The opinion of the court was delivered by: DONALD J. LEE
Pending before the Court is Defendant William E. Rusin's Motion to Suppress Statement of April 24, 1990 (Document No. 415). A hearing was held on July 9, 1992, at which the Court received the testimony of FBI Special Agent John Duffy ("S.A. Duffy"), Defendant Rusin ("Rusin") and John Butya, Esquire ("Butya").
Based upon the submissions of the parties and the preponderance of credible evidence, the Court makes the following Findings of Fact and Conclusions of Law.
1. Prior to April 1990, S.A. Duffy and IRS/CID Special Agent Daniel Hanlon ("S.A. Hanlon") were conducting an investigation of a suspected illegal poker-machine gambling operation run by John F. "Duffy" Conley in the Pittsburgh, Pennsylvania area.
2. S.A. Hanlon learned from a person familiar with a certain bank that an individual named Bill had been making large cash deposits into a bank account of John F. "Duffy" Conley. The person also described Bill to S.A. Hanlon and told him that Bill was the owner of a bar in Crafton named Mugshots.
4. Rusin, fifty-eight, has a ninth grade education and is unable to read or write.
5. The agents made several attempts to contact Rusin at his bar and his home, but they were not successful. Nonetheless, the agents left messages for Rusin.
6. Rusin telephoned S.A. Duffy in response to the messages. Rusin agreed to meet with the government agents. Rusin selected the place for the meeting. It was an Eat 'N Park restaurant in Robinson township, close to Rusin's residence and a place with which he was familiar. The meeting was scheduled for April 24, 1990, several days after the telephone call.
7. On April 24, 1990, Rusin attempted to contact his attorney, John Butya, Esquire. As Butya was out of the office, Rusin left a message with Butya's secretary. Further, Rusin told his wife and son to make sure that they got in touch with Butya. Notwithstanding his inability to contact Butya, Rusin went to the Eat 'N Park to meet with the agents.
8. At about 2:00 p.m. on April 24, 1990, Rusin was waiting outside the Eat 'N Park. S.A. Duffy and S.A. Hanlon drove into the parking lot in an FBI vehicle, a late-model Pontiac Bonneville. The car was a four-door, regular automobile, without special locks, screens or devices to prevent occupants of the rear seat from exiting.
9. As the agents drove towards the front door, they noticed a man who appeared to be looking for someone. They asked him if he was Bill Rusin. Rusin and the agents identified themselves to each other.
10. S.A. Duffy drove the car into a parking space. Rusin followed the car on foot to the parking space, one of the agents opened the car door for him and Rusin sat in the right rear seat. Although S.A. Duffy had the intention of conducting the interview in the restaurant, it was conducted in the car. S.A. Duffy never directed Rusin to get in the car.
11. The agents presented their credentials to Rusin. They informed Rusin of the general nature of the their investigation and that Rusin's name had surfaced in the investigation. They did not tell Rusin that he had been connected to suspected money laundering activity. The agents told him that they wanted to interview him as a potential witness and to have his cooperation.
12. The agents did not tell Rusin that he was a target of their investigation; nor did they tell him he was not a target.
13. At the time of the interview, the agents contemplated the possibility that Rusin was engaged in illegal conduct. Nonetheless, the agents had no present intention of using Rusin's statement against him.
14. The agents did not state that what Rusin said during the course of the interview would not be used to incriminate him. Rusin never asked whether his statements would be used to incriminate him and never indicated that he would not answer questions in the absence of some type of immunity.
15. The agents were not aware of Rusin's inability to read and write. There is no evidence that the agents asked Rusin to read, write or sign any document during the interview.
16. The agents never informed Rusin of his Miranda rights.
17. The agents never told Rusin that he had no need for an attorney.
18. Rusin never informed the agents that he did not wish to answer questions until Butya, his attorney, was present. Indeed, Rusin never informed the agents that he was expecting Butya to appear at the Eat 'N Park.
19. The agents did not tell Rusin that making bank deposits is perfectly legal.
20. The agents did not tell Rusin that no record of the interview would be made. In fact, S.A. Hanlon took notes of the interviews, and Rusin saw him ...