The opinion of the court was delivered by: Padova, J.
Defendant Christopher Booker has filed an Amended Motion to Suppress Post-Arrest Statements. We held a Hearing on the Motion on November 14, 2012. For the following reasons, the Motion is denied.
Superseding Indictment No. 05-170 charges Booker with one count of conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371 (Count I); one count of committing and aiding and abetting the commission of armed bank robbery of the Citizens Bank located in Brookhaven, Pennsylvania on June 15, 2004, in violation of 18 U.S.C. §§ 2113(d) and 2 (Count IV); and one count of using and carrying a firearm during a crime of violence and aiding and abetting the use and carrying of a firearm in relation to a crime of violence on June 15, 2004, in violation of 18 U.S.C. §§ 924(c) and 2 (Count V). On February 1, 2007, a jury convicted Booker of all three of these counts. On July 2, 2012, Booker's conviction was vacated by the United States Court of Appeals for the Third Circuit for reasons unrelated to the instant Motion and this action was remanded for a new trial. On October 18, 2012, Booker filed the instant Amended Motion to Suppress, seeking the suppression of oral statements that he made to FBI Special Agent Vito Roselli on November 30, 2004, December 8, 2004 and December 22, 2004, regarding the conspiracy to commit armed bank robbery and the June 15, 2004 armed bank robbery. These oral statements were memorialized by Agent Roselli on FD-302 forms. The Assistant United States Attorney prosecuting this case has indicated that he intends to introduce these three statements at Booker's new trial.
Booker filed a Motion to Suppress the same three statements prior to his first trial. A Hearing was held on that Motion on November 2, 2006, during which both Agent Roselli and Booker testified. We denied the Motion following the Hearing. (See 11/2/06 Order-Mem.) The parties have stipulated that the testimony taken during the November 2, 2006 Hearing should be part of the record of the instant Amended Motion to Suppress. (11/14/12 Hr'g Tr. at 2-3.)
The first two times that Agent Roselli met with Booker, Booker was detained at the Atlantic County Correctional Facility ("ACCF") in connection with an October 29, 2004 arrest on charges of unlawful possession of firearms and cocaine base in Atlantic City, New Jersey. (Id. at 6-7; 11/2/06 Hr'g Tr. at 13-14, 44-45, 54.) When Booker was arrested in Atlantic City, he was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), refused to waive those rights, and invoked his Fifth Amendment right to remain silent and his Sixth Amendment right to counsel. (11/2/06 Hr'g Tr. at 50-51.) Counsel was appointed to represent him on those charges, and counsel had previously been appointed to represent him in another open case in New Jersey. (Id.) Booker was in custody and did not have counsel present when he spoke to Agent Roselli on November 30, 2004, December 8, 2004 and December 22, 2004. (11/14/12 Hr'g Tr. at 16-17.)
Agent Roselli went to the ACCF to meet with Booker on November 30, 2004, because he had been informed, by police officers from the Darby Borough Police Department, that Booker wanted to speak to someone in the FBI about bank robberies. (11/2/06 Hr'g Tr. at 12-13.) Agent Roselli, was, at that time, involved in the investigation of three bank robberies: the April 2004 robbery of an Artisans' Bank in Wilmington, Delaware; the June 15, 2004 robbery of a Citizens Bank in Brookhaven, Pennsylvania; and the September 2004 robbery of an M&T Bank in Andalusia, Pennsylvania. (11/2/06 Hr'g Tr. at 10-12.) Prior to his first visit to Booker at the ACCF, Agent Roselli had not received any information that suggested that Booker had any involvement in any of those robberies. (Id. at 16, 47-48.)
Before the Darby Borough Police Officers contacted Agent Roselli about Booker's interest in speaking with the FBI, those officers, Detective Dominic Dellabarba and Lieutenant Gibbney,*fn1 were aware that Agent Roselli was a member of the FBI's bank robbery squad and had spoken with Agent Roselli regarding several armed robbery investigations. (Id. at 45; 11/14/12 Hr'g Tr. at 15.) In addition, Agent Roselli had spoken with either Detective Dellabarba or Lieutenant Gibbney in late October 2004 regarding information that Agent Roselli had received implicating Booker in the murder of Zaqi Logan. (11/2/06 Hr'g Tr. at 45-46; 11/14/12 Hr'g Tr. at 4-5, 15.) Some time after he spoke with Agent Roselli about Booker's possible involvement in the Logan murder, Detective Dellabarba learned that Booker was detained at the ACCF, and he and Lieutenant Gibbney went there to speak with Booker about the Logan murder. (11/2/06 Hr'g Tr. at 12, 47; 11/14/12 Hr'g Tr. at 5.) Shortly after they spoke with Booker, either Detective Dellabarba or Lieutenant Gibbney called Agent Roselli and told him "that they had gone out and talked to Mr. Booker, and that he had -- he wanted to talk to the FBI about some bank robbery activity." (11/2/06 Hr'g Tr. at 47; see also id. at 12; 11/14/12 Hr'g Tr. at 7.)
