The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #17.
The defendant, Pravin V. Mehta (defendant or "Dr. Mehta"), is charged in a twenty-eight count Indictment (Dkt. #16) with the distribution and dispensing of various controlled substances and the conspiracy to do so. Dr. Mehta also faces a forfeiture count. What follows is this Court's Decision and Order with respect to that portion of Dr. Mehta's pretrial motion seeking the suppression of statements he made during several investigative interviews. Dkt. ##50 and 63. Specifically, Dr. Mehta asserts that he was never told he had a right not to speak with the investigating officer and further that Dr. Mehta believed he was compelled to answer the officer's questions because he believed the circumstances of the interview had to do with issues relating to his license and employment. Id. For the reasons set forth below, this Court concludes that an evidentiary hearing is necessary to determine whether Dr. Mehta's statements were voluntary within the meaning of the Fifth Amendment to the United States Constitution.
As described in the Affidavit of United States Department of Justice, Drug Enforcement Administration, Buffalo Resident Office ("DEA-BRO") Diversion Investigator Joseph Cowell submitted in support of the Criminal Complaint, on November 13, 2009, the DEA-BRO initiated and coordinated a multi-agency joint investigation into Mehta and his medical practice. Dkt. #1, ¶ 7. The DEA-BRO had received complaints of excessive and unlawful prescribing of controlled substances by Mehta from area law enforcement agencies, including the New York State Police, Niagara County Sheriff Department-Drug Task Force, Niagara Falls Police Department, and the New York State Bureau of Narcotic Enforcement. Id. at ¶ 8. In his Affidavit, Diversion Investigator Cowell further stated:
Historically, the BRO has received similar source and intelligence information concerning MEHTA's over-prescribing of controlled substance "painkillers" from medical professionals, pharmacists, and private individuals within Niagara and Erie Counties. Confidential sources and cooperating defendants have named MEHTA as a source of controlled substances where by [sic] a person can get any drug they want prescribed with little or no medical examinations, and that MEHTA is referred [sic] as "Dr. Feel Good."
Id. Thereafter, Investigator Cowell's Affidavit detailed the over year long investigation which included the review of data, consensually recorded office visits and the analysis of a medical expert retained to provide an opinion concerning whether the prescription of controlled substances by Mehta during the consensually recorded office visits was consistent with the usual course of medical practice and whether the prescribing was for a legitimate medical purpose. Id.
In addition to the aforementioned investigative techniques, prior to any charges being filed against Dr. Mehta, Niagara Falls Police Department Detective Thomas Ewing made several unannounced visits to Dr. Mehta's Niagara Falls medical practice and engaged Dr. Mehta in conversations wherein Dr. Mehta made inculpatory statements. In his original motion, in a section entitled "Motion to Suppress Statements," Dr. Mehta reserved his right to seek suppression of statements and noted, "[w]e note that in an application for a search warrant it was claimed that a Niagara Falls Police Officer questioned Dr. Mehta regarding whether he presigned prescriptions prior to leaving the United States." Dkt. #41, p.7, n.1. Indeed, the Affidavit of Diversion Investigator Cowell submitted in support of the Search Warrant Application detailed two of the conversations that Niagara Falls Police Department detectives had with Dr. Mehta. The first such conversation detailed in the Cowell Affidavit took place on January 14, 2010 and was described by Diversion Investigator Cowell as follows, 42. On January 14, 2010, NFPD Detectives met with MEHTA at MEHTA'S office. MEHTA viewed copies of the previously issued/dispensed prescriptions purportedly issued by him between October, 2009 and January, 2010, for Alicia Sumers. MEHTA stated that he did not recognize the handwriting on the body of the prescriptions (name of patient, date of issuance, and drugs prescribed) as belonging to any of his employees. MEHTA claims the prescriptions were most likely forged even though he recognized that the signature on the prescriptions appeared to be his own. During my investigation of MEHTA, I have become familiar with MEHTA's signature. The signature on the prescription in the name of Alicia Sumers presented to the pharmacy by Bradley on January 13, 2010, appeared to [sic] MEHTA's genuine signature. Given that this prescription was presented around the time MEHTA had pre-signed prescription pads, and given Bradley's connection to the Figurellis, it is likely the prescription presented on January 13, 2010, was one of the "pre-signed" prescriptions. MEHTA stated that his prescriptions are normally filled out (body of the script) by staff members and then signed by himself. MEHTA stated that he did not examine MS. Sumers on the previous day, nor had Ms. Sumers been in the office that day.
Case No. 11-mj-40, Dkt. #1 at ¶ 42. The second conversation with Dr. Mehta detailed in Diversion Investigator Cowell's Affidavit took place on February 10, 2010, 46. On February 10, 2010, Detective Ewing asked MEHTA if he, MEHTA, had left any pre-signed prescriptions in the office prior to leaving for the trip to India. MEHTA paused, and after a few quiet moments, as if he were deciding how to respond, MEHTA stated, "possibly". [sic]
In its response to Dr. Mehta's original motion, the government stated, [t]he defendant did not make any statements to law enforcement officers during or after his arrest on January 27, 2011. In a footnote in his moving papers, the defendant notes that there was a conversation between law enforcement and the defendant during the course of the investigation. In fact, there were at least six such conversations, all occurring within Mehta's office, relating to scripts either bearing Mehta's true signature or a forgery of same. These statements are summarized as follows:
Date Summary of Subject Reference
1/14/2010 Dr. Mehta viewed copies of the Dawn Figurilli Criminal previously issued/dispensed and Shannon Complaint 11-prescriptions purportedly issued by Figurilli M-37 him between October, 2009, and January, 2010, for Alicia Sumers. Dr. paragraph 10 Mehta did not recognize the handwriting on the prescriptions as belonging to any of his employees.
Dr. Mehta claimed the prescriptions were most likely forged even though the signature on the prescriptions appeared to be his own. Dr. Mehta stated that his prescriptions are normally filled out by staff members and then ...