United States District Court, W.D. New York
December 17, 2014
UNITED STATES OF AMERICA,
FRED KEYS, Defendant
For Dewayne Gray, also known as Whip, Defendant: John Patrick Pieri, LEAD ATTORNEY, John Patrick Pieri, Esq., Cornell Mansion, Buffalo, NY.
For John Evans, also known as Blaze, also known as Louie, Defendant: Frank M. Bogulski, LEAD ATTORNEY, Buffalo, NY.
For Alexis Mills, Defendant: Gerald T. Walsh, LEAD ATTORNEY, Zdarsky, Sawicki & Agostinelli, Buffalo, NY.
For Dijaon Bland, Defendant: Nathaniel L. Barone, II, LEAD ATTORNEY, Nathaniel L. Barone, II, Esq., Jamestown, NY.
For Philip Brown, also known as Skateboard, Defendant: David R. Addelman, LEAD ATTORNEY, Addelman & Marszalkowski, PC, Buffalo, NY.
For John Hayward, also known as Frizz, Defendant: E. Carey Cantwell, LEAD ATTORNEY, E. Carey Cantwell P.C., Buffalo, NY.
For Demario Devon Nance, Defendant: Michael L. D'Amico, LEAD ATTORNEY, Buffalo, NY.
For Kiara McNamee, Defendant: Michael M. Blotnik, LEAD ATTORNEY, Steiner & Blotnik, Buffalo, NY.
For Erika Gray, Defendant: Herbert L. Greenman, LEAD ATTORNEY, Lipsitz Green Scime Cambria LLP, Buffalo, NY.
For Timothy Finch, Defendant: Brian Melber, Brian M. Melber, LEAD ATTORNEY, Personius Melber LLP, Buffalo, NY.
For Dayshawn Brazier, Defendant: Nelson S. Torre, LEAD ATTORNEY, Buffalo, NY.
For Robert Cavanaugh, Defendant: John J. Molloy, LEAD ATTORNEY, West Seneca, NY.
For Gregory Scott, also known as G Scott, Defendant: Michael S. Deal, LEAD ATTORNEY, DeMarie & Schoenborn, P.C., Buffalo, NY.
For Fred Keys, Defendant: J. Glenn Davis, LEAD ATTORNEY, Law Office of J. Glenn Davis, Buffalo, NY.
For Ranole Goodwin, also known as Ray Ray, Defendant: Clarence Q. Johnson, LEAD ATTORNEY, Law Offices of C. Q. Johnson, West Seneca, NY.
For USA, Plaintiff: Thomas S. Duszkiewicz, LEAD ATTORNEY, U.S. Attorney's Office Federal Centre, Buffalo, NY.
REPORT AND RECOMMENDATION
JEREMIAH J. MCCARTHY,
United States Magistrate Judge.
Defendant Fred Keys is charged in a Superseding Indictment  with a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) and related charges, arising from the activities of the LRG-P, an alleged criminal enterprise whose members engaged in narcotics trafficking and acts of violence. This case was referred to me by Hon. Richard J. Arcara for supervision of all pretrial proceedings . Before me is Key's motion to suppress statements made on April 2, 2013. , ¶ ¶ 24-26; .
An evidentiary hearing was held on November 6, 2013 , at which FBI Special Agent (" SA") Mark Schirching testified, following which the government submitted a post-hearing brief. For the following reasons, I recommend that the motion be denied.
SA Schirching testified that on April 2, 2013 Keys was in custody at the Erie County Holding Center. November 6, 2013 hearing transcript , p. 4. That morning, SA Schirching and Buffalo Police Detective Scott Malec obtained a writ to produce Keys in federal court for an arraignment on the Indictment in this case (id., pp. 3-5).
