U.S. v. James

• Decision Date: 04 January 2006
• Docket Number: No. 02 CR 778(SJ).,02 CR 778(SJ).
• Parties: UNITED STATES of America, v. Richard JAMES, Ronald Mallay, Baskinand Motillal, and Betty Peter, Defendants.
• Court: U.S. District Court — Eastern District of New York

415 F.Supp.2d 132

UNITED STATES of America, v. Richard JAMES, Ronald Mallay, Baskinand Motillal, and Betty Peter, Defendants.

No. 02 CR 778(SJ).

United States District Court, E.D. New York.

January 4, 2006.

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Roslynn R. Mauskopf, Esq., United States Attorney, EDNY, Brooklyn, NY, By Tracy Lee Dayton, Esq., Lisa J. Kramer, Esq., Lawrence Philip Ferazani, Esq., for the United States.

Brafman & Ross, P.C., New York, NY, By Charles Albert Ross, Esq., for Defendant Betty Peter.

Ephraim Savitt, Esq., New York, NY, for Defendant Richard James.

Steve Zissou & Associates, Bayside, NY, By Steve Zissou, Esq., for Defendant Richard James.

Kaplan & Katzberg, New York, NY, By Kenneth J. Kaplan, Esq., for Defendant Ronald Mallay.

Law Offices of Richard Jasper, New York, NY, By Richard Jasper, Esq., for Defendant Ronald Mallay.

Robert Curtis Gottlieb, Esq., Commack, NY, for Defendant Baskinand Motillal.

MEMORANDUM & ORDER

JOHNSON, Senior District Judge.

Defendants Richard James ("James") and Ronald Mallay ("Mallay") are each charged in a nineteen-count indictment with various counts of racketeering, murder, attempted murder, mail fraud, and money laundering, relating to an allegedly fraudulent scheme to obtain life insurance policies for people of Guyanese ancestry. Presently before the Court are motions by James and Mallay to suppress certain statements and documentary evidence seized by the government.

In his suppression motion, Mallay seeks to preclude introduction at trial of insurance policies and other documents seized by law enforcement officials from his apartment on the date of his arrest. Mallay contends that the documents at issue were not within the investigating officers' plain view and thus were impermissibly seized during a warrantless search. Mallay also seeks to suppress certain postarrest statements made to arresting officers on the ground that he was subjected to custodial interrogation without the benefit of Miranda warnings, in violation of his Fifth Amendment rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendant James seeks to suppress certain post-arrest statements made to arresting officers, on the ground that he had the right under the Fifth and Sixth Amendments to be represented by counsel during his custodial interrogation because an indictment was pending against him. James also moves for suppression of prearrest, recorded statements made to a cooperating individual, on the ground that his Sixth Amendment right to counsel was violated when federal law enforcement officials authorized the cooperator to question James in the absence of counsel after an indictment was pending against him.

Both James and Mallay also seek to suppress out-of-court identifications made by a government witness on the ground that the identification procedures used by the federal agents were unduly suggestive.

The Court referred Defendants' motions to Magistrate Judge Cheryl Pollak for a report and recommendation. Accordingly, Magistrate Judge Pollak conducted a suppression hearing on July 21, 2005, as well as a Wade hearing on September 22, 2005 on the issue of the identification procedures used by the investigating agents. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). On the basis of the hearings and related pleadings, Magistrate Judge Pollak issued a Report and Recommendation (the "Report") on November 10, 2005. The Report recommended that (1) Mallay's motion to suppress the evidence seized from his residence be denied; (2) Mallay's motion to suppress his post-arrest statements be denied; (3) James' motion to suppress his post-arrest statements be denied; (4) James' motion to suppress the recorded conversations to the cooperating individual be denied; and (5) James' and Mallay's motions to suppress the photograph identification be denied.

A district court judge may designate a magistrate to hear and determine certain motions pending before the Court and to submit to the Court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten days of service of the recommendation, any party may file written objections to the magistrate's report. See id. Upon de novo review of those portions of the record to which objections were made, the district court judge may affirm or reject the recommendations. See id.

The Court is not required to review the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In addition, failure to file timely objections may waive the right to appeal this Court's Order. See 28 U.S.C. § 636(b)(1): Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989).

In this case, objections to Magistrate Judge Pollak's Report were due within ten days of receipt of the November 10, 2005 Report. No objections were filed with this Court. Upon review of the Report, this Court therefore adopts and affirms the Report of Magistrate Judge Pollak in its entirety.

