United States v. Haak

• Decision Date: 18 October 2016
• Docket Number: 15-CR-220(LJV)(JJM)
• Citation: 215 F.Supp.3d 218
• Parties: UNITED STATES of America, v. John HAAK, Defendant.
• Court: U.S. District Court — Western District of New York

215 F.Supp.3d 218

UNITED STATES of America,

v.John HAAK, Defendant.

15-CR-220(LJV)(JJM)

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

Signed October 18, 2016

Frank T. Pimentel, U.S. Attorney's Office, Buffalo, NY, for United States of America.

David R. Addelman, Addelman & Marszalkowski, PC, Buffalo, NY, for Defendant.

DECISION AND ORDER

LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

DECISION AND ORDER FOR THE SUPPRESSION OF EVIDENCE

The defendant, John Haak, is charged in a one-count Indictment with possession with intent to distribute, and distribution of, fentanyl in violation of 21 U.S.C. § 841(a)(1). The Indictment also charges under § 841(b)(1)(C) that "death...resulted from the use of such substance."

The defendant moved, inter alia , to suppress his statements made to government agents on March 4, 2015, and Magistrate Judge Jeremiah J. McCarthy issued a Report and Recommendation recommending that the statements be suppressed. For the reasons stated below, the defendant's motion is GRANTED insofar as it seeks suppression of his March 4, 2015 statements.

I. FACTUAL BACKGROUND

On March 4, 2015, Town of Hamburg Detective Sergeant and Drug Enforcement Administration Task Force Agent Glenn Zawierucha ("Detective Zawierucha") interviewed John Haak. Detective Zawierucha conducted the early afternoon interview at the Town of Hamburg Police Department in the presence of another officer. Haak came to the interview voluntarily and had his car with him at the police station.

Before the interview began, Detective Zawierucha gave Haak an incomplete rendition of the Miranda warnings: Haak was informed of his constitutional rights (1) to remain silent; (2) to consult counsel, who could be appointed to represent him free of charge, if necessary; and (3) to stop answering questions at any time. Haak was not told that anything he said could be used against him in a court of law, but he did verbally acknowledge his familiarity with the Miranda warnings, having received them once before. After Haak agreed to answer questions, he was told before, and several times during, the interview, that "[he was] walking out of here today" and that "anytime, we can stop, you can end this whole conversation, you can walk outta here."¹

The questions posed to Haak concerned both the distribution of drugs and the recent death of J.F., an acquaintance of Haak, from a fentanyl overdose

. Detective Zawierucha conversationally confronted Haak about his recent text messages that in both substance and frequency implicated Haak in supplying drugs to the deceased. In the words of the government, "...Zawierucha was seeking Haak's cooperation regarding the source of the fentanyl and any information Haak might have regarding other persons using the same drugs so that officers might prevent further fatalities." Docket Item 25 at 3.

During the course of the interview, Detective Zawierucha made several statements that give rise to the defendant's motion to suppress. For example, shortly into the interview, Detective Zawierucha told Haak that J.F. had died and that a federal investigation was in progress:

He overdosed on the fentanyl and died Saturday.... So you were the last person he was actually texting, and uh, the heroin that he shot up came from you.... But here's the thing. Sit back and relax, take a breath.

He then began to speak with Haak more directly about the purpose of their conversation:

Okay, you got a couple choices you can make right now. There's a multi-county, federal investigation where people are gonna get wrapped up in a conspiracy charge for distributing heroin containing fentanyl. Primarily the people that are the direct people that distributed this, especially if it caused a death, are gonna be the number one targets.... You don't need this shit—

Later, Detective Zawierucha said:

I'm not looking to screw you over, not lookin' even to come after you on this, but you need to make a conscious decision. Okay? I told you you're walking out of here, you are walking out of here. But there's a death investigation that this department here is investigating along with the Drug Enforcement Administration caused by heroin containing fentanyl that you sold to the deceased. Technically, could look very bad for you.... I'm not lookin' to mess with you, I'm not lookin' to come after you, but you gotta get on board or you, you shut your mouth and then the weight of the federal government is gonna come down on you.

Detective Zawierucha and the defendant also had the following exchange with respect to Haak's potential cooperation:

Zawierucha: Alright now here's the thing. I'm gonna ask ya, and it's your call. Either you can get on board, put the team jersey on here, play for this team, or you can be on the losing team.

Haak: I don't wanna be on that team.

