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United States v. Coronado

United States District Court, W.D. New York

July 10, 2017

United States of America
v.
John W. Coronado, Jr., Defendant.

          REPORT AND RECOMMENDATION

          Hon. Hugh B. Scott United States Magistrate Judge.

         I. INTRODUCTION

         On the night of December 16, 2009, Jabril Harper (“Harper”) was kidnapped in Buffalo, New York, robbed, driven across town to Roosevelt Park, and shot dead. Law enforcement officers believed that defendant John Coronado (“Coronado”) had something to do with Harper's murder, and in February 2012, they wanted to talk to him. Law enforcement officers served Coronado with a grand jury subpoena as part of their desire to talk to him. Coronado agreed to a voluntary interview but quickly cut it short when he invoked his right to remain silent and requested an attorney. The Court appointed an attorney in response to the grand jury subpoena. Within a few weeks, the Government filed the original indictment in this case without bringing Coronado before a grand jury. The original indictment named three people who are codefendants in this case but not Coronado.

         About two and a half years later, the Government filed a superseding indictment that added Coronado and another person to the original three defendants; the superseding indictment also contained additional charges. A few days later, law enforcement officers arrested Coronado and interrogated him at Buffalo Police headquarters. The interrogation lasted over two hours. Coronado signed an advice of rights and waiver form at the beginning, never explicitly invoked his right to remain silent, and never explicitly requested an attorney. Coronado made reference to having an attorney appointed for him in 2012 regarding Harper's murder, but could not remember the attorney's name. After some lengthy give-and-take with the interrogating officers, Coronado made incriminating statements about the night of Harper's murder. Coronado was arraigned the next day, and for nearly two years, he made no reference to the attorney appointed for him in 2012.

         Following changes of counsel and an apparent change in pretrial strategy, Coronado filed pretrial motions on September 13, 2016 including a motion to suppress the statements from his interrogation. (Dkt. No. 321 at 2-7.) For the first time, in this motion to suppress, Coronado argues that the counsel appointed to him in 2012 had an attorney-client relationship with him that continued through the present time. Coronado argues that he invoked his right to counsel early in the interrogation. On this basis, Coronado argues that the law enforcement officers' decision to persist with the interrogation violated the Sixth Amendment and Fifth Amendment, along with New York State ethical rules that prohibit attorneys from direct communication with named parties who have counsel. The Government counters that any attorney-client relationship that Coronado had in 2012 expired before the custodial interrogation. The Government notes that if Coronado really believed that he still had an attorney-client relationship at the time of his interrogation then he could have requested that attorney at the interrogation. Coronado, in the Government's view, also had nearly two years to tell the Court and other attorneys appointed for him that he already had counsel.

         The Court has arranged for numerous filings, arguments, and hearings concerning Coronado's suppression motion, with the most recent filings occurring on June 16, 2017. After considering the entirety of the record, and for the reasons below, the Court respectfully recommends denying Coronado's motion.

         II. BACKGROUND

         The Court will presume familiarity with the case based on the combined Decision and Order and Report and Recommendation that it issued on July 6, 2016 for the omnibus pretrial motions that Coronado's codefendants filed. (Dkt. Nos. 301, 302.) At that time, Coronado did not file any pretrial motions of his own, with two exceptions. Coronado did file a general joinder of all other codefendants' motions. (Dkt. No. 216.) Coronado also filed a motion for an immediate trial. (Dkt. No. 229.) On March 23, 2016, after Coronado had filed those documents, the Court replaced prior appointed counsel with attorney Alan Hoffman. (Dkt. No. 268.) With new counsel on board, Coronado filed his own omnibus pretrial motions after all. (Dkt. Nos. 321, 322.) The Court has issued a separate Decision and Order to address Coronado's non-dispositive motions. Given the extensive filings and proceedings that occurred regarding Coronado's suppression motion, the Court has decided that the suppression motion merits treatment in its own writing.

         In the sections below, the Court will recite only the facts of the case that pertain to the suppression motion (Dkt. No. 321 at 2-7).