At approximately 8:30 a.m., they arrived at the holding center, took custody of Keys, and drove him to the parking lot of the FBI office (id., p. 5). On the way to the parking lot, SA Schirching let Keys " know that there was an indictment against him, which [Keys] said he knew about and he kept mentioning there was lies in it" (id., p. 6). Once parked in the lot, SA Schirching intended to Mirandize Keys in the vehicle, so he pulled out form FD-395 (gov. ex. 1 ) containing printed Miranda rights (id., pp. 5-6, 13-14). SA Schirching testified that if Keys had indicated that he was willing to be interviewed after acknowledging his rights, he would have brought Keys into an interview room for questioning (id., p. 14). Instead, " as I took the form out and . . . tried to read directly from the form, . . . Keys kept interrupting and saying things related to the case" (id., p. 6). SA Schirching read not " more than a line or two into the form" when Keys " interrupted and . . . said some things about the case" (id.). In response, SA Schirching warned Keys " that anything he said could be used against him" (id.). Keys " said that he knew and that what he was telling [them] was a freebee" (id., pp. 6, 8). He continued by saying " John Evans or Blaze did not give him the gun", he was " present in the cab when Amir Chambers was murdered", and " he disposed of the firearm after the murder was committed" (id., pp. 7, 15). When asked how long the exchange in the vehicle lasted, SA Schirching responded, " [t]en minutes or so"  (id., pp. 8, 15-16). SA Schirching completed reading Keys his Miranda warnings just before 9:00 a.m. (id., p. 8).
Immediately " after [he] finished reading the form without interruptions", the agent asked Keys " if he understood and he said, yes" (id., pp. 9, 16). He then asked Keys " if he was willing to answer questions without a lawyer. Mr. Keys stated that he would only answer questions if he could be promised the amount of time that he would spend in prison. When [SA Schirching] explained to him that promises can't be made, . . . he said that he did not want to answer any questions" (id., p. 9). At that point questioning ceased, and the agents " never asked him a single question about the case" (id., p. 10). Keys, however, " continued to talk about the case even after he said he didn't want to talk" (id., pp. 10-11). He " continued to talk as [they] drove" to the federal courthouse (id., p. 19).
SA Schirching testified that aside from asking Keys " if he wanted to waive his rights and speak to [them] without an attorney", the agents " never questioned him at all" on April 2, nor did they tell him " anything . . . concerning the case itself" other than that he had been indicted in the conspiracy to commit murder count (id., pp. 17-18). SA Schirching testified that any exchanges not memorialized in his form FD-302 (gov. ex. 2 ) consisted of " pleasantries and whatnot on the ride from the Holding Center to the FBI Office" (id., pp. 13, 18-19).
Although Keys did not testify at the hearing, in support of his motion Keys submitted an Affidavit , stating that on April 2, 2013 while he was incarcerated in the Erie County Holding Center awaiting a court appearance on a pending criminal case, he was " picked upon by a Buffalo Police Officer and an FBI Agent for transport to the Federal Court Building" (id., second unnumbered paragraph). He alleges that he was then placed in a vehicle and " driven to a parking lot near the Federal Court building", where he was told to get out of the car (id., third unnumbered paragraph). He also alleges " [t]hey told me that they knew what happened in this case and that I would not believe how many people are working with them and cooperating with them and that I needed to help myself" (id.). In response, he alleges " [t]hat he told them that he knew nothing, and he wasn't getting out of the car and wasn't going into that building and that he wanted a lawyer. I was never given my rights" (id., unnumbered fourth paragraph).
Keys initially moved to suppress his April 2, 2013 statements by asserting that they were made in response to a promise " that if he cooperated with their investigation into the activities of the LRG-P organization, that he would not be charged" . , ¶ ¶ 24-26. After the government responded that Keys' motion was deficient in that it was not supported by an affidavit or declaration from one with personal knowledge (, p. 6), Keys submitted an Affidavit , which fails to state that he was told that he would not be charged, nor does it allege that he made any statements in response to such a promise. Instead, his Affidavit centers on his allegation that he was never read his Miranda warnings (id., unnumbered paragraph 4). In response to Keys' Affidavit, the government consented to a hearing . Although I gave both parties the opportunity to submit post-hearing briefs, only the government made a submission , in which it argued that both after and while being apprised of his Miranda rights, Keys voluntarily made certain statements (id., p. 5).
A. Were Keys' Statements the Result of a Custodial Interrogation?
" A person in custody is entitled to Miranda warnings prior to official interrogation" . United States v. Miller, 116 F.3d 641, 679 (2d Cir. 1997). However, " Miranda . . . is inapplicable, for spontaneous statements which are not the result of 'official interrogation' have never been subject to its strictures" . Wolfrath v. LaVallee,
576 F.2d 965, 973 n. 6 (2d Cir. 1978) ( quoting Miranda v. Arizona, 384 U.S. 436, 478 (1966)). Moreover, " [i]f, after receiving Miranda warnings and invoking the right to counsel, 'the accused himself initiates further communication, exchanges, or conversations with the police, ' . . . those unsolicited statements are admissible" . United States v. Miller, 116 F.3d 641, 680 (2d Cir. 1997), cert. denied, 524 U.S. 905 (1998) ( quoting Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)). " Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence" .
