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United States v. Martinez

United States District Court, E.D. New York

January 10, 2013

UNITED STATES of America, Plaintiff,
v.
Heriberto MARTINEZ, Defendant.

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[Copyrighted Material Omitted]

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Loretta E. Lynch, United States Attorney, Eastern District of New York, Central Islip, NY, by John J. Durham, Raymond Tierney, Assistant U.S. Attorneys.

Elizabeth E. Macedonio, Esq., Bayside, NY, for Defendant.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This is a suppression hearing. The attorney for the defendant Heriberto Martinez (the " defendant" or " Martinez" ) moved to suppress the statements made by the defendant to law enforcement officers in four separate jurisdictions. The statements were made in separate interrogations by (1) the New York City Police Department— two sets of statements; (2) the Nassau County Police Department; (3) the Suffolk County Police Department; and (4) the Federal Bureau of Investigation.

For the reasons set forth below, the motions to suppress the statements made by Heriberto Martinez to the four law enforcement agencies are all denied. However, the Government has agreed to restrict its use with regard to a portion of the statement obtained by the Federal Bureau of Investigation.

I. THE HEARING

A. The First New York City Police Department Statement

Detective Benjamin Cintron of the New York City Police Department is with Brooklyn North Night Watch and responds to major cases in late hours. He has spoken Spanish since his youth. His parents are Spanish and he was raised reading, writing and speaking Spanish. As a police officer he has conducted interviews and taken statements in Spanish " close to maybe a hundred" times. (Tr. at 9) [*].

On March 17, 2010, at approximately 7:20 am, Detective Cintron came in contact with the defendant. In Spanish, he introduced himself to the defendant and advised him of his rights. The defendant acknowledged that he understood his rights by initialing the rights form. A copy of the Miranda warning and rights card with regard to the rights given to the defendant by Detective Cintron in Spanish is in evidence as Government Exhibit 4. The Miranda warning card contains the date, the detective's name and is signed by both the detective and the defendant.

Detective Cintron read each right " out loud" to the defendant. Next to each right is the word " si" and the defendant's initials. These rights read to the defendant in Spanish and signed off by him included, " the right to remain silent and not answer any questions." The second right read to the defendant was question two, namely, " Anything you say can be used against you in a court of law." Again, the defendant wrote in " si" . Then the Detective read right number three, namely, " You have the right to remain silent before speaking to the police and have an attorney present during any investigation now or in the future. Do you understand?" Again, the defendant wrote " si" and placed his initials next to the question. The fourth right was then read to the defendant, namely, " If

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you do not have money to pay for an attorney, one will be given to you free of charge. Do you understand?" And again the defendant indicated he did understand, and wrote " si" and his initials next to the fourth advice right.

Then Detective Cintron read the defendant the final advice of rights in Spanish, namely, " Now that I have advised you of your rights, do you want to answer any questions, yes or no." The defendant responded, " okay" , wrote " si" and his initials next to that final right recitation. Then the defendant signed the bottom of the Advice of Rights card with his full signature. The Detective also signed the bottom of the Advice of Rights card and dated the card.

After Detective Cintron advised the defendant of all of his rights in Spanish, and the defendant initialed and signed the " Advice of Rights" card, the detective conducted an interview of the defendant in a room in the 101 Precinct. Detective Cintron asked the defendant about what he knew about a homicide at the beach in the 101 Precinct. Detective Cintron asked the defendant if he would provide a Witness Statement with regard to that homicide and the defendant agreed to do so. Detective Cintron then obtained a legal notepad and a pen and gave it to the defendant and asked him to write out his statement as to the homicide. The defendant then wrote a statement in Spanish, and signed and dated the statement, which was admitted in evidence as Government Exhibit 5. This statement was in the defendant's own handwriting. The statement is dated March 17, 2010 at 9:30 am. Detective Cintron translated the Martinez statement into English, in evidence as Government Exhibit 5A.

Detective Cintron also testified that during his conversation with the defendant he was not handcuffed; he did not appear overly drowsy; he did not appear impaired by alcohol or drugs; and he did not appear to have any difficulty understanding the detective. Also, Detective Cintron testified that he did not threaten or physically assault the defendant. Also, of importance, Detective Cintron testified that at no time while he was with the defendant did he ask to speak to an attorney.