         A. Grand Jury Subpoena and CJA Appointment

         This case concerns allegations that Coronado and the other defendants kidnapped, robbed, and killed Harper on December 16, 2009; and kidnapped and robbed a second victim known only as “M.S.”; all as part of a violent conspiracy that violated the Hobbs Act. Some basic information about the underlying crimes first appeared in the complaint that the Government filed against a co-defendant on February 23, 2012. (See Case No. 12-MJ-2037, Dkt. No. 1.) According to the Government, “Harper was known to BPD [Buffalo Police Department] to be engaged in possessing and distributing drugs out of the Shoreline Apartments in Buffalo, New York. Harper's criminal history includes arrests for criminal possession of a weapon and possession of a controlled substance.” (Id. at 3.) The Government then explained in the complaint how then-undisclosed accomplices ordered Harper at gunpoint to accompany them to a van outside Harper's residence, where they assaulted him and robbed him. (Id. at 5.) After the assault and robbery, Harper was placed in the trunk of a different vehicle, driven to Roosevelt Park, and shot in the head. (See Id. at 6-7.) The original indictment, filed on March 6, 2012, contained Hobbs Act charges against only codefendants Ernest Green, Rodshaun Black, and Daniel Rodriguez. (Dkt. No. 1.)

         Procedural events preceding the original indictment started forming the basis for Coronado's suppression motion. During their investigation, law enforcement officers came across Coronado's name and received information suggesting that he played a role in Harper's murder. The officers decided that they wanted to speak to Coronado, and they were contemplating having him testify before a grand jury. (Dkt. No. 384 at 58.) On or around February 10, 2012, law enforcement officers served Coronado with a grand jury subpoena returnable on February 28, 2012. (Dkt. No. 328-2.) At some point over the next few days, Coronado voluntarily accompanied officers to the United States Attorney's Office for an interview. Coronado did not feel comfortable answering the questions asked of him, and he requested an attorney. (Dkt. No. 384 at 47; Dkt. No. 434 at 106.) On February 14, 2012, Coronado came before the Court for an ex parte determination of his eligibility for assigned counsel. Assistant Federal Public Defender Tracy Hayes[1] accompanied Coronado. The Court conducted a brief colloquy on the record; the Court at the time referred mistakenly to a target letter, but the Government since has confirmed that Coronado never was issued a target letter. The Court thus would have been referring to the subpoena. Following the colloquy, the Court found Coronado eligible and assigned Mr. Hayes's office as counsel. The Court did not cite explicit provisions at the time, but the Federal Public Defender's appointment would have been pursuant to the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, as well as Section IV(A)(9) of this District's CJA Plan, which allows for representation for any financially eligible person who “is the subject of a federal grand jury subpoena and risks self-incrimination, loss of liberty or contempt of court.” Coronado's file made its way to Assistant Federal Public Defender Fonda Kubiak, who represented Coronado from February 14 to February 28, 2012. (Dkt. No. 363 at 21.)

         During Ms. Kubiak's brief representation of Coronado, two events occurred. On February 28, 2012, Ms. Kubiak sent a letter to the Assistant United States Attorney (“AUSA”) working on the case at the time, Robert Moscati. (Dkt. No. 321-1 at 10-11.) In the letter, Ms. Kubiak informed AUSA Moscati that, while Coronado was told that he was not a target of the investigation, he would nonetheless refuse to testify before a grand jury on Fifth Amendment grounds. On the same day, Ms. Kubiak confirmed that her office had a conflict representing Coronado. (Dkt. No. 363 at 21-22.) Ms. Kubiak learned of the conflict when reading the pre-indictment complaint in this case. (Dkt. No. 363 at 24.) Ms. Kubiak's office then arranged to replace her with Kevin Spitler, a private attorney assigned to Coronado under the CJA and this District's CJA Plan. Despite representations to the contrary, Ms. Kubiak felt that Coronado was in fact a target of the investigation. (Dkt. No. 363 at 26; see also Id. at 36 (“During the course of my conversations with Mr. Moscati, it was clear that he was a target; that he was likely to be indicted as a co-conspirator in this case . . . . So although Mr. Moscati's initial representation to me was that he was not a target, it was clear that he was a target and that if he didn't come in to testify, that he would be indicted.”).) The assignment letter that Mr. Spitler received informed him that he would represent Coronado “for a subpoena to testify before the grand jury.” (Dkt. No. 439-1 at 1.) The Court signed a voucher that authorized Mr. Spitler to bill for his services in accordance with CJA procedures. (Dkt. No. 321-1 at 8.)