Zawierucha: No? I'm just telling you, it's as simple as that, I'm making an analogy here. I'm looking for your cooperation on this, but you're gonna save yourself a world of hurt. Alright? Who's your plug?

Haak decided to play on the government's team. He provided the name of his drug supplier and agreed to participate in a controlled drug purchased from the named fentanyl dealer. About half of the thirty-three minute interview involved discussing, and planning for, Haak's controlled drug purchase. Docket Item 25 at 3.

Consistent with Detective Zawierucha's word, Haak walked out of the police station that afternoon. A few days later, the defendant cooperated in the drug purchase from his supplier. The next day, however, Haak learned that he had been cut from the team: on March 10, 2015, he was charged by federal criminal complaint for distributing, and conspiracy to distribute, heroin. W.D.N.Y. Docket No. 15–M–1018, Docket Item 1.

II. PROCEDURAL BACKGROUND

On December 1, 2015, Haak was indicted in the Western District of New York, and the case was referred to Magistrate Judge McCarthy. Docket Item 1; Text Order entered on December 8, 2015. On January 11, 2016, the defendant filed an omnibus motion seeking, among other things, to suppress his March 2015 statements. Docket Item 4 at 18-19 (pt. IX). The government responded on February 8, Docket Item 6, and Haak replied on March 14. Docket Item 9. Judge McCarthy heard oral argument on March 21 and resolved all issues except the defendant's request for a suppression hearing. See Docket Item 10.

On March 21, Judge McCarthy requested additional briefing by the parties on the suppression issue. Docket Item 13. In his request, Judge McCarthy candidly noted that he found the defendant's arguments in favor of suppression, including an alleged threat of prosecution, to be unconvincing. See Docket Item 13 ("I see nothing per se improper with a threat of prosecution if defendant did not cooperate."). But instead of simply denying the motion to suppress the statements based on those arguments, Judge McCarthy raised an issue of his own: whether the defendant's confession was voluntary or was coerced by false and misleading promises. Id. at 2-5. He therefore requested additional briefing on that issue. Id. at 6.

In response to Judge McCarthy's request, the defendant and the government simultaneously submitted memoranda addressing the voluntariness of Haak's March 2014 statements, Docket Items 18 & 19, respectively; they also submitted several informal briefings by e-mail, Docket Item 22. In these submissions, the parties agreed that the voluntariness of the defendant's statements warranted an objective analysis (i.e., that the defendant's testimony regarding his state of mind during the interview would not be necessary). In addition, the government raised a new, public-safety justification for denying the motion to suppress the defendant's statements. See id.

On July 8, 2016, Judge McCarthy issued his Report and Recommendation, recommending that the defendant's motion to suppress be granted. Docket Item 24. After he rejected the government's public-safety argument for denying suppression, Judge McCarthy found that the totality of the circumstances "clearly and convincingly demonstrate[d] that [Detective] Zawierucha caused defendant to confess, by creating the false impression that if he cooperated with the government he would not be prosecuted." Id. at 11 (footnote omitted). For that reason, and based on his finding that Haak's confession was involuntary, Judge McCarthy recommended to this Court "that defendant's motion...be granted to the extent that it seeks suppression of the statements [given to Detective Zawierucha], but that the remainder of the motion be denied as moot, having been withdrawn." Id.

The government timely objected to the Report and Recommendation, Docket Item 25, the defendant responded, Docket Item 27, and the government replied, Docket Item 29. On September 7, this Court heard oral argument on the government's objections, and both sides submitted additional papers on September 15 and 18. Docket Items 39 & 40.

This Court now has reviewed Judge McCarthy's Report and Recommendation, along with all papers and evidence submitted by both sides. After a de novo review, the Court accepts the Report and Recommendation of Judge McCarthy and grants the defendant's motion to suppress.

III. APPLICABLE LAW

A. Standard of Review

The court reviews de novo a magistrate judge's Report and Recommendation to suppress evidence in a criminal case. See 28 U.S.C. § 636(b)(1) ; Fed. Rule Crim. P. 59(b)(3). In conducting its review, the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

B. Voluntariness of Confessions

Whether Haak's statements to Detective Zawierucha should be suppressed hinges on whether his statements were voluntary.² The Fifth Amendment provides that "[n]o person...shall be compelled in any criminal case to be a witness against himself ... without due process of law." U.S. Const. Amend. V. The voluntariness inquiry, conducted under this Due Process Clause of the Fifth Amendment,...