US v. Minkowitz

• Decision Date: 15 June 1995
• Docket Number: No. CR-94-734 (SJ).,CR-94-734 (SJ).
• Parties: UNITED STATES of America, Plaintiff, v. Menachem Mendel MINKOWITZ, Defendant.
• Court: U.S. District Court — Eastern District of New York

889 F. Supp. 624

UNITED STATES of America, Plaintiff, v. Menachem Mendel MINKOWITZ, Defendant.

No. CR-94-734 (SJ).

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

June 15, 1995.

Zachary W. Carter by Ron White, Asst. U.S. Atty., Brooklyn, NY, for plaintiff.

Louis M. Freeman of Freeman, Nooter & Ginsberg, New York City, for defendant.

JOHNSON, District Judge:

After reviewing the record, this Court hereby affirms and adopts the Report and Recommendation issued by Magistrate Judge Roanne L. Mann on March 31, 1995 in the above-referenced matter, and it is hereby

ORDERED that the Defendant's motion to suppress his statements concerning the Marcus credit cards be GRANTED.

SO ORDERED.

REPORT AND RECOMMENDATION

MANN, United States Magistrate Judge.

The defendant, Menachem Mendel Minkowitz ("defendant" or "Minkowitz"), stands indicted for various offenses arising out of his alleged participation in a scheme to import into the United States automobiles stolen from Canadian rental agencies, in violation of 18 U.S.C. §§ 371, 1029, 2312, and 2313(a). Prior to trial, Minkowitz moved to suppress certain post-arrest statements made by him following his request for an attorney. In an order dated December 21, 1994, the Honorable Sterling Johnson, Jr., referred defendant's motion to the undersigned to conduct an evidentiary hearing and to report and recommend a disposition of defendant's suppression motion.

This Court held a hearing on February 7, 1995, at which the sole witness was Special Agent John Raffa of the United States Customs Service. The following findings of fact and conclusions of law are based on the proof presented at that hearing, together with the criminal complaint filed against Minkowitz on May 13, 1994. For the reasons that follow, it is the recommendation of this Court that defendant's motion to suppress his post-arrest statements be granted.

Findings of Fact

On May 13, 1994, a warrant for Minkowitz's arrest was issued in this District, based on a complaint sworn to by Customs Agent Anthony Wash. The complaint alleged, among other things, that an individual named Menachem Mendel Katz had been arrested on April 27, 1994, at the New York/Canadian border near Buffalo, as Katz had attempted to travel into the United States in a late model Jeep Cherokee rented by Katz using a fraudulent identification document and credit card in the name "Paul Schochet." (Complaint at ¶¶ 1-4.) Following his arrest, Katz told the agents that Minkowitz had provided him with the false identification and credit card, along with instructions on how to commit the crime. (Id. at ¶¶ 5-6.) At the agents' request, Katz placed a consensually monitored and recorded telephone call to Minkowitz, who made incriminating statements about the need to retrieve the false identification from the stolen vehicle. (Id. at ¶ 7.)

Armed with the warrant, Agent Wash and five other Customs agents, including Raffa, set out to effectuate Minkowitz's arrest on June 15, 1994. At a briefing session early that morning, Agent Wash displayed a photograph of Minkowitz and informed his fellow agents that he had secured a warrant for Minkowitz's arrest for theft of automobiles. (H. 5-6, 74).¹

Minkowitz was arrested at approximately 1:00 p.m. in his Brooklyn neighborhood. (H. 6-7.) The arresting agents had no doubt that the person taken into custody was the "Minkowitz" named in the complaint. (See H. 74.)

Minkowitz was transported to Customs headquarters by Agent Wash and another agent; Agent Raffa returned to the office in a different car. (H. 9-10.) Shortly after his arrival at headquarters, Raffa was informed by Wash that Minkowitz had asked to speak with an attorney. (H. 10-11, 35-36.)

Agent Raffa then went to the "processing" area, where arrestees are fingerprinted, photographed and interviewed for "pedigree" information. (H. 11-12.) Upon learning that pedigree information had not yet been obtained from Minkowitz, Agent Raffa agreed to "take his personal history." (H. 13.) Raffa retrieved the necessary forms and sat across a desk from Minkowitz, who was not then in handcuffs. (H. 13-14.)

Agent Raffa commenced the interview by handing Minkowitz a "Statement of Rights" form (GX 3500-A-1),² asking him to read it to himself, and then reading the contents aloud to him. (H. 15-17, 42.) The form contained the following advice:

You have the right to remain silent.

Anything you say can be used against you in court, or other proceeding.

You have the right to consult an attorney before making any statement or answering any question, and you may have him present with you during questioning.

You may have an attorney appointed by the U.S. Commissioner or the Court to represent you if you cannot afford or otherwise obtain one.