         What happened after Mr. Spitler's assignment has been the subject of some dispute between the parties. Coronado never was brought before a grand jury, and the Government filed the original indictment in this case on March 6, 2012 without naming him as a defendant. (Dkt. No. 1.) Coronado has submitted in an affidavit that he “was told that [Spitler] would continue to represent me as concerns the kidnapping and killing of Harper.” (Dkt. No. 321 at 12.) Mr. Spitler has submitted his own affidavit in which he asserted “that my representation of Coronado would continue and that he was exercising his Fifth Amendment right to neither testify nor give a statement. That my representation of Coronado did not cease, and I have remained as his attorney since my assignment and up to the present date.” (Dkt. No. 321 at 14.) In that same affidavit, however, Mr. Spitler conceded that “I received no notification of his indictment until contacted by his present attorney, Alan S. Hoffman, Esq., to whom I turned my file over on August 15, 2016 and delivered to him by his paralegal on August 16, 2016.” (Id.; see also Dkt. No. 384 at 12 (“I have to state that I was unaware that he [Coronado] had been indicted, and I was unaware that he had been arrested.”).) These two statements, in consecutive paragraphs of Mr. Spitler's affidavit, are in tension with, if not in outright contradiction of, each other. If Mr. Spitler had been Coronado's counsel “up to the present date” then surely Coronado or his family would not have let two years of litigation pass with different attorneys. (See also Dkt. No. 384 at 34 (“Q. And when Mr. Coronado was initially arrested in December [2014]-I don't mean to trick you with the dates. I think from my notes I think it was December 15th. When he was arrested on the [superseding] indictment, he never called you and said he was arrested? A. No.”).) Coronado also would not have let his attorney find out about his indictment third-hand through other attorneys.

         Two other points reinforce the Court's skepticism. Mr. Spitler submitted no CJA billing in connection with Coronado. (See also Dkt. No. 384 at 23 (“In 2015 I wrote a note to myself, there seems to be no activity, I'm closing my file, and I looked at the number of hours and determined it wasn't worth filing a voucher for.”).) Mr. Spitler more or less decided that the matter for which he had been appointed had run its course. (See Dkt. No. 384 at 17 (“Having reviewed my time sheets, I know that there was a time when I-I think-it was in 2015 when I decided that nothing was going to happen with the file, and I was going to close it, because I hadn't-I hadn't been contacted by the client, by the U.S. Attorney, by anyone else.”); see also Id. at 23 (“My notes indicate I was assigned on the 28th. I reviewed materials on February 29th of 2012. I met with my client early part of March, either March 1st or March 5th. Then I may have had one other conversation that I referenced to the conversation in 2013. March of 2013. Q. And that was probably the last time that you had done something on the case? A. Correct.”).) Additionally, and as will be discussed further below, Coronado could not even remember Mr. Spitler's name when he was interrogated after his arrest on December 22, 2014. At most, once the original indictment issued, Coronado and his family might have made an occasional brief inquiry to Mr. Spitler as to whether anything further had happened with the investigation. (Compare Dkt. No. 384 at 13 and Dkt. No. 434 at 108 with Dkt. No. 384 at 28 (“I don't have a recollection of him coming in my office. Whether or not he-he did just stuck his head in at some point and said ‘What's going on?' and I said ‘Nothing, ' or if he called me and said, ‘What's going on?' and I said, ‘Nothing, ' I don't have an independent recollection. I have nothing in my notes to indicate that that occurred.”).)

         B. Superseding Indictment, Arrest, and Counsel

         The investigation of Coronado continued after the filing of the original indictment. As can be seen in the interrogation video discussed below, law enforcement officers continued to talk to potential sources and continued to gather information about Harper's murder. Meanwhile, the file in the United States Attorney's Office passed from Moscati to AUSA Frank Pimentel (“Pimentel”). Pimentel might not have been updated along the way about new information concerning the investigation. (See Dkt. No. 434 at 43.) In any event, by December 2014, the Government made the decision to present the case to a grand jury for a superseding indictment that included Coronado. (Dkt. No. 434 at 42.) The grand jury issued a superseding indictment that the Government filed under seal on December 12, 2014. (Dkt. No. 155.) In the superseding indictment, the Government included Coronado in all of the counts (Counts 1 through 5) that pertained to the kidnapping and murder of Harper on December 16, 2009.

