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United States v. Pierce

United States District Court, W.D. New York

November 20, 2014


For James Kendrick, also known as JD, Defendant: Beverly Van Ness, LEAD ATTORNEY, New York, NY; Bobbi C. Sternheim, LEAD ATTORNEY, Law Offices of Bobbi C. Sternheim, New York, NY; Daniel J. Henry, Jr., LEAD ATTORNEY, VILLARINI & HENRY, L.L.P., Hamburg, NY; Matthew R. Lembke, LEAD ATTORNEY, Cerulli, Massare & Kembke, Rochester, NY.

For Pablo Plaza, also known as Paul, Defendant: Edward David Wilford, LEAD ATTORNEY, New York, NY; Scott M. Green, LEAD ATTORNEY, Rochester, NY.

For Pablo Plaza, also known as Plaza, Defendant: Matthew R. Lembke, LEAD ATTORNEY, Cerulli, Massare & Kembke, Rochester, NY; William T. Easton, LEAD ATTORNEY, Rochester, NY; Kevin W. Spitler, Buffalo, NY.

For Janine Plaza Pierce, also known as Jan, Defendant: Cheryl Meyers Buth, LEAD ATTORNEY, Murphy Meyers LLP, Orchard Park, NY; Matthew R. Lembke, LEAD ATTORNEY, Cerulli, Massare & Kembke, Rochester, NY; Richard A. Reeve, Sheehan & Reeve, New Haven, CT.

For Edwin Negron, also known as E, Defendant: John J. Molloy, LEAD ATTORNEY, West Seneca, NY; David P. Hoose, Northampton, MA.

For Angelo Cruz, also known as Kubiak, Defendant: Herbert L. Greenman, LEAD ATTORNEY, Lipsitz Green Scime Cambria LLP, Buffalo, NY; Peter J. Pullano, One East Main St., Rochester, NY.

For Angelo Ocasio, Defendant: Gilbert R. Perez, LEAD ATTORNEY, Rochester, NY.

For Jeffrey Davis, Defendant: Anne M. Burger, LEAD ATTORNEY, Federal Public Defender, Rochester, NY.

For Zavier Vazquez, Defendant: Michael Patrick Schiano, LEAD ATTORNEY, The Schiano Law Office, Rochester, NY.

For Phillip Barnes, also known as Cream, Defendant: David L. Owens, LEAD ATTORNEY, Rochester, NY.

For Matilda Delgado, Defendant: Jeffrey Wicks, LEAD ATTORNEY, Jeffrey Wicks, PLLC, Rochester, NY.

For USA, Plaintiff: Everardo A. Rodriguez, LEAD ATTORNEY, Rochester, NY.


JONATHAN W. FELDMAN, United States Magistrate Judge.

Preliminary Statement

On July 17, 2012, a federal grand jury returned a Second Superceding Indictment against defendant Janine Plaza Pierce, which includes Counts for federal firearm and drug related crimes, as well as murder while engaged in a drug crime. See Second Superceding Indictment (Docket # 268). By text Order of Judge Charles J. Siragusa dated July 8, 2010, all pre-trial motions have been referred to this Court pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). (Docket # 17). Currently pending before the Court is defendant Plaza Pierce's motion to suppress statements.

Procedural Background

On July 31, 2012, prior to the Government making a determination as to whether it intended to seek the death penalty against the defendant, the Court held a suppression hearing based on defense counsel's stated intention to seek to suppress two statements Ms. Plaza Pierce gave to law enforcement. The Government presented its proof on July 31, but, at the request of defense counsel and without objection from the Government, the hearing proof was held open until after the Government had made a determination as to whether to seek the death penalty. Based on that determination, the defense reserved the right to present proof before the hearing would be closed. Eventually the Government determined that it would not seek the death penalty, defense counsel advised the Court that it would present no further proof and post-hearing briefing was submitted by all parties.

Relevant Facts

The statements at issue in the hearing were given eight days apart to Erie County Sheriff Investigator John Politowski and Detective Fred Vincent. Investigator Politowski was the only witness called by the Government and he testified as to the facts and circumstances of both statements. Politowski retired from the Sheriff's Office in 2002 after 32 years of service.

