U.S. v. Heatley
| Decision Date | 12 November 1998 |
| Docket Number | No. S11 96 Cr. 515(SS).,S11 96 Cr. 515(SS). |
| Citation | 39 F.Supp.2d 287 |
| Parties | UNITED STATES of America v. Clarence HEATLEY, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Alan S. Futerfas, New York City, Joel S. Cohen, New York City, David A. Ruhnke, Montclair, NJ, for defendant Clarence Heatley.
Mary Jo White, United States Attorney, New York City, Sharon L. McCarthy, Andrew S. Dember, Assistant United States Attorneys, for U.S.
Defendant Clarence Heatley challenges the superseding indictment in this case on several grounds, all of which stem from a series of proffer sessions in which Heatley made various inculpatory statements. Heatley moves for either dismissal of the indictment or an order directing the United States to grant Heatley a cooperation agreement. For the reasons to be discussed, the Court denies Heatley's motion.
The following constitute the Court's findings of fact, as shown by a preponderance of the evidence. Defendant Clarence Heatley was indicted on July 15, 1996, on three counts of murder and conspiracy to murder in aid of racketeering activity. On August 12, 1996, Heatley was arrested by detectives of the New York City Police Department and transferred to federal custody.
After being transferred to the Federal Bureau of Investigation offices at 26 Federal Plaza that evening, Heatley received proper Miranda warnings and validly agreed to waive his rights and speak to the agents, chiefly FBI Special Agent David Higgins and NYPD Detective Vincent Flynn. Heatley asked the agents about how (and whether) he could help himself through cooperation, and Higgins explained in some detail the process of cooperation, including information regarding the Federal Sentencing Guidelines and what a § 5K.1 letter is. The agents never promised Heatley a cooperation agreement if he agreed to talk. However, according to Detective Flynn, he and Higgins did tell Heatley that "the only thing that would be asked of him was to tell the truth when he did cooperate" and "all he would ever asked to do is to be truthful." Tr. (11/13/97) at 109, 127. Heatley made various inculpatory statements about himself and others during the next two or three hours, and continued to express interest in cooperating. The agents informed Heatley that they would take the statements made at 26 Federal Plaza and bring them to the attention of the United States Attorney.
The next day, August 13, Detective Flynn contacted AUSA Sharon McCarthy and informed her both of Heatley's statement and of his desire to explore cooperation. McCarthy told her supervisor, Elizabeth Glazer, of this development. Later that day, after Heatley's presentment before Magistrate Judge Peck, McCarthy met with Andrew Schapiro, the Legal Aid Society defense counsel assigned to defend Heatley. McCarthy told Schapiro that Heatley had been under investigation for quite some time and that the U.S. Attorney's office considered him the leader of a criminal enterprise and personally responsible for significant criminal activity. The original indictment, she explained, was only "the tip of the iceberg" as far as the government was concerned. The purpose of this discussion, according to McCarthy, was to make Schapiro "understand the severity of the crimes that we believed, based upon our investigation, Mr. Heatley had been involved in for sometime in order for him to understand the full risks associated with a proffer." Tr., at 18.1 McCarthy asked Schapiro to follow up on Heatley's expressed desire to cooperate; Schapiro said he would talk to McCarthy after he had a chance to speak to Heatley about it.2
Schapiro consulted with Heatley and confirmed that he was interested in cooperating. On or about August 16, Schapiro told McCarthy over the phone that they were interested in discussing cooperation; they tentatively set the first proffer session for August 21. Also about that time, Schapiro sent a copy of the indictment to Robert Gottlieb, an attorney who had represented Heatley in the past; Schapiro assumed that Heatley was considering retaining Gottlieb for his defense. After reviewing the indictment, Gottlieb met with Heatley at the Metropolitan Correctional Center (MCC), and Heatley decided to stay with Schapiro's representation.