         Law enforcement officers arrested Coronado on December 22, 2014 and brought him to Buffalo Police headquarters for interrogation. The Court will address the interrogation in more detail below. The next day, December 23, 2014, Magistrate Judge H. Kenneth Schroeder, Jr. covered for this Court and arraigned Coronado. John Humann of the Federal Public Defender's Office took the assignment to represent Coronado.[2] During the arraignment, Magistrate Judge Schroeder inquired whether Coronado sought assigned counsel and asked explicitly, “Do you plan on hiring an attorney of your choice? Are you asking the Court to assign an attorney to represent you because you cannot afford to hire an attorney?” (Dkt. No. 364 at 4.) At no time during the arraignment did Coronado or Mr. Humann say anything to the effect that Coronado already had counsel, namely Mr. Spitler.

         As the case unfolded, Coronado would prompt additional proceedings regarding his representation. On June 17, 2015, Coronado expressed concern about the quality of his relationship with Mr. Humann. (Dkt. No. 212.) Coronado never mentioned Mr. Spitler as a prior counsel. On October 22, 2015, the Court granted the motion by Mr. Humann to withdraw as counsel. (Dkt. No. 242.) During an extended colloquy that the Court conducted that day, Coronado never mentioned Mr. Spitler. Mr. Humann mentioned his concern about Coronado's approach to changing counsel; he was concerned specifically that Coronado, if convicted, would face a minimum sentence of 30 years and a maximum of life. On October 26, 2015, the Court appointed Michael Deal as CJA counsel for Coronado. (Dkt. No. 244.) Coronado never mentioned Mr. Spitler. Finally, over the course of several proceedings involving a conflict of interest with Mr. Deal, the Court replaced Mr. Deal with Mr. Hoffman and even had to confirm that Mr. Hoffman had no conflicts. (Dkt. Nos. 258, 259, 260, 266, 268, 271, 292.) At no time during any of these proceedings did Coronado mention Mr. Spitler, request Mr. Spitler's assistance, or otherwise indicate that he already had counsel.

         From the above information, the Court concludes that Mr. Spitler's representation of Coronado for possible grand jury proceedings expired prior to December 2014. There is no need to pinpoint a precise date. The Court appreciates Mr. Spitler's willingness to have jumped back into the case had Coronado ever asked him to do so. Nonetheless, the relationship between Mr. Spitler and Coronado faded gradually as the threat of grand jury proceedings dissipated. By December 2014, no further communications were occurring, and Coronado did not even think to call Mr. Spitler upon his arrest. An email message generated by the Government shortly after the original indictment reflects how the attorney-client relationship would have faded away gradually. On April 27, 2012, Moscati wrote to FBI Special Agent Eric Sakovics (“Sakovics”) about Coronado. Moscati wrote, “As you may recall, Coronado is represented by counsel-do you think it would be helpful, or detrimental, to call his atty and advise him as to what we've learned. To the extent LE is out there looking for him, I wouldn't want to alert Coronado to the fact we know he's armed and are [sic] looking for him-perhaps that would make him more dangerous (??). I guess there are arguments both ways, so wanted to get your thoughts.” (Dkt. No. 372-1 at 2; see also Dkt. No. 384 at 48.) This email message was potentially interesting earlier because it post-dated the original indictment and potentially provided a clue about Coronado's continued representation. In light of a full record, the Court concludes that the Government was only taking a precaution a short time after the original indictment, since the possibility of compelling testimony from Coronado was still somewhat fresh. (See Dkt. No. 384 at 49.) The email message does not suggest that Mr. Spitler's representation continued through the time of Coronado's arrest over two years later.

         C. Interview of December 22, 2014

         Following his arrest, law enforcement officers transported Coronado to Buffalo Police headquarters for interrogation. The interrogation began in the early evening and lasted over two hours. Sakovics, along with Buffalo Police Detectives Mary Evans (“Evans”) and Michael Mordino (“Mordino”), conducted the interrogation and recorded it; the video recording of the interrogation entered into evidence at the suppression hearing as Defense Exhibit E. Coronado has insisted that the interrogation was improper and coercive because of a mix of Fifth and Sixth Amendment violations. (See Dkt. No. 436 at 7 (“Even the interrogation of unrepresented indicted custodial defendants remains questionable, yet alone for a represented client defendant. Two panels in the Second Circuit disapproved of pre-arraignment interviews, especially upon the poor and unrepresented. This Court is urged to consider this disapproval as part of the totality of the circumstances.”). At least in part, Coronado seems to want to make a policy argument about the nature of custodial interrogations. For the sake of a full record, in the event of appellate review and to address Coronado's arguments thoroughly, the Court has prepared the following summary of what it believes are the highlights of the video. The times noted refer to the timestamp that appears throughout the video.