First Statement-June 9, 1999: Investigator Politowski testified that on June 9, 1999, he and Detective Vincent drove to Rochester in an unmarked police car for the purpose of interviewing the defendant. See Transcript of July 31, 2012 Hearing (hereinafter " 7/31/12 Tr.") (Docket # 300) at pp. 8-9. At the time, Politowski and Vincent were investigating the murder of Francisco Santos, whose body was discovered buried on the Cattaraugus Indian Reservation in May 1999. Upon arriving at her residence, Politowski stated he and Vincent approached the front of the defendant's residence, knocked on her door, identified themselves and asked Ms. Plaza Pierce if she would speak to them. Id. at p. 9. Both Politowski and Vincent were dressed in plain clothes. Politowski testified that he asked Plaza Pierce if she would accompany them to the Rochester Police Department for the interview and further explained that after the interview was complete, law enforcement would drive her back to her residence. Id. at p. 12. The defendant agreed and accompanied Politowski and Vincent to the Rochester Public Safety Building in downtown Rochester. The defendant was never placed under arrest or handcuffed during her encounter with law enforcement.

Upon arrival at the Public Safety Building, Politowski interviewed the defendant in the offices of the Rochester Police Department's homicide unit. Id. at pp. 10-11. The interview took place in a large open room with eight to ten desks scattered about. Id. at p. 11. Ms. Plaza Pierce was never confined or handcuffed. Id. She spoke with Politowski and Vincent for over an hour. Id. at p. 12. A statement was prepared summarizing the information she provided. Id. at p. 14. Ms. Plaza Pierce reviewed the statement, but refused to sign it. Id. at p. 15. Politowski and Vincent then drove the defendant back to her residence. The defendant was away from her home for approximately two hours. Id. at p. 12.

Second Statement- June 17, 1999: On June 17, 1999, Politowski and Vincent returned to Rochester to speak to Ms. Plaza Pierce again. Id. at p. 16. This time, the investigators wanted to show the defendant a photographic array. Id. Upon arriving at her house, they once again knocked on her door and asked if she would be willing to speak to them again. Id. Plaza Pierce agreed and the three of them met outside the defendant's home in the driveway. Id. at pp. 16-17. Politowski testified that during the meeting Plaza Pierce was shown a photographic array and asked if she recognized anyone. Id. at p. 17. Plaza Pierce responded " yes" she did recognize someone's photograph, but refused to say who she recognized or provide any further information. Id. at pp. 17-16. The defendant continued to talk to the investigators and at one point Politowski prepared a hand drawn map " to clarify some of the things" the defendant had stated to them. Id. at pp. 18-19. The meeting on June 17, 1999 lasted approximately 30 to 45 minutes at which point Plaza Pierce went back inside her residence and Politowski and Vincent left. Id. at pp. 19-20.

Cross Examination of Politowski: During Investigator Politowski's direct testimony, he was asked why he did not advise Plaza Pierce of her Miranda rights when she was interviewed on June 9, 1999 at the Rochester Public Safety Building. Politowski replied that he did not read the defendant her Miranda rights because " [s]he wasn't a suspect." Id. at p. 11. On cross examination, defense counsel attempted, over the objection of the Government, to challenge Politowski's assertion that the defendant was not a suspect at the time she was first interviewed by Politowski and Vincent. Id. at pp. 21-22. The Court allowed some questioning on this topic, explaining that the Government had " opened the door" to this line of inquiry by eliciting from Politowski the fact that he did not view Plaza Pierce as a suspect prior to the interview. Id. at p. 22.

