United States v. O'Neill

• Decision Date: 17 November 2016
• Docket Number: 15-CR-151W
• Parties: United States of America v. Michael O'Neill, Defendant.
• Court: U.S. District Court — Western District of New York

United States of America v. Michael O'Neill, Defendant.

15-CR-151W

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

November 17, 2016

Decision and Order and Report and Recommendation

I. INTRODUCTION

In his own words, defendant Michael O'Neill ("O'Neill") "blew [his] foot off" (Dkt. No. 46-1 at 28) during an explosion in his family's garage in the early morning hours of July 21, 2015. First responders tended to O'Neill and law enforcement agents entered the garage to determine the cause of the explosion. The discovery of what looked to the agents like fireworks and homemade bombs prompted a cascade of events that led to this case. Law enforcement agents notified the Erie County Bomb Squad and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") to secure the garage that day. By noon on July 21, law enforcement agents obtained a state search warrant to search the garage and the family home for evidence of fireworks and explosive devices. Two days later, this Court signed a criminal complaint charging O'Neill with possession of unregistered firearms in violation of 26 U.S.C. § 5861(d). A grand jury later indicted O'Neill for similar statutory violations pertaining to the unlawful making and possession of a destructive device. The Hon. Elizabeth A. Wolford has referred this case to this Court under 28 U.S.C. § 636(b). (Dkt. No. 12.)

On February 26, 2016, O'Neill filed omnibus pretrial motions including motions to suppress evidence obtained from the family garage, from the execution of the state search warrant, and from certain hospital interviews that occurred. (Dkt. No. 46.) The Government filed its responses on March 16, 2016. (Dkt. No. 47.) The Court heard oral argument on March 29, 2016 (Dkt. No. 51) and held a suppression hearing on July 20, 2016 (Dkt. No. 67). After considering all of the parties' papers including supplements and post-hearing briefing, the Court issues its decisions and recommendations as described below.

II. BACKGROUND¹

A. Initial 911 Call and Warrantless Search

This case concerns allegations that O'Neill unlawfully made and possessed pipe bombs and components of explosive devices in his family's garage. When the alleged activity began is unknown. What is known is that the alleged activity came to the attention of law enforcement through a 911 emergency call from O'Neill's mother around 3:38 AM on July 21, 2015. (See Dkt. No. 46-1.)² Early in the call, O'Neill's mother Linda Ross ("Ross") reports an explosion in the garage, a garage that is detached from the family home at 6761 Walmore Road. O'Neill's mother reported smoke and fire coming out of the garage. During the call, the 911 operator confirmed that O'Neill suffered a severe injury to his left foot and that everyone had evacuated from the garage. When Ross gave final confirmation of the garage's evacuation, she commented that"there's no fire." (Id. at 30.) Whether Ross reversed her prior observation of smoke and fire, or whether she meant to say that any fire that she saw ended quickly, is not clear; the Niagara County Sheriff field case report seems to make the former scenario more likely. (See Dkt. No. 46-1 at 25 ("When I arrived I was immediately advised by William Ross and Linda Ross that there was no fire, but there had been some kind of explosion in the garage and that Linda's son, Michael O'Neill, was severely injured."); see also Dkt. No. 47-1 at 3 ("Upon initial investigation of the scene, it was determined that there was no fire, but there appeared to have been an explosion which caused the injury to MICHAEL'S left foot.").)

Niagara County Sheriff's Deputies were the first emergency personnel to arrive at the garage after the 911 call. Emergency medical personnel arrived shortly thereafter to tend to O'Neill. The Deputies observed that the garage was full of smoke and that the explosion occurred in the back part of the garage. Over O'Neill's objection "to not touch his 'stuff' and to stay away from his 'stuff'" (Dkt. No. 46-1 at 25) the Deputies isolated the garage from further entry by anyone except emergency responders. The Deputies then entered the garage to determine the cause of the explosion and found "what appeared to be gun powder and a possible pipe bomb made from a flashlight. At this time we backed out of the garage until we could get assistance with handling explosives on scene." (Dkt. No. 47-2 at 3.) The Deputies arranged for Erie County Bomb Squad and ATF agents to respond to the scene for further investigation. The following paragraph from the pre-indictment complaint summarizes what law enforcement agents found while trying to determine the cause of the explosion:

While in the garage, officers discovered what appeared to be an area of the garage where explosive devices were being manufactured. Officers discovered whatappeared to them to be an explosive powder and BB's in plain view. Upon further inspection, Bomb Squad personnel discovered what preliminarily appeared to be seven improvised explosive devices. Six of the devices were constructed of hard cardboard tubing, sealed ends, and a fuse. One of those devices was labeled, "Powder w/Nails." An additional device was made out of a flash light with sealed ends and hole with a wick coming from the center. Other items discovered on the property include two pill bottles labeled as flash powder, one bag of potassium perchlorate, thirty-six shotgun shells reloaded with fragments inside, one plastic bottle of triple seven powder, one plastic box of triple seven pellets, and plastic bottle labeled as triple seven powder.

