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United States v. Pena

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


January 15, 1999

UNITED STATES OF AMERICA
v.
ARTHUR PENA, DEFENDANT.

The opinion of the court was delivered by: Simandle, District Judge

HON. JEROME B. SIMANDLE

OPINION

This matter is before the court on the motion of defendant, Arthur Pena, to suppress certain statements he made to law enforcement agents in a post-indictment interview following his arrest in the early morning hours of January 13, 1998. Pena claims that law enforcement agents violated his Sixth Amendment right to counsel *fn1 by proceeding to interview him after disregarding a request to consult with an attorney he allegedly made during the course of his arrest at his home. Based on the evidence presented at the suppression hearing on November 2, 1998, the court finds that Pena did not invoke his right to counsel during his arrest at his home, and that his statements were given only after he received, understood and waived his Miranda rights, including his right to have counsel present. Accordingly, the court denies Pena's motion to suppress his post-arrest statements.

BACKGROUND

Arthur Pena is a seventeen year veteran of the West New York Police Department ("WNYPD") who participated in making approximately 800 arrests during his career. This motion arises out of an arrest in which Pena was on the receiving end.

On January 12, 1998, a federal grand jury in Newark, New Jersey returned a sixty-nine count indictment charging that nine members of the WNYPD, including the Chief, and several private citizens conspired and acted together to corrupt the WNYPD through a racketeering scheme that included extortion, bribery, gambling and prostitution. Pena was one of the police officers charged in that indictment. *fn2

On January 13, 1998, at approximately 6:00 a.m., agents from the Federal Bureau of Investigation ("FBI") and the Internal Revenue Service ("IRS") arrested Pena at his home on Tonnelle Avenue in North Bergen, New Jersey. In a pretrial motion to suppress certain inculpatory statements he made during interviews by government agents at the FBI office in Newark, New Jersey later that morning, Pena alleged that he made a request to speak to an attorney during the course of his arrest at his home that was ignored by the FBI and IRS agents effectuating the arrest. Based on Pena's proffer, the court scheduled a pre-trial suppression hearing.

At the suppression hearing on November 2, 1998, the United States presented the testimony of FBI Special Agent Robert Cooke, the agent in charge of the team assigned to arrest Pena at his home on the morning of January 13, 1998. On direct examination, Cooke testified that his knock at the front door of Pena's house at approximately 6:00 a.m. was answered by an older woman, who looked out from an interior door and waved in response to his explanation that he wished to speak to Arthur Pena. After the older woman withdrew back into the house, Arthur Pena opened the interior door. Cooke advised Pena that he was with the FBI, and Pena then opened the exterior door. Cooke then advised Pena that he was under arrest. (Transcript of November 2, 1998 Suppression Hearing ("Tr.") at 13:15 - 14:16.)

Another agent then asked Pena if he had a gun in his hand. Pena acknowledged that he did, but indicated that he would put it down. Pena turned and walked quickly into the kitchen of the house, placed the gun on a counter, and walked away from it. (Tr. at 15:19 - 16:3.) After the gun was secured, Cooke advised Pena that he would have to place Pena in handcuffs pursuant to the arrest warrant. Pena requested permission to get dressed first, which Cooke granted, so Cooke and another agent proceeded up a rear stairwell to a bedroom at the top of the stairs. (Tr. 16:24 - 17:12.)

Cooke testified that Pena did not ask to speak to an attorney at any point during this first phase of the arrest:

Q: Would you please tell us, then, what happened when you got to the top of the stairs? Well, let me withdraw. While you were downstairs and you first notified the defendant that he was under arrest, did, at any time, did he ask for an attorney?

A: No, he did not.

Q: Did he tell you that he had retained an attorney ad that he wanted to speak to that attorney?

A: No, he had not. (Tr. 17:13-21.)

Cooke testified that he gave Pena a copy of the arrest warrant in the upstairs bedroom before Pena changed from his pajamas into a sweatshirt and sweatpants, socks and shoes. After Pena was dressed, Cooke handcuffed Pena behind his back. Because Pena's hands were cuffed behind his back, Pena asked him to hold the arrest warrant for him. Cooke, the other agent and Pena then returned to the first floor of the house.