On cross-examination, it was brought out that the detective's parents also spoke English at home, even though he speaks Spanish regularly, both at home and at work. Also, Detective Cintron is not a registered Spanish interpreter. Detective Cintron arrived at the 101 Precinct at 4:20 am; first saw the defendant at 7:20 am; and finished the interview at 9:30 am. He was told that there was a homicide, someone had been cut and that there was a vehicle involved. Detective Villani signed the defendant's statement as a witness. However, in the interview, he was alone with the defendant. In his statement the defendant said that he got off work at 9:00 pm and was drinking beer that night.

B. The Second New York City Police Department Statement

Oscar Ferrufino is a corporate security officer for the Consolidated Edison Company. He formerly was a Detective/Sergeant in the New York City Police Department, Queens County Homicide Squad. Ferrufino speaks English and Spanish. He was born in Bolivia, South America, and his primary language is Spanish. He took classes in high school and college in Spanish. In his career in the New York City Police Department he interviewed victims, witnesses and defendants in Spanish and he advised defendants of their Miranda rights in Spanish.

On March 17, 2010, he was involved in investigating the murder of Mario Quijada. On that date, he was working a 0800 to

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1600 tour. After he reported to his office in the Queens Homicide Office, he was instructed to respond to a murder crime scene in Far Rockaway, Queens. He was told that three individuals were taken into custody. He walked around the crime scene and was shown a hand gun, discovered on the beach, right off the boardwalk. After several hours at the crime scene, he went to the 101 Precinct, arriving at about 12 noon. At the 101 Precinct, he spoke to several other detectives including the murder case officer— Detective Timothy Villani. The three individuals who were taken into custody were being held separately at the precinct. They were Daniel Marroquin, Roger Alvarado and the defendant Heriberto Martinez.

The defendant, who was identified in Court by Ferrufino, was being held in the juvenile room, separated from the two other persons being held. Ferrufino then interviewed Marroquin orally and then got a written statement from him. At approximately 5:00 pm he then went into the juvenile room to speak to the defendant. Having spoken to Detective Benjamin Cintron he knew that he had been advised of his Miranda rights. Also, Detective Cintron showed the defendant a copy of the Miranda warnings given him. He saw the Miranda warnings written in Spanish and signed by the defendant. (Government Exhibit 4 in evidence). Ferrufino went in to interview the defendant accompanied by Dave Moser, another detective from the Queens Homicide Office. Asked to describe the defendant's demeanor, he testified that he was " very calm, relaxed, normal, unemotional...." (Tr. at 216). The defendant did not appear to be tired or sleepy. Ferrufino did not smell alcohol or marijuana on his breath; nor did he have bloodshot eyes. The defendant did not seem to be intoxicated.

Of importance, when asked to explain how he began his interview with the defendant, there was the following testimony:

Q. Could you explain to the Court, you entered the room and how you began the interview with the defendant?
A. I introduced myself, as I always do. I advised him that his warnings were still in effect and told him what we were there to talk about.
Q. You said you advised him that his warnings were still in effect.
Could you explain to the Court exactly what you said to the defendant?
A. I basically reminded him that— I basically— I asked him, do you remember signing these papers? It's still in effect. We're here to talk to you just like the other detectives spoke to you about the incident that occurred the night before.
Q. And when you say signing these papers, were you referring to Government's Exhibit 4, the Miranda waiver form?
A. Correct.

(Tr. at 217).

Ferrufino then asked the defendant about the Quijada murder and went through an oral interview. He questioned the defendant in Spanish regarding the murder. The defendant made certain admissions. Then Ferrufino requested that the defendant himself write exactly what he had just told him, " in a written form in his own writing." The defendant would then write a paragraph and Ferrufino would stop him and orally read the paragraph to make sure it wasn't changed in any way. Then Ferrufino wrote out some questions in Spanish and the defendant wrote the answers in his own writing. The defendant signed each page at the bottom of the written statement. Then Ferrufino

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and Detective Moser also signed that statement, so that there were three signatures on each page. The written statement is Government Exhibit 6 in evidence. Ferrufino translated the statement into English and prepared an English translation of the Spanish statement, which is in evidence as Government Exhibit 6A.

The interview with the defendant commenced at approximately 5:00 pm and ended at approximately 9:00 pm. When the interview commenced, the defendant was offered something to eat or drink. He accepted a soda. During the interview the defendant never complained that he did not understand and the tone of the conversation was calm, " a normal tone, normal conversation, normal talk." (Tr. at 225). The defendant never asked to speak to a lawyer.