Miranda, 384 U.S. at 478.
The government bears the burden of proving that the statements were made spontaneous, i.e. without custodial interrogation. See United States v. Taylor, 2011 WL 4357350, *6 (S.D.N.Y. 2011). " [C]ourts . . . consider police conduct in light of the totality of the circumstances in assessing whether the police 'should have known' that their actions 'were reasonably likely to elicit an incriminating response.'"
Acosta v. Artuz, 575 F.3d 177, 191 (2d Cir. 2009) ( quoting Rhode Island v. Innis, 446 U.S. 291, 303 (1980)).
Even assuming that Keys was not Mirandized as he alleges, the admissibility of his statements still depends on whether he was interrogated prior to or after requesting counsel. In determining whether Keys was subjected to interrogation, " this case turns, as many do, on the issue of credibility" . United States v. Bayless, 921 F.Supp. 211, 213 (S.D.N.Y.1996). " It is within the province of the district court as the trier of fact to decide whose testimony should be credited . . . . And as trier of fact, the judge is entitled, just as a jury would be . . . to believe some parts and disbelieve other parts of the testimony of any given witness." Krist v. Kolombos Rest. Inc., 688 F.3d 89, 95 (2d Cir. 2012).
There being no claim in Keys' Affidavit that he was subjected to any questioning, and having observed SA Schirching's testimony, which I find to be credible, the government has met its burden of establishing that Keys' statements were made spontaneously and not in response to any interrogation.
B. Were Keys' Statements Voluntary?
The government acknowledges that it also bears the burden of proving, by a preponderance of the evidence, that any statements subsequent to the Miranda waiver were voluntary. See Government's Post-Hearing Submission , p. 5. In determining whether statements are voluntary court to look to " the totality of the circumstances surrounding the statements" . United States v. Siddiqui, 699 F.3d 690, 707 (2d Cir. 2012), cert. denied,
__ U.S. __, 133 S.Ct. 2371 (2013). " In applying the totality of the circumstances test, those factors that a court should consider . . . center around three sets of circumstances: (1) the characteristics of the accused, (2) the conditions of interrogation, and (3) the conduct of law enforcement officials." Green v. Scully, 850 F.2d 894, 901 02 (2d Cir. 1988), cert. denied, 488 U.S. 945 (1988).
Taking these factors into consideration, I do not find that the government applied coercion or improper inducement to overbear Keys' will. As discussed above, I credit SA Schirching's testimony that his statements were not the product of any inducement. Indeed, Keys' Affidavit does not indicate that he was compelled or coerced into making any statements. At most, he alleges that " [t]hey told me that they knew what happened in this case and that I would not believe how many people are working with them and cooperating with them and that I needed to help myself" Keys' Affidavit , third unnumbered paragraph. However, even if these statements can be construed as being coercive, " [a]bsent his live testimony and the opportunity for cross-examination, the Court cannot assess his credibility or truthfulness . . . I credit the testimony of the live witnesses over the contents of defendant's affidavit" . United States v. Chisholm, 2008 WL 5453242, *2 (E.D.N.Y.2008), adopted as modified, 2009 WL 299313 (E.D.N.Y.2009); see also United States v. Romano, 2013 WL 5278420, *5 (E.D.N.Y. 2013).
Therefore, I conclude that Key's statements were voluntary, and recommend that his motion to suppress be denied.
For these reasons, I recommend that Keys' motion to suppress (, ¶ ¶ 24-26; ) be denied. Unless otherwise ordered by Judge Arcara, any objections to this Report and Recommendation must be filed with the clerk of this court by January 5, 2015 (applying the time frames set forth in Fed. R. Crim. P. (" Rules") 45(a)(1)(C), 45(c), and 59(b)(2)). Any requests for extension of this deadline must be made to Judge Arcara. A party who " fails to object timely . . . waives any right to further judicial review of [this] decision" . Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Moreover, the district judge will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not, presented to the magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 59(b)(2) of this Court's Local Rules of Criminal Procedure, " [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", and pursuant to Local Rule 59(b)(3), the objections must include " a written statement either certifying that the objections do not raise new legal/factual arguments, or identifying the new arguments and explaining why they were not raised to the Magistrate Judge" . Failure to comply with these provisions may result in the district judge's refusal to consider the objection.