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UNITED STATES v. CONLEY

June 27, 1994

UNITED STATES OF AMERICA,
v.
JOHN F. "Duffy" CONLEY, WILLIAM C. CURTIN, SHEILA F. SMITH, JOHN FRANCIS "Jack" CONLEY, THOMAS "Bud" McGRATH, MARK A. ABBOTT, THOMAS ROSSI, WILLIAM STEINHART, ROBERTA FLEAGLE, ROBIN SPRATT, MONICA C. KAIL, WILLIAM J. REED, JOANNE T. SMITH, KENNETH "Ron" GOODWIN, LAWRENCE N. "Neudy" DEMINO, SR., CHRISTOPHER "Chris" KAIL, JOSEPH A. DEVITA, FRANK GAROFALO, THOMAS D. CIOCCO, MICHAEL SUKALY, PHILLIP M. "Mike" FERRELL, ANESTOS "Naz" RODITES, and WILLIAM E. RUSIN, Defendants.



The opinion of the court was delivered by: DONALD J. LEE

 Before the Court is the Government's Motion for Reconsideration of Order Suppressing Statement, (Document No 878, in part).

 The Government has asked the Court to reconsider its Order suppressing Defendant John F. "Duffy" Conley's October 30, 1989 statement to Special Agent John Donnelly. Upon reconsideration, the Court will alter its findings of fact, but the Order will be reaffirmed.

 In prior proceedings, the Court suppressed evidence of statements made by Duffy Conley on October 30, 1989, having concluded that, under the applicable law, the statements were unconstitutionally coerced statements in violation of the Fifth Amendment. United States v. Conley, 1994 U.S. Dist. LEXIS 10663, Crim. No. 91-178, slip op. (W.D. Pa. January 7, 1994) (Document No. 800). The Court will not reiterate its findings or legal analysis, except to the extent absolutely necessary to dispose of the Government's contentions.

 The Government raises three grounds for reconsideration. First, the Government contends that Special Agent John Donnelly's ("S.A. Donnelly") off-the-record promise was limited to the Windgap "conversation." Second, the Government contends that agreeing to speak off-the-record is not a promise of use immunity. Finally, the Government contends that "Duffy Conley's testimony was given too much credibility by this Court. The defendant's version of what occurred at Windgap is at odds with the version offered by the government through FBI SA Donnelly." Government's Motion for Reconsideration of Order Suppressing Statement and Brief in Response to Defendant's Motion to Suppress "Tainted" Evidence, at 19. The Court will address the Government's contentions in reverse order.

 I

 The Government does not contend that the Court's findings are not supported by the evidence. Rather, it objects that the Court believed Duffy Conley rather than S.A. Donnelly on points where their testimony conflicted, S.A. Donnelly's testimony did not cover an area, or S.A. Donnelly's testimony stated an inability to clearly recall.

 The Court, as finder of fact, is free to accept or reject any part or all of any witness's testimony. Government witnesses are not per se credible, or even presumed to be credible. Although many of the Court's findings were based upon the testimony of S.A. Donnelly, the Court did in fact implicitly make credibility determinations adverse to S.A. Donnelly on critical points. As the Government has pressed the point, the Court will express its reasons -- though not necessarily for every credibility determination.

 First, the Court found to be believable the testimony of Duffy Conley in support of this motion. The Court has observed the demeanor of Duffy Conley during his testimony on this occasion and numerous other occasions. Contrary to the Government's contentions, the Court is not "unjustified" in believing Duffy Conley on critical points -- whether or not it views his testimony regarding other matters as "less than candid."