(Dkt. No. 1 at 3; see also id. at 4 ("On July 22, 2015, Erie County Sheriff's Bomb Squad Commander Dan Walczak x-rayed the device labeled 'Powder w/Nails.' The x-ray revealed nails packed into the device. The device was then disassembled. Inside the device were multiple nails, BB's and suspected flash powder."); Dkt. No. 9-1.)

B. Statements at ECMC

Emergency medical personnel took O'Neill to Erie County Medical Center ("ECMC"). O'Neill underwent amputation of his left leg below the knee. While O'Neill recovered from surgery at ECMC, law enforcement agents visited him at different times to interview him. One of the agents who interviewed O'Neill was Jason Bernhard ("Bernhard") from the ATF. Bernhard went to ECMC around 4:00 PM on July 21 with Niagara County Sheriff's Deputy William Evans ("Evans"). Hospital staff gave Bernhard and Evans permission to go to O'Neill's room. (Dkt. No. 68 at 9-10 (hereinafter [9-10]).) Bernhard inquired whether O'Neill were in any condition to be interviewed, given his injury and any medications administered, but hospital staff left the issue for Bernhard to determine. [27.] When Bernhard and Evans arrived at the room, they found O'Neill there with Ross. [11.] Bernhard told O'Neill that he and Evans were not there in an adversarial posture; Bernhard said that "we're not here to be adversarial with you. We're just looking to figureout what happened to you today." [38]; see also generally Gov't Ex. 1 (Audio CD on file).³ Prior to arriving at ECMC, though, Bernhard considered O'Neill a criminal suspect and wanted to gather evidence against him. [30.]

The interview then proceeded. Bernhard did not consider O'Neill under arrest and did not administer Miranda warnings. [12-13.] Bernhard even told O'Neill that he was not under arrest. [14.] During the interview, none of the three men raised his voice at any time. [13.] Neither Bernhard nor Evans ever displayed a firearm [14], though Bernhard had one and could not recall whether it had been visible to O'Neill [33]. Bernhard also could not recall whether he had handcuffs with him. [33.] Bernhard knew that O'Neill had prior law enforcement experience, but Ross did mention that O'Neill had familiarity with legal terms. [14-15.] O'Neill asked whether he could face charges, and Bernhard said yes. [15.] O'Neill also told Bernhard that he knew that Bernhard could lie to him during the interview. [16.] Bernhard acknowledged that O'Neill was right but asserted that no deception was occurring at that time. [16.] Bernhard then asked O'Neill to explain what happened. O'Neill

explained that he had been watching YouTube videos about M80s and removing tree stumps, and he had made some M80s. And then while he was making some, he was using a heat gun gluing—I would call I guess the cartridge. And while he was gluing the M80, it ignited, it dropped on the floor, and he attempted to put it out, and it went off.

[15.] O'Neill expressed his view that the explosive that he was creating "was legal depending on how you use it." [16.] At some point in the interview, O'Neill used the phrase "mens rea." [16.]

When Bernhard asked O'Neill questions about BBs and nails found at the scene, O'Neill responded by saying, "I invoke." [17.] Bernhard understood that phrase to mean that O'Neill was invoking his Miranda rights and that "he may not want to talk to us anymore." [45.] After O'Neill "invoked," he asked Bernhard questions about items that might have been seized from the family residence. [17.] As Bernhard's interview drew to a close, he told O'Neill to talk to Ross about whether they still wanted to talk to law enforcement agents. [18.] Bernhard then introduced O'Neill and Ross to Joseph Taylor ("Taylor"), a Niagara County Sheriff's Deputy and member of the FBI's Joint Terrorism Task Force. [18.] Bernhard and Evans then left the room for a while. [18, 53.] Bernhard never asked O'Neill to sign any statements. [37.] Bernhard made sure that Taylor knew that O'Neill used the word "invoke." [46.]

Taylor interviewed O'Neill next, accompanied by two other agents. Taylor did not see any signs that O'Neill might be impaired by medication. [54.] The agents began the interview with a conversation about items that had been found in the garage. [55.] During the conversation, O'Neill said that he was familiar with the Joint Terrorism Task Force. [55.] O'Neill's statement struck Taylor as...