free to leave the interviews at any time. (TR 60-61; 73-74.) Defendant did not contradict this testimony but simply maintained that, if he had been given Miranda warnings, he would not have spoken with Agent Zorn. The Court concludes that neither of these interviews took place in the type of "police dominated" atmosphere in which the Miranda ruling has been applied, nor was Defendant's freedom of movement sufficiently restrained such that he could reasonably have believed himself to be in federal custody. See Berkemer v. McCarty, 468 U.S. at 438-39 (citations omitted); California v. Beheler, 463 U.S. at 1125.
Both parties seem to concede that Defendant was "in custody" during his September 7, 1993 meeting with Agent Zorn at the Erie County Jail. However, on that particular occasion, Defendant -- through his counsel -- sought out Agent Zorn for purposes of cooperating with the FBI. (TR 80-81.) Only Defendant, his attorney, and Agent Zorn were present at the interview, which lasted approximately 15 minutes. Id. Again, no promises or inducements were made to Defendant in return for any information, there is no evidence of any coercive behavior by Agent Zorn, and the latter testified that Defendant "really had nothing else new to offer" at this meeting. (TR 81, 114-15.) Although Defendant obviously was not free to leave the prison, he had counsel present and presumably could have terminated the interview at any point and returned to his cell. (TR 84, 114.) In light of these facts, the Court has some doubt as to whether the September 1993 meeting with Agent Zorn was a "custodial interrogation," notwithstanding Defendant's incarceration. Even if the interview was custodial, however, the Court is satisfied that Defendant's voluntary statements made in the presence of -- and upon the advice of -- counsel constituted a knowing, intelligent, and voluntary waiver of his Fifth Amendment privilege against self-incrimination.
See Colorado v. Connelly, 479 U.S. 157, 168, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986) (government need prove waiver of Miranda rights only by a preponderance of the evidence).
Finally, with respect to Defendant's civil deposition conducted in April of 1993, it is undisputed that no government officials were involved with or even present on that occasion. There is evidence that neither Agent Zorn nor anyone else from the FBI contacted Marine Bank's attorney until after the deposition had taken place. (TR 7-8, 88.) Moreover, Defendant was represented by counsel throughout the deposition and attempted to assert his Fifth Amendment privileges on various occasions. (TR 4, 107, 115-16 and Ex. G-1.) Because the deposition did not involve any form of governmental coercion or interrogation, Defendant's Fifth Amendment rights were not implicated and no Miranda warnings were required.
Defendant's second argument for suppression is that the alleged statements were taken in violation of his Sixth Amendment right to counsel. Is it fundamental that this constitutional protection attaches only with "the initiation of adversary judicial proceedings" against the suspect -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Michigan v. Jackson, 475 U.S. 625, 629, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986) (quoting United States v. Gouveia, 467 U.S. 180, 187, 188, 81 L. Ed. 2d 146, 104 S. Ct. 2292 (1984)); Brewer v. Williams, 430 U.S. 387, 398, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972) (plurality opinion)). Thereafter, government efforts to elicit information from the accused, including interrogation, represent "critical stages" at which an accused has the right to have counsel present under the Sixth Amendment.
As is evident from the Court's recitation of the testimony presented at the March 13 hearing, all of Defendant's alleged incriminating statements to Agents Palumbo and Zorn -- as well as any statements made during his civil deposition -- were made prior to Defendant's November 30, 1994 indictment. Thus, Defendant's right to counsel under the Sixth Amendment had not yet attached. Moreover, both Defendant's statements to Agent Zorn on September 7, 1993 and his statements made during his April, 1993 civil deposition were taken with counsel present. In sum, there is no Sixth Amendment ground for suppressing any of Defendant's statements.
Defendant's third asserted basis for suppression is that "any alleged waiver by the defendant of his Fifth and Sixth Amendment rights was not a knowing, voluntary and intelligent waiver." (Def.'s Mot. to Suppress. at 2.) Given the Court's previous disposition of Defendant's first two arguments, it is not necessary to address this argument in further detail. We will therefore turn to Defendant's fourth asserted basis for suppression: that any statements made by Defendant were involuntary in violation of his right to due process of law.