Cooke estimated that he, the other agent and Pena were in the upstairs bedroom for about two to four minutes. (Tr. at 17:22 - 18:15.) Cooke testified that Pena did not ask to speak to an attorney during that time:

Q: During any, during those two to four minutes while you're with the defendant upstairs in the bedroom, did he ask you for an attorney?

A: No, he did not.

Q: Did he ask for the opportunity to speak to an attorney?

A: No he did not.

Q: Did he tell you that he had previously retained an attorney who he wanted to speak to?

A: He did not. (Tr. 18:16-24.)

When Cooke, the other agent and Pena returned to the first floor of the house, Pena's family was gathered in a room off to the side of the front doorway. Cooke instructed other agents to escort Pena outside so that he could advise Pena's wife about where they would be taking her husband. Cooke explained to Mrs. Pena that they would be taking her husband to the FBI office for processing, after which they would take him to court for his initial appearance. Cooke gave Mrs. Pena the telephone number of the FBI office in Newark so that she could call to check on her husband's status. (Tr. 198:25 - 20:1.)

Cooke estimated that his conversation with Pena's wife lasted for about a minute, during which time Pena was just outside the house waiting to be escorted to a car for the ride to the FBI office in Newark. Cooke testified that neither Pena nor his wife said anything about contacting an attorney during that time:

Q: During the entire time frame when he was in the house, were you -- inside, were you with Mr. Pena, the defendant?

A: Yes.

Q: And during any portion of the time that you were in the house, did he ask you for an attorney?

A: No, he did not.

Q: Did he tell you he had previously retained an attorney that he wanted to then speak to?

A: No, he didn't.

Q: You spoke with his wife. During the conversation with his wife, did she tell you that he had an attorney?

A: No, she didn't.

Q: Did she tell you that he had previously retained an attorney who she wanted to speak to?

A: No, she did not. (Tr. at 20:13 - 21:2.)

After finishing his conversation with Pena's wife, Cooke and the other agents escorted Pena to a car parked around the corner for transport to the FBI office in Newark. Cooke testified that IRS Agent Cecelia McGarr read Pena his Miranda rights after Pena had been situated in the back seat of the car. Cooke estimated that the entire arrest, from the time he knocked on the door until the time he escorted Pena to the car for transport to Newark, took approximately ten minutes. (Tr. at 21:3-23.)

Cooke testified that after McGarr read Pena his Miranda rights from an FD-395 advice of rights form in the car, Pena indicated that he understood his rights but did not invoke his right to remain silent or his right to request that an attorney be present during questioning. In fact, Pena told Cooke and McGarr made statements along that lines that he had done nothing wrong, that he couldn't understand what his arrest was all about, and that he had cooperated with FBI Special Agent Monks when Monks had visited WNYPD headquarters once during the course of his investigation. McGarr did not ask Pena to sign the waiver of rights form while they were in the car on the way to Newark. (Tr. at 21:24 -23:22.)

Cooke testified that Pena did not ask to speak to an attorney at any point during the approximately thirty minute trip to FBI headquarters in Newark:

Q: During the trip, the one-half hour trip to Newark, did the defendant ask for an attorney?

A: No, he didn't.

Q: Did he tell you that he had previously hired an attorney who he at that point wanted to speak to?

A: No, he did not. (Tr. at 24:2-7.)

Upon arrival at the FBI office in Newark, FBI personnel took Pena's photograph and fingerprints and obtained certain background information from him. After this process was completed, Cooke asked Pena if he was willing to be interviewed by FBI agents and Pena said that he was. Cooke, McGarr and Pena then proceeded to an interview room where Cooke again read Pena his Miranda rights from the same FD-395 form McGarr had used in the car. After reading Pena his Miranda rights from the form, Cooke asked Pena if he understood his rights, and Pena said that he did. Cooke then read Pena the waiver of rights section of the form and asked Pena if he was willing to waive his rights. Pena said that he was. Cooke then asked Pena to sign the waiver of rights form, and Pena did, also noting the time (7:50 a.m.) on the form. (Tr. at 24:23 - 28:6.)

Cooke testified, and the court finds, that Pena did not appear to have any difficulty understanding his rights as they were read to him, and that Pena did not ask to speak to an attorney when he executed the waiver of rights form or during the ensuing interview conducted by Cooke and McGarr. (Tr. at 29:7-22.)