 Second, the Court found the testimony of S.A. Donnelly "less than candid." In its original opinion, the Court rejected S.A. Donnelly's attempt to convey the impression that the substance of Miranda warnings were given to Duffy Conley at the Main Hotel. Conley, slip op. at 5-7, PP 31-35 & n.3. The Government contends that S.A. Donnelly's testimony "is supported by" the FD-302 prepared by S.A. Donnelly, which "represents the best evidence of what was said that day." Government's Motion for Reconsideration of Order Suppressing Statement and Brief in Response to Defendant's Motion to Suppress "Tainted" Evidence, at 19 n.7. The FD-302 was certainly better evidence of what was said that day than S.A. Donnelly's testimony on direct examination. Defense counsel's cross-examination of S.A. Agent Donnelly, which was based in part on the FD-302 and in part from other sources, demonstrated the wisdom of the Framers in writing the Sixth Amendment as they did.

 On cross-examination, S.A. Donnelly admitted that his purpose for the Windgap encounter, his first interview of Conley, was to obtain information about Ninny Lagatutta, Sonny Ciancutti and the Arnold Coin Company. When asked if he mentioned any of these persons at the first meeting, he "could not recall" and "didn't know that he did." Duffy Conley directly testified that S.A. Donnelly did ask about such persons at the Windgap encounter. Moreover, Duffy Conley directly testified to having discussed those persons at the Main Hotel. S.A. Donnelly "did not recall mentioning any names" at the Main Hotel, despite the FD-302's including some of the subject matters which formed the context of the discussions related by Duffy Conley, but not the names of the persons. In determining to credit Duffy Conley's testimony notwithstanding Agent Donnelly's insistence that he would not have mentioned specific names without a formal cooperation agreement, the Court had to wonder how Duffy Conley was able to discern so accurately S.A. Donnelly's actual subjective interests, which S.A. Donnelly did not recall ever expressing. See also (N.T. April 4, 1994 at 70-77).

 The Government stresses that Duffy Conley was "uncooperative" at the first meeting. The Court believes that S.A. Donnelly was seeking a more formal cooperation agreement, but he never mentioned such an agreement to Conley. Conley, slip op. at 2 P 8, 15 (Document No. 800). The lack of a formal cooperation agreement may mean "uncooperative" in some special government sense, but the Court's findings on the demeanor of the actors during the encounters in question -- based in large measure on S.A. Donnelly's testimony -- reflect friendly, non-adversarial exchanges. See id. at 3 PP 12-16.

 Based exclusively on S.A. Donnelly's testimony, the Court made the following findings:

 
2. Although there was an ongoing, independent federal investigation of John F. "Duffy" Conley ("Conley"), S.A. Donnelly was not aware of it [in mid-October, 1989]. Conley was not a target of S.A. Donnelly's investigation.
 
* * *
 
19. [At the Main Hotel] S.A. Donnelly was still conducting his independent investigation, in which Conley was not a target.

 Conley, slip op. at 1-2 P 2, 4 P 19. S.A. Donnelly's testimony on this matter certainly was based upon a "special meaning" so narrow as to be without meaning to anyone other than the witness.

 
Q [Mr. Wymard] Agent Donnelly, you indicated that you happened to be out at The [sic] Main Hotel doing a surveillance; is that correct?
 
A [S.A. Donnelly] That's correct.
 
Q The focus of your involvement in the investigation at this time; is that correct?
 
A That's correct.
 
Q All right. and the focus of your investigation was John "Duffy" Conley, isn't that correct?
 
A That's incorrect.
 
Q That's incorrect, okay. Would you tell us what the nature of your investigation was.
 
A I'm not sure I can at this time because it is an ongoing investigation. But it was not -- this was prior to --
 
Q This is 1989?
 
A Yes. This was prior to the matter at hand. It just so happened that my investigation overlapped with John "Duffy" Conley's video poker operation, and he was not the target of an investigation at that time.
 
Q Are you telling in October of 1989 John "Duffy" Conley was not the target of any FBI investigation that you were aware of at that time?
 
MR. WILSON: Objection, that isn't what the witness has said. And I --
 
MR. WYMARD: Well --
 
MR. WILSON: Your Honor, if I might, Agent Pietropola has indicated to me that he is aware that Agent Donnelly was participating in a surveillance directed at a target wholly unrelated to John "Duffy" Conley and not related to this --
 
THE COURT: He'll not be required to disclose that, but I'll overrule the objection. I think ...

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