United States v. Allegra
| Decision Date | 19 November 2015 |
| Docket Number | No. 15 CR 243,15 CR 243 |
| Parties | United States of America, Plaintiff, v. Robert Allegra, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Patrick Mark Otlewski, U.S. Attorney's Office, AUSA, United States Attorney's Office, Chicago, IL, for Plaintiff.
Edward Marvin Genson, Vadim A. Glozman, Law Offices of Edward M. Genson, Chicago, IL, for Defendant.
("Allegra") has moved to suppress all statements he made during a post-arrest interview on March 25, 2015 after allegedly invoking his right to counsel. See
Miranda v. Arizona , 384 U.S. 436, 469–73, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Government counters that Allegra did not unambiguously invoke his right to counsel in a way that required its agents to stop questioning him. I grant Allegra's motion to suppress for the reasons stated below.
is a licensed pilot who owns an aviation business, Royal Palm Aviation, Inc., based in Westmont, Illinois. In or around December 2013, the Federal Bureau of Investigation ("FBI") and Drug Enforcement Agency ("DEA") launched a joint investigation into whether Allegra was using his private planes to engage in drug trafficking. The FBI/DEA investigation culminated in Allegra's arrest at the Van Nuys Airport near Los Angeles, California on March 25, 2015.
At the time of Allegra's
arrest, the Government believed he was about to fly two drug couriers carrying one hundred pounds of cocaine from Los Angeles to Chicago in exchange for $205,000 in total compensation. Allegra allegedly received a down payment of $30,000 in cash five days earlier from a Government informant and a check for $25,000 from the two drug couriers moments before he was arrested.
After his arrest, Allegra
was taken to the Los Angeles Airport police station and interviewed by DEA Special Agent Patrick Brosnan ("Agent Brosnan") and FBI Special Agent David Ostrow ("Agent Ostrow") (collectively, "the Agents"). The parties have not raised any factual disputes about what occurred during the interview, which was videotaped and later transcribed.
At the beginning of the interview, Agent Ostrow advised Allegra
of his Miranda rights and presented him with the FBI's standard waiver form. See Dkt. No. 27–1. Allegra
signed the form immediately below the following language: Id.
mentioned a lawyer three times during his interview. Although Allegra argues that only his third reference to counsel amounted to an invocation of his Miranda rights, I will describe all three references because determining whether a suspect invoked the right to counsel requires consideration of the full context preceding the alleged invocation. See U.S. v. Hampton , 708 F.3d 938, 945 (7th Cir. 2013) ().
After expressing his willingness to cooperate, Allegra
said, Tr. At 12.1 Agent Brosnan responded, "That's all up to you." Id. Allegra repeated his question: "Do you want me to work with an attorney?" Id. Once again, Agent Brosnan demurred: Id.
second reference to counsel occurred during an exchange in which he asked Agents Brosnan and Ostrow to clarify what benefits he would receive for cooperating. After the Agents rejected Allegra's attempt to negotiate the terms of his cooperation, he said, "I mean, I probably should have counsel then, because I don't know what you want me to tell you other than I got a check—you tell me that's your check and not...not whoever hired me, Jason's check?" Tr. at 14. Without any further discussion of counsel, the conversation then turned to the $30,000 in cash that Allegra received five days before his arrest. Id. at 14–15.
third and final reference to counsel occurred immediately after Agent Brosnan explained that Allegra would be charged and put in jail pending a bond hearing if he refused to cooperate. Id. at 15. That threat led to the following exchange:
Allegra
: Well, I need to talk to somebody because I don't know what I'm looking at right now. So can you provide me with an attorney?
Agent Ostrow: You want to speak to an attorney that's...
Allegra : So we can have one.
Agent Ostrow: That's your right if you want to talk to an attorney. That's absolutely fine and we respect that.
But what happens now is, basically, it's done. You get your attorney and then we will convene back in Chicago.
But right now you will be... you will be charged and you will be locked up today. But you want to speak to an attorney, that's fine. I respect that decision.
Allegra : I mean...
Agent Brosnan: I mean, it hurts you a little...I mean, like he said, it's up to you, you want to speak to an attorney, go ahead. But for you to help us, it would be better if you were out and you get more consideration if people didn't know you were arrested and you can go home and—
Allegra : But you guys aren't telling me what you want me to do.
: For me providing you what I know, what do you want me to do from there? That's just...I'm asking a straight up question.
Agent Brosnan: If you are truthful with us, we can get into other things that we think you are involved in and get some more...
The conversation then turned to how Allegra
knew someone named Jason or "Jay" who had hired him to make several flights. Id. at 16–17. Allegra eventually admitted that he agreed to fly cocaine from Los Angeles to Chicago for one of the Government's informants. Id. at 21, 23. He was later indicted for attempted possession of five or more kilograms of cocaine with intent to distribute in violation of 21 U.S.C. § 846.
has moved to suppress all statements he made after his third reference to counsel—"So can you provide me with an attorney?"—during his post-arrest interview. It is the Government's burden to show that Allegra"voluntarily, knowingly and intelligently" waived his right to counsel. Miranda , 384 U.S. at 444, 86 S.Ct. 1602 ; see also
J.D.B. v. North Carolina , 564 U.S. 261, 131 S.Ct. 2394, 2401, 180 L.Ed.2d 310 (2011).
Miranda held that "[i]f the individual [in custody] states that he wants an attorney, the interrogation must cease until an attorney is present." 384 U.S. at 474, 86 S.Ct. 1602. "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id. at 475, 86 S.Ct. 1602.
In Edwards v. Arizona , 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Court clarified that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Id. at 484, 101 S.Ct. 1880 ; see also Smith v. Illinois , 469 U.S. 91, 100, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (per curiam) (). "[H]aving expressed his desire to deal with the police only through counsel, [the suspect] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards , 451 U.S. at 484–85, 101 S.Ct. 1880.
"If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards." McNeil v. Wisconsin , 501 U.S. 171, 176–77, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) ().
The Supreme Court's leading case on how to determine whether a suspect has invoked the right to counsel during a custodial interrogation is Davis v. U.S. , 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Davis holds that "the suspect must unambiguously request counsel," measured in objective terms. Id. at 459, 114 S.Ct. 2350. "Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id. (internal quotation and citation omitted).
In contrast, "if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, [the Court's] precedents do not require the cessation of questioning." Id. (emphasis in original). The Court also declined to require officers to ask clarifying questions when a suspect's reference to counsel is ambiguous or equivocal. Id. at 461, 114 S.Ct. 2350.
The Supreme Court and the Seventh Circuit have held that a variety of verbal formulations are sufficient to invoke the Miranda right to counsel. See, e.g. , Smith , 469 U.S. at 96–97, 105 S.Ct. 490 (...
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