         • 18:51:40: Video begins. Evans and Sakovics bring Coronado into the interrogation room in handcuffs; Evans removes the handcuffs; Evans and Sakovics leave briefly.

         • 18:56:21: Evans and Sakovics enter the room with Mordino to begin the interrogation.

         • 18:57:00: Sakovics explains to Coronado that “before we start talking, ” he has a form that he wants Coronado to sign. The form is a Miranda advice of rights and waiver form. Coronado indicates that he understands the form and marks his initials in the appropriate places. As the ensuing exchanges will make apparent, Coronado does not yet realize what the subject of the interrogation will be.

         • 18:58:20: Sakovics asks Coronado to sign in the appropriate place on the form if he is willing to answer questions without an attorney present. Coronado asks, “You're about to ask me questions?” Evans replies, “Well, yeah, we want to let you know what's going on, and this gives us permission to have a conversation.” Coronado signs in the appropriate place without asking any more questions and without telling any of the officers that he has an attorney and without asking to see that attorney.

         • 18:58:36: Coronado asks Evans, “Can I ask you a question?” Evans replies, “You can ask whatever you want.” Coronado asks whether he will go home to see his family that night. Evans replies, “I don't know the answer to that.” Evans then explains that she and Mordino are from Buffalo Police while Sakovics is “federal, ” and that Coronado was arrested on a federal warrant. Coronado asks, “How long did I have a warrant, because I'm out on bail for traffic. I've been going to court and everything.” Evans replies, “It's probably very recent, I would imagine.”

         • 18:59:32: Sakovics clarifies the date of the warrant as December 12. Evans informs Coronado that the warrant concerns “something that happened a few years ago.” .

         •19:00:10: Sakovics advises Coronado that the interrogation is being recorded. For approximately 15 minutes thereafter, the interrogation diverts into a discussion by Coronado of his incarceration, education, family, and employment history. Sakovics leaves the room during the conversation. Coronado sits upright or has his forearms resting on his legs; he uses his hands as he talks; and he looks at the officers directly. The officers interject with questions and comments. This part of the interrogation is fairly casual; the officers are trying to establish a rapport with Coronado and are letting him speak as he wishes about his background.

         • 19:11:45: Evans steers the discussion back to an event that occurred in December 2009 and how the officers have been gathering information about it.

         •19:13:42: Evans identifies December 17 as the date of the 2009 incident Evans tells Coronado that “there are two sides to every story, ” that the officers “learned certain things and heard your name, ” and “I need to talk to you to see what's true and what's not.” Evans also cautions Coronado that “we've done our homework, and, so, we know what happened.” Coronado responds, “Well, what, though?”

         • 19:15:05: Evans mentions the kidnapping of Jabril Harper but does not refer to Harper by name Coronado makes a comment that is hard to discern but that sounds as if he is asking for a name of the kidnapping victim. Evans then mentions Harper's name. This point marks the first time when Coronado realizes what the officers want to discuss. Coronado responds, “I was questioned about this already.” Evan says, “Okay, that's fine.” Coronado then continues, “I actually have a lawyer for this. I was assigned.” Coronado explains the events that occurred in 2012 that led to an appointment of counsel, including that he was brought to a building “across the street from the new federal courthouse” and that “there was a federal guy who wanted to talk to me about a homicide. They told me the name that you just said.” Coronado recites that he was told in 2012 that he was not a target. During this explanation, Coronado appears relaxed as he places a forearm on a table where Mordino is sitting and leans in to address Mordino and Evans.

         • 19:17:15: Coronado explains that “the federal guy” made reference to a grand jury and to bringing Coronado to court for assignment of counsel. Coronado explains that the lawyer who was assigned “took herself off and was replaced with “a different lawyer.” After one meeting during which Coronado was presented with information about Harper, Coronado explains that he did not hear anything about the matter again.

         • 19:18:05: Evans reiterates that the officers want to talk to Coronado about what happened that night. Coronado responds, “I can't say anything.” Evans replies, “Well, you probably can. Because like I said, we know, we know, we know everything now.” Coronado replies, “I told them the same thing, that I had nothing to do with it.” Evans tells Coronado that the officers know what happened that night. Coronado replies, “It didn't have nothing to do with me.” Evans disagrees, and Coronado says, “I know for a fact that it didn't.” At that point, Coronado shifts his body to lean back against the back of the chair and against the wall, assuming more of a slouching posture. Coronado repeats ...


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