On cross-examination, Ferrufino testified that while he was at the 101 Precinct, Detective Cintron told him about his interview with the defendant; that his Miranda rights were read and initialed. He read the statement made by the defendant. Ferrufino interviewed the defendant in a juvenile room; a small room with a desk and a few chairs. The defendant was not handcuffed during this interview. His prior interview with Marroquin took three to four hours. Marroquin had given different versions so that he wanted to interview the defendant even though Detective Cintron had also done so. He did not interview Alvarado. Although he was a Spanish speaking detective, he was never asked to take a test or be certified.

Ferrufino was told by Detective Cintron that the defendant had been advised of his Miranda warnings and that he waived his rights under Miranda. He was also aware that when he interviewed him, the defendant had been up for a long period of time. In a key part of his testimony, however, Ferrufino did not himself give the defendant his Miranda warnings, as stated on cross-examination:

Q. How many times did you give Miranda warnings over the course of your career in the 24 years at the NYPD?
A. Numerous times.
Q. And how long does it take?
A. 10 minutes.
Q. You didn't seek to give Mr. Martinez his Miranda warnings to make sure he understood that he was waiving his rights yet again when he was speaking to you?
A. Detective Cintron had given them to him. I didn't think I had to give it to him again.
I made him aware of it. I reminded him that he signed the form.
Q. You showed him the form, right?
A. No, I didn't show him the form.
Q. You didn't show him the form?
A. I orally reminded him that he had signed the warnings.
Q. You, yourself, didn't see fit to take that extra 10 minutes before you interviewed an individual, 23 year old man who had been up all night, you didn't see fit to take that extra 10 minutes and have him sign a Miranda form; is that fair to say?
A. I didn't see that it was necessary.
Q. You didn't think it was necessary so you didn't do it, right?
A. I didn't do it, no.

(Tr. at 242, 243).

Detective Moser also was there during the interview of the defendant. However, he speaks no Spanish and was there to assist Ferrufino as to the questions being asked.

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The defendant wrote out a statement which is in evidence as Government Exhibit 6. The defendant wrote the first two pages in his handwriting. On page three, Ferrufino wrote some questions and the answers were in the defendant's handwriting. At the bottom of the statement is the time of 2100 which is 9:00 pm. The interview of the defendant took approximately four hours. During that time the defendant had nothing to eat.

Ferrufino wanted to re-interview the defendant because there were inconsistencies in the " two stories" told by Marroquin and the defendant. He told the defendant that Marroquin gave them a different account of the night's incident and they felt that he wasn't being truthful with what he told them. He told the defendant that he has to tell the truth.

When Ferrufino finished his interview, the defendant had been in the precinct for about eighteen hours. During that time there was no discussion about bringing the three individuals to court or seeing a judge. None of the police officers present had any concern about bringing the defendants to court to be arraigned. Nor did the defendant ask if he could call his family so that they would know he was alright; he never asked Ferrufino to make a phone call. Ferrufino did not know if the defendant made a phone call prior to his interview but during the four hours he was with the defendant he did not ask to make a phone call, nor did he ask to use the restroom. Also, the defendant, who was making a second statement that evening about a homicide, " never said what am I going to get out of this." " Can I go home" or " how does this cooperation thing work." (Tr. at 250). When Ferrufino told the defendant about his co-defendant giving a different account, he might have told the defendant " something like it's in your best interest to be truthful." (Tr. at 251). However, Ferrufino testified that he was not in a position to give him a quid pro quo or promise him anything.

On redirect examination, Ferrufino testified that the defendant did not exhibit any symptoms of being under the influence of beer or marijuana. Also, Ferrufino explained that he was not the case officer. He was a supervisor and had nothing to do with the transportation to court. Here, Detective Timothy Villani was the case detective and he was in contact with the District Attorney's Office throughout the night and during the day. Any decision as to when to bring the defendant to court would be made by the District Attorney's Office.

The Court then asked several questions about the defendant's Miranda rights with regard to statement taken by Ferrufino, as follows:

THE COURT: I wold like to clarify something. When you first went in to speak to the defendant, and when you were in there, did you give him his Miranda rights separate and apart from what had been done before?"
THE WITNESS: No, I didn't.
THE COURT: So you used the previous Miranda rights?
THE WITNESS: Correct.
THE COURT: What did you do with it? What did you say?
THE WITNESS: I basically told him, I orally advised him that those— that he had signed that Miranda warning and they were still in effect.