In an effort to impeach Politowski's assertion that Plaza Pierce was not a suspect in the Santos murder, defense counsel asked Politowski whether he had any information prior to June 9th indicating that Ms. Plaza Pierce was at the reservation on the night of the murder of Francisco Santos. Id. at pp. 30-31. Politowski was unable to give a definitive answer because he had not reviewed the entire investigative file prior to testifying. Id. Defense counsel requested that Politowski review the entire investigative file so that he could " meaningfully cross-examine this witness on the issue of whether or not Ms. Plaza Pierce was a suspect at the time he approached her residence on June 9th, 1999." Id. at p. 34; see also id. at p. 50 (" I would ask that the witness be permitted to review the entire case file so I can cross-examine him effectively on this issue."). The Government responded that prior to testifying Politowski had reviewed all documents related to his direct testimony which consisted of (1) the unsigned statement of Plaza Pierce that he prepared on June 9th, (2) the map he later prepared based on her interview, and (3) the photo array that was displayed to Plaza Pierce at the June 17th meeting. Id. at p. 69. Politowski testified that he did not take any notes during the June 9, 1999 interview of Plaza Pierce. Id. at p. 53.

Given the fact that the Government questioned Politowski about whether Plaza Pierce was considered a " suspect" at the time of her interviews, the Court directed the Government to review its files to ascertain whether there was any information in the investigative file, either authored by Politowski or involving Politowski, indicating on or before June 17, 1999 that Plaza Pierce was a suspect in the Santos murder. After a break in the hearing so that the Government could review the file, AUSA Rodriguez reported to the Court that based on his review during the recess he " did not see any reference to Jan Plaza Pierce ... before June 9, 1999." Id. at p. 68. In compliance with the Court's ruling however, the Government agreed to continue its search of the investigative file. Mr. Rodriguez stated: " I guess my position is if there's a report out there either prepared by or in the possession of the agent [] Investigator Politowski or his partners referencing Janine Plaza Pierce before June 17th, 1999, I think, given his testimony, if I find it, I'll disclose it." Id. at p. 73. The parties agreed to leave the hearing open for the purpose, among other things, to allow the Government to complete its review of the investigative file. Defense counsel stated that since the hearing is " going to be open and the Government has more searching to do, seems to me that they can conduct a search without taking more court time right now. . . And we can always recall Investigator Politowski if and when there becomes a basis to do so." Id. at p. 74. This Court agreed and stated: " Sounds like a plan. We'll leave the hearing open. If something turns up and there's an issue, let me know and I'll schedule it." Id. at pp. 74-75.


Prior to the commencement of the hearing, defense counsel identified the suppression issue to be determined as " [w]hether or not it was a custodial statement and as well as voluntariness." Id. at p. 6. However, in a post-hearing brief, defense counsel revised her position:

On the record of the suppression hearing as it currently exists, the Defense concedes that the Government has met its burden of showing the voluntariness of the statements [citation omitted] by a preponderance of the evidence. The Government has also met its burden in showing that the statements were not custodial in nature and did not require Miranda warnings [citations omitted].

See Plaza Pierce Memorandum of Law (hereinafter " Def. Memo") (Docket # 447) at p. 8. Instead, Plaza Pierce argues that this Court erred in refusing to direct Investigator Politowski to review the entire investigative file so that he could be " meaningfully" cross-examined as to whether Politowski considered Plaza Pierce a " suspect" at the time of the interviews at issue. Plaza Pierce contends that the failure of Politowski to review the entire investigative file violated Rule 26.2 of the Federal Rules of Criminal Procedure as well as the defendant's right to due process. Oddly, although the Government's post-hearing brief (Docket # 455) was filed eleven days after the defendant's brief, the Government argues as though the defendant is still contesting the Miranda warnings issue and does not address or even mention the defendant's arguments under Rule 26.2 or due process.

Rule 26.2: Both the Jencks Act and Rule 26.2 require the government to turn over witness statements to the defendant if certain conditions are met. The Act provides:

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

18 U.S.C. § 3500(b); see also Fed. R. Crim. P. 26.2 (providing for similar production of witness statements). Statements under both the Jencks Act and Rule 26.2 include:

(1) a written statement made by said witness and signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or
(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.

See 18 U.S.C. § 3500(e); Fed. R. Crim. P. 26.2(f).