The interview conducted by Cooke and McGarr took approximately forty minutes. Thereafter, Pena consented to a second interview conducted by Monks in the presence of Cooke, McGarr and IRS Agent Betsy Ricardi. During a break in the second interview, at approximately 10:30 a.m., Pena asked to use a restroom. Upon exiting the restroom, Pena asked Cooke to telephone his wife to let her know that he was okay. Cooke placed a call to Pena's home, but got an answering machine. Cooke did not leave a message. Cooke informed Pena of the result of the call, and Pena asked him to try again later on. Monks and Cooke then completed the second interview. (Tr. at 29:14 - 31:7.)

Cooke testified, and the court finds, that Pena did not invoke his right to remain silent or his right to counsel at any time during the second interview, including the restroom break. (Tr. at 31:8-18.)

Upon the completion of the second interview, Cooke again attempted to reach Pena's wife by telephone. This time, Cooke succeeded in reaching her. Mrs. Pena asked to speak to her husband, and Cooke escorted Pena to the telephone. When Pena hung up the telephone, he informed Cooke that his wife had hired an attorney for him. Cooke testified that this was the first time Pena had advised him that he had an attorney. Cooke also testified that from that point on, there was no further questioning of Pena. (Tr. at 31:19 - 32:21.)

On cross-examination, Cooke admitted that he made no notes of the events that transpired at Pena's house on the morning of January 13, 1998, and that the portion of his February 11, 1998 report recounting those events was based exclusively on his recollection, handwritten notes taken by McGarr, and conversations with McGarr between January 13, 1998 and February 11, 1998. (Tr. at 32:25 - 41:8.) Nevertheless, Cooke testified confidently and without equivocation about his recollection of those events.

For example, Cooke testified emphatically that he presented Pena with the arrest warrant in the upstairs bedroom when Pena was changing clothes, not on the first floor of the Pena home:

Q: Okay. And at the time you walked into -- what part of the building were you in with Arthur Pena when you advised him that he was under arrest, what part of the house?

A: I was standing just outside the outside door. He was in the foyer and he just opened up the door so that we could speak with him.

Q: Okay. I know he asked, obviously, not to go over this once again, what is your purpose for being here, and you said you're here to place him under arrest or he's under arrest, correct?

A: Yes.

Q: Now, at that point he opened the door more, you said that he had a handgun and he placed that down on the counter?

A: He walked back inside the house and placed the gun on the counter in the kitchen.

Q: Now, is it at this point that you presented him with what is the government's Exhibit 1, the arrest warrant?

A: No.

Q: You had the arrest warrant in your possession at that time?

A: Yes.

Q: Okay. Would you have had, if you recall, would you have had that in your hands, in your pocket; do you know where you kept that, that document?

A: I don't recall whether I had it in like a pocket. I probably had both hands free at that time because we still had the gun out there.

Q: Now Arthur Pena goes upstairs to change and then he comes back down into -- what area would he come back down into after he descended from the bedroom?

A: I'm not even sure what room it was. But as you come back down, you're kind of in an open area, and I think it's almost a straight line to the front door from there, but I don't recall the room well enough to really describe it.

Q: Okay. Is it at this point that he's presented with the arrest warrant? I assume he's presented with the arrest warrant in his home; is that fair to say?

A: Yes.

Q: Okay.

A: I believe -- it's my recollection, I believe my report reflects, that I gave him a copy of the warrant when we were upstairs in his bedroom.

Q: Okay. So that's your testimony as to where the arrest warrant was physically handed to Arthur Pena?

A: Yes. (Tr. at 44:3 - 45:4; 46:7-24.)

Cooke testified that he did not have any conversation with Pena at Pena's house during the arrest other than Pena's requesting permission to get dressed and Pena's asking Cooke to hold the warrant for him after he was handcuffed. (Tr. at 50:4-17; 51:19 - 52:5.) Cooke also testified that he did not recall any conversation between Pena and his wife regarding an attorney while they were at Pena's house. (Tr. at 51:10-18.)

Pena did not testify at the suppression hearing. Instead, Pena's wife, Soraya Pena, testified about the events that occurred at the Pena house on the morning of January 13, 1998. Soraya Pena's account of those events differed from Cooke's in two significant respects.