(Tr. at 253-54).

C. The Nassau County Police Department Statement

Roberto De Pietro is a former Nassau County Police detective. He retired after twenty-seven years in March 2012. De Pietro was in homicide for the last ten

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years of his career with the Nassau County Police Department. He speaks Portugese and Spanish. He was born in Brazil, moved to the United States and learned English and then Spanish. He had friends that spoke Spanish and he initially worked in a place where his employer spoke Spanish. During his twenty-seven year career with the Nassau County Police Department, he conducted interviews in Spanish approximately three hundred times. Also, during his career he advised defendants of their Miranda rights in Spanish many times.

In March of 2010, De Pietro was involved in the investigation of the murder of Nestor Moreno, which took place at the El Rancho Bar in Hempstead on March 6, 2010. On March 17, 2010, De Pietro was working a day tour of from 7:00 am to 4:00 pm. He received information from a detective in the 101 Precinct in New York City, that they had a subject in custody for a crime that occurred the night before in Far Rockaway. The subject's name in the gang was Boxer. His true name was Heriberto Martinez and he was the subject in the El Rancho Bar murder. He and Detective Garry then responded to the 101 Precinct in Far Rockaway. They spoke to the detectives involved in the Far Rockaway case and then went to the scene on the beach right off Cedar Boulevard in Far Rockaway and then returned to the 101 Precinct.

At the 101 Precinct, they waited to interview the defendant. On March 17, 2010, at approximately 9:00 pm, Detective De Pietro began the interview of the defendant conducted in Spanish. He advised the defendant of his Miranda rights in Spanish. He read the rights from the PDCN Form 233, Spanish side. The defendant signed the card in two places and he and Detective Garry also signed the card which is in evidence as Government Exhibit 7A. At that point in his testimony, Detective De Pietro made an in court identification of the defendant. The detectives introduced themselves and advised the defendant that they were investigating a murder at the El Rancho Bar in Hempstead, which occurred a few months before. Detective De Pietro described the defendant as calm and cooperative. He did not appear to be tired and did not appear to be high on alcohol or drugs. In advising the defendant of his Miranda rights in Spanish, Detective De Pietro advised him that he had a right to remain silent and that any statement by him can be used against him; that he had the right to have an attorney and that they will assign one for him and pay for the attorney. The defendant heard all these rights in Spanish, agreed to speak to the detectives and signed " si" and his signature in two places on the Form.

Detective De Pietro then proceeded to interview the defendant who made admissions about the murder at the El Rancho Bar. During the interview, Detective De Pietro took notes, which are in evidence as Government Exhibit 7C. He also showed the defendant three photographs of three men. The defendant identified the three men in the photographs and signed their names on the photographs as Michicki, Carletos and Henry. The photographs are in evidence as Government Exhibits 12, 13 and 14. The defendant identified these three men as persons involved in the murder at the El Rancho Bar.

Detective De Pietro speaks Spanish but does not write Spanish. So that after the verbal interview with the defendant and the defendant identified and signed the photographs of the three men, Detective De Pietro contacted Detective Milton Aponte and asked him to come to the 101 Precinct and take a written statement from the defendant. After two or three

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hours, Detective Aponte came to the 101 Precinct. He reviewed the notes of Detective De Pietro and took a written statement from the defendant. It was a six page statement, containing signatures of the defendant, De Pietro and Aponte on each page. The written statement is in evidence as Government Exhibit 7B, with a translation by Detective Aponte, as Government Exhibit 7. These two interview sessions with the defendant lasted about four and a half hours, during which time, Detective De Pietro provided the defendant, himself and Detective Garry with sodas.

In sum, Detective De Pietro testified that he never told the defendant that he would be released if he answered his questions; he had no trouble communicating with the defendant; the defendant was very cooperative and forthcoming; the defendant did not appear to be scared; he was not crying and did not fall asleep. At no time during the interview did the defendant ask to speak to a lawyer.

On cross-examination, Detective De Pietro testified that the initial interview with the defendant occurred on March 17th at 9:00 pm. He completed his initial interview at approximately 11:00 pm. As to his ability to speak Spanish, Detective De Pietro stated that he learned it from friends, in school and when he worked in a gas station where the boss' relative spoke no English. He studied Spanish in high school and took a course in the Nassau County Police Department in the late 1980's, " of how to interview people, give people their rights in Spanish ..." (Tr. at 80). However, he ...


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