This Court believes it has ensured that the Government has complied with the requirements of Rule 26.2. The proceeding at issue was not a trial, but a suppression hearing in which the defense identified the facts at issue to be (1) whether the defendant was in custody and (2) whether the statements made were voluntarily. Only one Government witness was called, Investigator Politowski, and the Government represented that he took no notes during the interviews, and the only documents he generated or used in connection with the interviews were the statement he drafted for the defendant to review, the map he drafted based on the information provided by the defendant, and the photo array displayed to the defendant. There is no dispute that these documents were provided to the defense in advance of the hearing.

In its post-hearing brief, the defendant " requests that the Court reconsider its ruling denying the Defense motion for Inv. Politowski to be given access to his case file and be permitted to review it." See Def. Memo at p. 8. During the hearing, however, the Court granted the defense's request for the Government to disclose any written statement Investigator Politowski authored or would have reviewed prior to June 17, 199 9 indicating that Plaza Pierce was a suspect in their investigation. The Government could not finish its review of the file during the hearing and, at the request of defense counsel, the Court agreed to hold the hearing open for the Government to complete its review. The Court further granted defense counsel's request to schedule further proceedings if notified that additional information had been disclosed which required further cross-examination of Investigator Politowski. No such notification occurred and hence the Court has no reason to schedule further proceedings. To the extent the defense is now arguing that Rule 26.2 requires the Government to disclose the entire investigative file for a witness whose testimony is limited to the facts and circumstances surrounding two discrete interviews of the defendant occurring within days of each other, no legal support has been provided for ordering such disclosure pursuant to Rule 26.2. Accordingly, the Court declines to do so.

Due Process: Couched as a motion grounded in " basic fairness considerations, " the defendant argues that due process requires that the entire investigative file be reviewed by Investigator Politowski so that he could " refresh his recollection of the events surrounding the interviews of Ms. Plaza Pierce." See Def. Memo at pp. 14, 17. However, Investigator Politowski did review that portion of his file pertaining to the two interviews of Plaza Pierce and was able to testify fully enough to allow the defendant to concede that the Government had met its burden of showing voluntariness of the statements and that the defendant was not subjected to custodial interrogation. The only " relevant" subject matter where Politowski could not recall was whether Plaza Pierce was considered a suspect at the time of the interviews. And on this topic, the Court fashioned, with defense counsel's agreement, a plan to allow further proceedings if the Government's review of the file revealed statements of Politowski (or others of which Politowski had knowledge) indicating that Plaza Pierce was a suspect at the time of the interviews in June 1999. Moreover, the defendant's due process rights should be evaluated in the context of the proceeding at issue. In a suppression hearing to determine the admissibility of statements made to law enforcement, the Supreme Court has made clear " that an officer's subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody." Stansbury v. California, 511 U.S. 318, 319, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)(emphasis added). For these reasons, I find the defendant's due process argument to be without merit.


The defendant has conceded that " [o]n the record as it currently exists ... the Government has met its burden of showing the voluntariness of the statements" and that " the statements were not custodial in nature and did not require Miranda warnings." See Def. Memo at p. 8. In the event the defendant's concession does not constitute an abandonment of her motion to suppress the June 1999 statements she made to law enforcement, it is my Report and Recommendation that the defendant's motion be denied. Based on the facts adduced at the suppression hearing, I agree with the defendant that the Government has demonstrated that she was not in custody on either June 9, 1999 or June 17, 1999 and therefore she was not entitled to be advised of her Miranda rights. I also agree with the defendant that the Government's proof has demonstrated that any and all statements she made to law enforcement during either interview were voluntary. Finally, for the reasons set forth herein, the defendant is not entitled to a Court Order requiring Investigator Politowski to review the entire case file and thereafter be subject to additional cross-examination.


Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this Report and Recommendation in accordance with the above statute and Rule 59(b)(2) of the Local Rules of Criminal Procedure for the Western District of New York.[1]

The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance. See, e.g., Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988).

Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).

The parties are reminded that, pursuant to Rule 59(b)(2) of the Local Rules of Criminal Procedure for the Western District of New York, " [w]ritten objections ... shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection, and shall be supported by legal authority." Failure to comply with the provisions of Rule 59(b)(2) may result in the District Court's refusal to consider the objection.

Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the Plaintiff and the Defendant.


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