On August 19, Heatley called Schapiro to relay certain information about individuals who might be in danger which he thought would be helpful to the government as a show of good faith. During this conversation, Heatley also told Schapiro that Gottlieb had expressed serious concern about taking Heatley into a proffer session with the government. According to Schapiro, Heatley told him that "Gottlieb had told [Heatley] that Sharon McCarthy is not a straight shooter and that ... I, Andrew Schapiro, didn't know what I was doing for setting up a proffer session; that no lawyer worth his salt would take a defendant in on a case like this; and that the U.S. Attorney's office would cross him up and use Legal Aid to do it." Tr., at 314. Schapiro in turn told Heatley that, in his experience, McCarthy was "definitely a straight shooter" and that their relationship was good. Schapiro assured Heatley that he had never seen the U.S. Attorney "cross up" a defendant in the manner Gottlieb described, and that the U.S. Attorney had an obligation to act in good faith and in his experience had always done so. In addition, Heatley expressed the concern that if he did proffer, McCarthy might not have the "juice" — i.e., the authority within the U.S. Attorney's Office — to make the cooperation agreement happen. Schapiro told Heatley that he would make sure McCarthy's superiors were involved in the process. Schapiro also, however, shared these concerns to some extent and they "gave [him] pause about whether to bring [Heatley] in at all." Tr., at 317.
Schapiro relayed to McCarthy the information about the threats to persons that Heatley had told him; she asked Schapiro for some more details. The next day, August 20, Schapiro met with Heatley and got the necessary detail, which he then relayed in a phone call to McCarthy. Also during that conversation,3 Schapiro conveyed his concerns to McCarthy about proffering Heatley. He told her he was concerned because "he was the lead defendant on this indictment and because he clearly had a significant criminal history, and ... I would not take him in and proffer him if at the end of the process they were just going to turn around and tell me, I'm sorry, we're just not going to sign him up because he's the lead defendant or because he was too bad a guy." Tr., at 325. McCarthy, in the first of three key assurances relied on heavily in Heatley's moving papers, told Schapiro that Heatley "would not be disqualified from getting a cooperation agreement simply because he was the lead defendant or because he was too bad a guy." Id. In McCarthy's words, she told Schapiro that "the fact that [Heatley] was a leader of the gang and had committed a number of murders would not rule him out as a cooperator." Tr., at 126.
Schapiro also asked McCarthy "to inform me if we ever reached a point during the proffer sessions where things were going wrong and it appeared that Mr. Heatley's chances of getting a cooperation agreement at the end were significantly in jeopardy." Id. In this way, Schapiro could try to correct the problem or end the sessions. McCarthy assured him — the second key assurance relied upon by Heatley's motion — that she would let him know "if it wasn't going anywhere." Tr., at 151. McCarthy did not, however, agree to constantly evaluate Heatley's performance; she told Schapiro that it was her policy never to say to a person "how they're doing." Tr., at 71. Moreover, McCarthy told him that a final answer as to a cooperation agreement would not be forthcoming until after the end of the proffer sessions.
McCarthy also assured Schapiro that she would keep her supervisors abreast of what was happening and involved in the process — the third of the key assurances Heatley refers to. This assurance was in response to Schapiro's concerns about whether her level of authority in the USAO was sufficient to make a cooperation agreement happen. According to Schapiro, he took this to mean that McCarthy's supervisors would make a determination after each proffer session as to whether any more should be held, but McCarthy did not explicitly say this.
Finally, although Schapiro discussed with McCarthy the information that Heatley could provide on a number of homicides, he never asked her whether that would be enough, in light of what they knew of Heatley's activities, to warrant a cooperation agreement. Moreover, Schapiro did not ask whether Heatley would have to provide information on persons outside his alleged criminal enterprise (i.e., the "Crew") in order to obtain an agreement, nor did McCarthy make any representation as to the quantity or quality of information Heatley would have to provide. Schapiro also did not provide an attorney proffer of the information Heatley had to offer in order to ask the government to assess the likelihood of a cooperation agreement prior to the proffers.
In their phone conversation on August 19, Schapiro asked McCarthy what she expected to be the focus of the first proffer session on the 21st. McCarthy told him that because they knew so much about Heatley's activities, the discussion in the first session would not be limited to the charges in the indictment. McCarthy described the first session as a ...
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