Prior to speaking with Booker on November 30, 2004, Agent Roselli advised Booker of his Miranda rights and had him initial and sign an FD-395 Advice of Rights form, which was dated November 30, 2004, 9:18 a.m. (11/2/06 Hr'g Tr. at 13-14; Gov't Hr'g Ex. 5.) By initialing and signing the form, Booker affirmed that he understood his right to remain silent and right to an attorney and that he was "willing to answer questions without a lawyer present." (Gov't Hr'g Ex. 5.) Booker's signature and initials were witnessed by Agent Roselli and FBI Special Agent Joseph Fry at 9:20 a.m. (Id.) This Advice of Rights form was entered into evidence at the November 2, 2006 Hearing as Government Exhibit 5. (Id.)
During their conversation on November 30, 2004, Booker told Agent Roselli that he wanted to get out of Atlantic County and asked Agent Roselli to adopt "the bank robbery case, and, if possible, the drug case, and bring them back to Philadelphia." (11/2/06 Hr'g Tr. at 17.) Booker wanted to be transferred from the ACCF to the Federal Detention Center in Philadelphia. (Id. at 18.) At the conclusion of their November 30, 2004 meeting, Booker asked Agent Roselli to return. (Id. at 23.)
When Agent Roselli returned to meet with Booker at the ACCF on December 8, 2004, he forgot to bring a blank FD-395 Advice of Rights Form. (Id. at 14.) Consequently, when Agent Roselli advised Booker of his Miranda rights before speaking with him on December 8, 2004, he had Booker initial and sign the November 30, 2004 FD-395 form for a second time. (11/2/06 Hr'g Tr. at 14.) Government Exhibit 5 thus also contains the date 12/8/04, 9:52 a.m. and was initialed by Booker on both sides of each line of the form which lists his Miranda rights. (Gov't Hr'g Ex. 5.) In addition, Booker's signature appears twice underneath the following statement: "I have read this statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer present." (Id.) Agent Roselli and FBI Special Agent Tom Perzichilli witnessed Booker sign the Advice of Rights Form for the second time at 9:53 a.m. on December 8, 2004. (11/2/06 Hr'g Tr. at 14; Gov't Hr'g Ex. 5.) Booker admitted, during the November 2, 2006 Hearing, that the initials and signatures on Government Exhibit 5 are his and that he initialed and signed that Advice of Rights form the first two times that Agent Roselli interviewed him. (11/2/06 Hr'g Tr. at 58.) At the conclusion of their December 8, 2004 interview, Agent Roselli and Booker agreed to meet again at a later date and Agent Roselli told Booker that he was trying to "take [his] case federally." (Id. at 30.)
On December 22, 2004, Agent Roselli, accompanied by Darby Borough Police Detectives Pitts and Slowik, transferred Booker from the ACCF to the Federal Detention Center in Philadelphia, Pennsylvania, after the United States Attorney's Office brought federal charges against Booker arising from his Atlantic City firearms and drug arrest. (Id. at 31-35.) Agent Roselli advised Booker of his Miranda rights, and Booker waived those rights, before they got in the car to drive to Philadelphia from the ACCF. (Id. at 31-32.) Booker made his December 22, 2004 oral statement to Roselli during the car ride from Atlantic City, New Jersey, to Philadelphia, Pennsylvania, and once they arrived in Philadelphia, in the FBI office there. (Id. at 33-34.) Booker signed another FD-395 Advice of Rights Form in Philadelphia on December 22, 2004, before Agent Roselli interviewed him in the FBI's Philadelphia office. (Id. at 37; Gov't Hr'g Ex. 6.) Booker admitted, during the November 2, 2006 Hearing, that he signed the Advice of Rights Form in front of Agent Roselli on December 22, 2004 at 12:14 p.m. and thereby indicated that he "read the statement of [his] rights and . . . understood what [his] rights were," and was "willing to answer questions without a lawyer present." (11/2/06 Hr'g Tr. at 63-64.) Booker's December 22, 2004 FD-395 Advice of Rights Form was entered into evidence at the November 2, 2006 Hearing as Government Exhibit 6.
Miranda v. Arizona, 384 U.S. 436 (1966), provides that custodial interrogation must not take place in the absence of certain procedural safeguards. See Alston v. Redman, 34 F.3d 1237, 1242 (3d Cir. 1994) (citations omitted). "Miranda announced that police officers must warn a suspect prior to questioning that he has a right to remain silent, and a right to the presence of an attorney." Maryland v. Shatzer, -- U.S. --, 130 S. Ct. 1213, 1219 (2010) (citing Miranda, 384 U.S. at 444). A police officer may not interrogate a suspect if, after he has been given his Miranda warnings, "the suspect indicates that he wishes to remain silent." Id. (citing Miranda, 384 U.S. at 473--74). "Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present." Id. (citing Miranda, 384 U.S. at 474). A suspect can, however, waive his Miranda rights. Id. (citing Miranda, 384 U.S. at 475). "To establish a valid waiver, the [prosecution] must show that the waiver was knowing, intelligent, and voluntary . . . ." Id. (citing Miranda, 384 U.S. at 475). The police may question a suspect outside the presence of counsel, and make substantive use of the resulting statements at trial, only if the suspect voluntarily, intelligently, and knowingly waives his right to remain silent and to the presence of an attorney. Alston, 34 F.3d at ...