Even if a statement is admissible under the Fifth Amendment Self-Incrimination Clause, it must be excluded if it was involuntarily made in violation of the individual's due process rights. Lego v. Twomey, 404 U.S. 477, 478, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972); U.S. v. Swint, 15 F.3d 286, 288-89 (3d Cir. 1994). It is the government's burden to prove by a preponderance of the evidence that any statements made by Defendant were given voluntarily. U.S. v. Swint, supra, at 289; United States ex rel. Hayward v. Johnson, 508 F.2d 322, 326 (3d Cir. 1975) (citing Lego v. Twomey, supra, at 487-89), cert. denied, 422 U.S. 1011, 45 L. Ed. 2d 675, 95 S. Ct. 2637 (1975)).
In determining whether a confession was voluntary, the Court must satisfy itself that the confession was "the product of an essentially free and unconstrained choice by its maker," that it was "the product of a rational intellect and a free will," and that the individual's will was not "overborne." U.S. v. Swint, supra, at 289 (citing United States ex rel. Hayward v. Johnson, supra, at 326). The Supreme Court recently spoke to this issue in Withrow v. Williams, 507 U.S. 680, 113 S. Ct. 1745, 1754, 123 L. Ed. 2d 407 (1993), wherein the Court stated:
Courts look to the totality of circumstances to determine whether a confession was voluntary. Those potential circumstances include not only the crucial element of police coercion, ... the length of the interrogation, ... its location, ... its continuity, ... the defendant's maturity, ... education, ... physical condition, ... and mental health. (Citations omitted.) They also include the failure of police to advise the defendant of his rights to remain silent and to have counsel present during custodial interrogation. (Citations omitted.)
Unless there is police conduct causally related to a defendant's confession, the confession is considered voluntary. Thus, a court will not hold that a confession was involuntary unless it finds that it was the product of "police overreaching." United States v. Swint, supra, at 289 (citing Colorado v. Connelly, 479 U.S. 157, 164, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986)).
Upon examination of the totality of circumstances here, the Court finds that Defendant's various statements to Agents Palumbo and Zorn, as well as his statements made at deposition, were voluntary and were not the result of any overreaching by the federal agents. As the Court has previously noted, all of Defendant's substantive contacts with Agent Palumbo were initiated by Defendant himself. Defendant was never placed in custody by Agent Palumbo, nor was he ever offered any specific inducement or remuneration for his information regarding the instant case. Defendant's contention that he believed he was operating as a confidential informant for the FBI is not sufficient to render his various statements involuntary, especially in the absence of any definite promises or guarantees of immunity by Agent Palumbo.
The Court likewise finds that Defendant's statements to Agent Zorn were voluntary. The Court has previously observed that the two interviews on February 5 and 8, 1993 were conducted in a non-custodial setting without any threats, inducements or other forms of coercion. At all times, Agent Zorn identified himself as an investigatory agent of the FBI. Defendant appears to be a mature, reasonably educated and mentally healthy individual. Defendant's only evidence of involuntariness is his self-serving assertion that, if he had been given a Miranda warning beforehand, he would not have spoken to Agent Zorn. As to Defendant's contact with Agent Zorn at the Erie County prison, it is undisputed that Defendant's attorney initiated that particular meeting and remained present throughout the interview. No threats, promises or inducements were made by Agent Zorn in exchange for Defendant's statements. In sum, the Court is satisfied that Defendant's various statements to the federal agents were voluntary and were not the result of any governmental overreaching.
Because the Defendant's civil deposition was conducted without the presence or involvement of governmental agents, there is no basis for suppression of those statements on due process grounds. Defendant's fourth argument for suppression therefore fails.
For the foregoing reasons, the Court concludes that Defendant's motion to suppress must be denied. An appropriate order follows.
AND NOW, this 14th day of April, 1995, for the reasons stated in the accompanying Memorandum Opinion, IT IS HEREBY ORDERED that Defendant's Motion to Suppress Statements [Doc. No. 22) is DENIED.
Sean J. McLaughlin
United States District Judge