If you decide to answer questions now with or without a lawyer, you still have the right to stop the questioning at any time, or to stop the questioning for the purpose of consulting a lawyer.

HOWEVER —

You may waive the right to advice of counsel and your right to remain silent and answer questions or make a statement without consulting a lawyer if you so desire.

(GX 3500-A-1.) When asked by Raffa if he was willing to sign the form, Minkowitz agreed to do so but reiterated that he wanted to speak with an attorney. (H. 17, 42.) Agent Raffa replied that "after the processing was finished," Minkowitz "would have that opportunity to speak with an attorney once he arrived ... at the U.S. courthouse." (H. 46, 17; see H. 65.) Raffa's statement to Minkowitz was consistent with the agent's general practice to tell an arrestee who requests an attorney that he will have access to one after he provides a "personal history." (H. 39.) Agent Raffa did not tell Minkowitz that he had a right to decline to answer pedigree questions (H. 65; see H. 48); nor did he view Minkowitz's signature on the "Statement of Rights" as a waiver of the defendant's constitutional rights. (H. 48-49.)

After Minkowitz's request to speak with an attorney, Agent Raffa proceeded to fill out two personal history forms, including one utilized by the United States Marshal's Service in this District. (H. 18-22; GX 3500-A-2, GX 3500-A-3.) Raffa recorded the answers provided by Minkowitz to questions such as his date of birth. (H. 22.) Each form also contained a section for "aliases"; when Minkowitz stated that he had none, Raffa left the corresponding sections blank. (H. 22-23, 68-69.)

After Raffa had completed the two personal history forms, a fellow agent placed on the desk in front of Raffa Minkowitz's wallet and its contents, including several American Express cards. (H. 23, 53-56, 69.) When Agent Raffa picked up the credit cards he observed that they were in the name "David L. Marcus." (H. 23.) Raffa showed Minkowitz the cards and asked if they belonged to him. (H. 24, 26.) Minkowitz stated that they were his, and Raffa then inquired whether Minkowitz had utilized the name "David L. Marcus" as an alias. (H. 24, 26.) Minkowitz acknowledged that he done so "in the past." (H. 24, 26.) Agent Raffa then inserted "David L. Marcus" in the alias section of each of the forms he had previously completed. (H. 24; GX 3500-A-2, GX 3500-A-3.)

Recognizing that the use of an alias "is important ... in law enforcement" (H. 27), Raffa promptly informed Agent Wash of Minkowitz's use of the Marcus alias (H. 26-27) and prepared a memorandum on that subject the following day. (H. 27-29; GX 3500-A-4.) On cross-examination, Agent Raffa testified that he had asked Minkowitz "no questions about this investigation except involving the two credit cards that were found on his person." (H. 45) (emphasis added). It is his answers to questions concerning the credit cards that Minkowitz now seeks to suppress.

DISCUSSION

The facts underlying this suppression motion are essentially undisputed: both sides agree that Minkowitz twice invoked his right to counsel before providing the post-arrest statements at issue here. The parties differ sharply, however, as to the legal consequences of defendant's assertion of that right.

Relying on United States v. Carmona, 873 F.2d 569 (2d Cir.1989), the government contends that a defendant's invocation of his right to counsel or to remain silent is "wholly irrelevant" to the admissibility of statements made during a "pedigree interview." (Government's Proposed Findings of Fact and Conclusions of Law "Gov.Br." at 9.) In contrast, defendant contends that Carmona was wrongly decided (Defendant's Proposed Findings of Fact and Conclusions of Law "Def.Br." at 14-16), and that the Supreme Court's decisions in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), mandate that law enforcement officers "cease all questioning whenever a defendant requests an attorney." Def.Br. at 16 (emphasis in original). Contrary to the extreme positions staked out by the government and the defense, an examination of the relevant case-law reveals that no per se rules have been announced by the courts. Rather, as detailed below, the admissibility of a post-invocation custodial admission turns on whether the statement was made in response to a routine "booking" inquiry, which in turn requires a careful examination of all the surrounding circumstances.

The law is well settled in this Circuit that solicitation of an arrestee's identity and background normally does not amount to custodial interrogation within the meaning of either Miranda (see United States v. Montana, 958 F.2d 516, 518 (2d Cir.1992); United States v. Adegbite, 846 F.2d 834, 838 (2d Cir.1988); United States v. Gotchis, 803 F.2d 74, 78-79 (2d Cir.1986); United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112-13 (2d Cir. 1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 884, 47 L.Ed.2d 101 (1976)), or Edwards (see United States v. Carmona, supra, 873 F.2d at 573; United States v. Stewart, 770 F.Supp. 872, 879 (S.D.N.Y.1991); United States...