. (Jan. 22 Tr. 76-77.) The judge released defendant on bail. Afterwards, Mr. Moore met with the government on ...