The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions.
The defendant, Orville Rodriguez, is charged, along with a number of co-defendants, with having violated 21 U.S.C. § 846 (Count 1) and a forfeiture count pursuant to 21 U.S.C. §§ 853(a)(1) and 853(a)(2) (Count 19). (Docket #1).
The defendant has filed an omnibus motion (Docket #217) wherein he seeks, among other things, "suppression of statements" that he made on October 26, 2009. The government has submitted a response to this motion and particular request of the defendant. (Docket #224).
An evidentiary hearing on the defendant's motion to suppress his statements of October 26, 2009 was held by this Court on April 1, 2010 and a transcript of those proceedings was filed on May 4, 2010. (Docket #235). Counsel for the defendant and the government were given thirty (30) days from the date of the filing of the transcript (Docket #235) to file a post hearing memorandum in support of their respective legal positions. Since neither party filed a post-hearing memorandum, this Court took the matter under advisement on June 5, 2010.
On October 26, 2009, the defendant was on New York State ("NYS") Parole, having been convicted of robbery, and was required to report to the Parole Office as a "routine report to his parole officer to verify his residence; to verify whether or not he had any police contact or used any drugs or alcohol." This was a "mandatory report." (T. 17-18). At that time, NYS Parole Officer Kyle Milbrand was aware that a federal indictment (Docket #1) had been filed against the defendant. (T. 18). When the defendant reported to the Parole Office on October 26, 2009, Officer Milbrand advised him that they "were going to take him over to his residence to search and make sure that he was adhering to his conditions of parole, to his release conditions." (T. 19).
The defendant was transported by parole officers to his approved parole residence at 2 Sandra Drive in Cheektowaga, New York on October 26, 2009. Upon arrival there, they "encountered" the defendant's girlfriend and "advised her that [they] were there to conduct a parole search of the residence." (T. 20). While the defendant was seated in the living room of the residence, the parole officers conducted a search of the premises, whereupon "several sharp-edged weapons, some knives, some swords and some brass knuckles" were discovered in the defendant's bedroom and in a computer room. Also discovered and seized during this search were "a scale and a small white baggy containing some cocaine." (T. 21). As a result of this finding, Milbrand contacted S.A. Galle of the FBI who, along with other FBI agents, came to the scene at 2 Sandra Drive on October 26, 2009. (T. 21-22, 52).
When S.A. Galle arrived, Parole Officer Milbrand advised him of the search of the premises and the discovery of contraband. (T. 53). S.A. Galle then engaged in "conversation" with the defendant after identifying himself as an FBI Agent who "was assigned to the case regarding the 31 Gang." S.A. Galle advised the defendant that he had been indicted and that he wished to speak to the defendant about the 31 Gang because the defendant "had been indicted because of his alleged involvement with the case." (T. 53). The defendant "informed [him] that his case had been dismissed; that was a long time ago, and that he didn't have any knowledge of what the case specifics were." (T. 53). In order to make the defendant aware of the fact "that the case was not dismissed because of lack of evidence," S.A. Galle "spoke to him about his involvement in the case and individuals in the case and some specific details with regard to the people that [S.A. Galle] was aware that [the defendant] knew."
(T. 54). S.A. Galle further advised the defendant that "it was not something that was going away; that he was indicted and he would have to answer to that." (T. 54). At that point, the defendant "indicate[d] that he knew what [Galle] was talking about." (T. 54). S.A. Galle then informed him that there had been a long investigation and that "a lot of evidence had been recovered," that there were "telephone intercepts, seized evidence, and several people had already given witness statements, and many, many interviews."
The defendant "indicated" that "he knew what [Galle] was talking about" and that he knew the individuals mentioned. (T 56). S.A. Galle then advised the defendant that he had the option of speaking to them in private away from his residence and his girlfriend, or he did not have to speak to them and "he would be transported to the Erie County Holding Center" since they had "an arrest warrant" for his arrest. S.A. Galle "informed [the defendant] that if he was willing to provide information to the government, that [he] would pass the information that [the defendant] provided as well as the fact that he was cooperating along to the prosecutors, to make them aware of it, and to begin the forward process of, hopefully, establishing a plea agreement." (T. 55, 62). The defendant chose to speak to the agents. (T. 56, 82-83). Arrangements were then made with Parole Officer Milbrand to have the defendant brought back to the NYS Parole Office where the agents could interview him in private. (T. 57). The defendant was placed in custody and transported to the NYS Parole Office by Parole Officer Milbrand. (T. 58).
The defendant was taken to a private conference room in the NYS Parole Office in handcuffs in the company of Parole Officer Milbrand, S.A. Galle and another agent. (T. 47, 57-58). Thereupon, S.A. Galle advised the defendant of his rights by reading from an FBI FD-395 form which he described as a Miranda warning form.
(T. 58-59, 89, 93, 94). After reading the warnings and rights contained on the form to the defendant, the defendant indicated that he understood his rights and signed the form. (Government Exhibit 1)*fn2 . (T. 58-59). He and Parole Officer Milbrand signed the form as witnesses to the defendant's execution of the form. (T. 60).
The defendant never indicated that "he didn't understand what [S.A. Galle]" had read to him when advising him of his rights and giving him the Miranda warning; nor did the defendant ever request that his attorney be contacted or that an attorney "be present before, during or after the interview." (T. 61-62, 97-98). S.A. Galle, in the company of Parole Officer Milbrand, then interviewed the defendant for approximately one hour and made notes of the interview as it was conducted. After the interrogation of the defendant was completed, S.A. Galle transformed his interview notes into a written FD-302 report. (See Government Exhibit 2). (T. 63). The defendant was transported to the Erie County Holding Center. While waiting to be processed at the Erie County Holding Center, the ...