The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Defendant Hector Rivera ("Rivera") is one of seven remainingdefendants charged in a seven-count superseding indictment with, inter alia, conspiracy to violate the Hobbs Act, 18 U.S.C. §1951, in connection with the hijacking of one and attempted hijacking of anotherFederal Express tractor-trailer truck, bothon the west side of Manhattan. Rivera moves to suppress a single statement allegedly made to federal agents following his arrest on December 4, 2008.*fn1 For the reasons that follow, Rivera's motion is GRANTED.
On the night of December 4, 2008, agents of the FBI decided to "take down" an ongoing investigation in which Rivera was a suspect. On that evening they arrested approximately twelve suspects, including Rivera, who was arrested without incident in the area of Hollis, New York. Tr. of August 12, 2009 Hrg. ("Tr.") 7. Rivera was transported by car to FBI headquarters at 26 Federal Plaza in Manhattan for processing. Tr. 7, 34. At asuppression hearing held on August 12, 2009, Special Agent Michael Zuk ("Zuk"), one of two lead "case agents" responsible for the investigation, testified that in preparation for the multiple arrests, agents from several different squads were called to assist with the arrests and processing of the suspects. Tr. 7. The assisting agents were instructed to conduct the initial arrest processing, i.e. obtaining fingerprints, photographs, and pedigree information from the arrestees, but toallow Zuk or his fellow case agent Karma Smith to "substantively interview" those who were arrested. Tr. 7-8.
The procedure was followed in Rivera's case. Special Agent Peter Casson ("Casson"), one of the agents who had arrested Rivera, and SpecialAgent Byers took Rivera through the initial intake process by obtaining biographical pedigree information, photographs and fingerprints. Casson testified that he then read aloud to Rivera each of the Miranda rights listed on a form titled "Advice of Rights" as Rivera read along*fn2 Tr. 36. Rivera then initialed next to each of the listed rights to confirm that he understood them. Tr. 36. Casson did not ask Rivera if he wished to waive any of his rights. Tr. 37. Instead, Casson left Agent Byers in the interview room with Rivera and sought out Zuk. Tr. 36.
Zuk entered the interview room sometime between 12:35 and 1:00 a.m. According to Zuk's testimony, Casson informed him that the booking paperwork was complete and that Casson and Byers had advised Rivera of his rights "but they stopped there." Tr. 8, 17. Neither Zuk nor Casson could recall whether it was specifically communicated to Zukthat Rivera had not invoked his rights, and Zuk did not recall specifically asking the other agents if he had. Tr. 17-18, 20. Rather, Zuk testified that his "conversation with Special Agent Casson indicated... that Mr. Rivera had been advised completely, but... they had not initiated the discussion of whether he wished to waive those rights." Tr. 19-20.
Zuk then introduced himself to Rivera and commented that Rivera had initialed the "Advice of Rights" form. Tr. 10, 31. Rivera acknowledged that he had. Tr. 10. Zuk then told Rivera that "the next part of the process was one of the more important parts" because Rivera would need to decide whether to waive his rights and speak to the agents. Id. At this point, Rivera "sat silent" because Zuk "asked him to." Id. Zuk then explained that he had been investigating Rivera for almost a year and that the evidence against him, in Zuk's view, was "overwhelming": Zuk told Rivera that the agents had wiretap intercepts of his phone, consensual recordings made by cooperating witnesses, video surveillance, photographic surveillance and other evidence. Tr. 10. Zuk then told Rivera that he was facing serious charges, and that if he was convicted it was Zuk's belief that he would likely spend the rest of his life in prison. Tr. 10-11. Finally, Zuk told Rivera that he wished to speak with him because based on his investigationhe thought it was likely that Rivera could provide useful information about the other subjects of the investigation including "people from the diamond district and multimillionaires." Tr. 11.
Zuk explained to Rivera that "there were very few ways in the federal system to reduce his exposure to jail time, and that cooperation with the government was one way in which he could do that." Tr. 27.
At this point, according to Zuk's testimony, "Rivera quietly and calmly stated that it was his belief that no matter what he would say to me, he would spend the rest of his life in jail." Tr. 11. Zuk then asked Rivera, if he meant to indicate that he did not wish to speak, and Rivera indicated that was correct.*fn3 Tr. 12. The interview ceased at this point.
The Fifth Amendment to the Constitution provides in part that no "person... shall be compelled in a criminal case to be a witness against himself." U.S. Const. Amend. V. As far back asMiranda v. Arizona, the Supreme Court determined that the "in-custody interrogation of persons suspected of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." 384 U.S. 436, 467 (1966). There, the Court held that "that the prosecution may not use statements made by a suspect under custodial interrogation unless: (1) the suspect has been apprised of his Fifth Amendment rights; and (2) the suspect knowingly, intelligently, and voluntarily waived those rights." United States v. Plugh, 576 F.3d 135, 140 (2d Cir. 2009) (citing Miranda, 384 U.S. at 444-45). The "opportunity to exercise" the right to remain silentand to the presence of counsel "must be afforded to [the suspect] throughout the interrogation," and if such rights are exercised "the interrogation must cease." Miranda, 384 U.S. at 479.
As discussed below, the statement that Rivera seeks to suppress here was made in the context of custodial interrogation, and thus to be admissible at trial, the Government must establish, by a preponderance of the evidence, that the defendant knowingly and intelligently waived his privilege against self-incrimination. Colorado v. Connelly, 479 U.S. 157, 169 (1986). The Court must presume that the defendant did not waive his rights. North Carolina v. Butler, 441 U.S. 369, 373 (1979). The instant motion turns on whether the allegedly inculpatory statement that Rivera seeks to suppress and the Government seeks to introduce-namely, "I believe that no matter what I say to you, I will spend the rest of my life in jail"-constituteda waiver of Rivera's constitutional privilege against self-incrimination, notwithstanding that Zuk understood the statement as an ambiguous invocation of hisright to silence and Rivera confirmed that interpretation to be correct. The statement cannot be at once a waiver and an invocation of the defendant's constitutional rights, and therefore it must be suppressed.
A. Rivera was Properly Advised of his Miranda Rights and did not Invoke them Prior to Zuk's Questioning
As an initial, factual matter, I find that Rivera was properly advised of his rights under Miranda. Casson testified that he personally advised Rivera of his rights by reading them aloud while Rivera read along, and that Rivera acknowledged his understanding of each right by initialing the "Advice of Rights" form in the presence of Agents Casson and Byers. I have no reason to doubt the veracity of this testimony which is corroborated by ...