SO ORDERED.

REPORT AND RECOMMENDATION

THE MOTIONS TO SUPPRESS

POLLAK, United States Magistrate Judge.

Defendants Richard James and Ronald Mallay face various counts, including RICO charges, and charges of murder and attempted murder, relating to a fraudulent scheme to obtain life insurance policies on people of Guyanese ancestry.¹ Currently pending before this Court are motions by defendants James and Mallay to suppress certain statements and documentary evidence seized by the government.

Specifically, defendant Mallay seeks to preclude introduction at trial of the insurance policies and other documents seized from his apartment on the date of arrest. He contends that during the course of a warrantless search conducted at the time of his arrest, the investigating officers seized papers from inside a plastic file box. Mallay also seeks to suppress certain postarrest statements made to the arresting officers. In his affidavit, Mr. Mallay claims that only after he had been forcibly taken to the precinct and questioned was he advised of his Miranda rights. (Mallay Mem. at 14; Mallay Aff. ¶ ¶ 9, 11-12).² Since the questioning was not voluntary and he did not receive Miranda warnings prior to questioning, Mallay contends that the statements should be suppressed. (Id.) He also claims that he was detained for a "couple of hours," "his native language is not English,"³ and that once advised of his Miranda rights, he declined to speak to the officers, which he argues demonstrates that he would not have spoken to them earlier if given the warnings before questioning. (Id. at 15-16).

Defendant James also seeks to suppress certain post-arrest statements as well as recorded statements he made to a cooperating individual after an indictment was filed and his right to counsel had attached. (See James Mem.⁴ at 29-32; James Supp. Mem.⁵ at 13-14).

PROCEDURAL AND FACTUAL BACKGROUND

A. Affidavit Requirement

As an initial matter, some courts have held that in the absence of a sworn affidavit attesting to the facts, the defendant is not entitled to a hearing on the issue of voluntariness. United States v. Pena, 961 F.2d 333, 339 (2d Cir.1992). Indeed, the Second Circuit has made it clear that the court has the discretion to deny an evidentiary hearing where the defendant has failed to submit papers that raise a dispute over a material issue of fact, see United States v. Caming, 968 F.2d 232, 236 (2d Cir.), cert. denied, 506 U.S. 956, 113 S.Ct. 416, 121 L.Ed.2d 339 (1992), or where the defendant has failed to support his factual allegations with a sworn affidavit from a witness with personal knowledge. See, e.g., United States v. Gillette, 383 F.2d 843, 848 (2d Cir.1967).

At the same time, however, the Second Circuit has held that a defendant's mere allegation that the agents did not administer Miranda warnings, despite the government's claim to the contrary, is sufficient to require a hearing. See United States v. Mathurin, 148 F.3d 68, 69-70 (2d Cir. 1998). Here, defendant Mallay has submitted an affidavit claiming that he was not advised of his rights and defendant James' counsel affirm the description of the circumstances of James' arrest. In this Court's view, these are sufficient to raise the issue of voluntariness and warrant a hearing.

Accordingly, in an exercise of discretion, this Court ordered a hearing in this matter to determine the propriety of the seizure of papers from Mallay's home, and the voluntariness of the statements made by James and Mallay.

B. The Hearing

During the suppression hearing held on July 21, 2005, the government presented the testimony of Eugene Kizenko, a Special Agent with the Bureau of Immigration and Customs Enforcement ("BICE").⁶ (Tr. II at 4). The defense called William Oldham, formerly a detective with the New York City Police Department ("NYPD") and an investigator for the United States Attorney's Office in the Eastern District of New York ("USAO").⁷ (Tr. II at 83, 96).

Agent Kizenko testified that in January 2001, he became involved in an investigation of James and Mallay in connection with a scheme in which James, an insurance broker, allegedly wrote life insurance policies on certain individuals, and Mallay conspired with others to have the insureds murdered in order to obtain the proceeds of these policies. (Id. at 5-6).

1) The Arrest of Mallay and the Search

In late August of 2002, a warrant for Mallay's arrest was issued based upon a complaint, charging him with conspiracy to commit interstate or foreign murder-forhire, identifying two alleged victims, Mr. Somaipersaud and Mr. Sewnanan. (See Tr. II at 8-9). At a little after 7:00 a.m., on September 3, 2002, Agent Kizenko, two INS agents, and officers from the Major Case...