First, Soraya Pena testified that an agent presented her husband with a copy of the arrest warrant in the living room on the first floor of the house shortly after her husband admitted the agents into the house, that her husband responded by telling the agent that he wanted to call a lawyer, and that the agent denied the request:

Q: And what happened once they came back into the house?

A: My husband took them into the living room and he put the lights on. Then there was this tall guy, who I guess an agent, and the first thing they said to him was can we have your gun.

Q: Okay. And what did your husband do?

A: He gave them his gun.

Q: And what happened after this, after your husband Arthur Pena gave him the gun?

A: Then they, the same guys said to him we have a warrant for your arrest. So he said, you got to be kidding me.

Q: Okay. Now where is this conversation taking place?

A: In the living room.

Q: Okay. Now detail for us, or just tell us how far away from you husband and this agent -- who is telling your husband he's under arrest -- you are from what's taking place?

A: Four feet.

Q: Okay. Now, what happens after this agent says Mr. Pena, you're under arrest?

A: My husband says, you've got to be kidding me. Then he said no, and he handed him something. When Arty looked at it, he says I can't believe this.

Q: Okay, now did you see the actual -- strike that. Was it a paper that was handed to him? Could you tell if it was a paper?

A: Yeah, it was a paper.

Q: Okay. Did you ever read that paper or see what that paper said?

A: No.

Q: But as a result of this document being handed or this paper being handed to your husband, he responded, I can't believe this?

A: Right, I can't believe this. I said at that time, I said to him what's going on? He ways I'm arrested, I'm being arrested. I said why? He says I don't know. So -- he calls me Sue. He says I don't know, Sue; I have no idea.

Q: Now what happened after this, after this?

A: He turned back facing the guy who had given him the paper and gave back the paper, and at that point he says I want to call a lawyer.

Q: Now, where were you when Arthur Pena made this comment to this agent?

A: I'm still standing by the door of the living room. I have glass doors. I'm still standing there.

Q: Okay, now there was an agent that was in this courtroom before, you might have seen him as he walked out. Was that the agent that Mr. Pena told he wanted an attorney?

A: Yes.

Q: And what happened when Arthur Pena told that agent that he wanted an attorney?

A: He said not now. You have to get dressed. We have to leave. (Tr. at 57:8 - 59:11.)

This testimony is at odds with Cooke's testimony that he presented Pena with the arrest warrant in the second floor bedroom while Pena was getting dressed and that Pena never requested an attorney at any time during the arrest.

Soraya Pena also testified that she had a brief conversation with her husband after the agents brought him down from an upstairs bedroom dressed and handcuffed and before they led him away to their car, during which her husband urged her to call WNYPD Captain Thomas O'Donnell to obtain the telephone number of an attorney:

Q: Okay. Now, when he's coming down the stairs you say he's handcuffed and he's dressed; what happens at this point? Do you have any conversation with the agent or with Arty?

A: No. He comes and he stand him right in front of us in the living room. Then I said to him, I went up to him, I touched his face, and I said to him, what's going on?

Q: Whose face?

A: My husband's face.

Q: Okay.

A: And he says, I don't know; I have no idea what's going on. Then he asked me for water and I gave him water.

Q: And then what happened after that?

A: Then they said we have to go. They started taking him out. My kids were yelling, we love you daddy. As he's already outside, he said to me, I want you to call Captain O'Donnell, ask him for the telephone number of the lawyer, and call my mother. (Tr. at 60:18 - 61:10.)

This testimony is at odds with Cooke's testimony that he did not recall any conversation between Pena and his wife regarding an attorney while they were at the house.

Soraya Pena also testified about her efforts to contact an attorney for her husband after he was taken away from the house and to advise her husband of her progress in that regard. As her husband had instructed, she called O'Donnell to obtain the telephone number of an attorney. O'Donnell gave her the beeper number of an attorney and told her to call him back if she was unable to reach the attorney. At approximately 7:40 a.m., using a telephone number Cooke had given her earlier that morning, Soraya Pena called the FBI office in Newark, allegedly to inform her husband that she had contacted an attorney on his behalf. The person who answered her call that someone would call her back, but no one did for approximately an hour and a half. When an agent finally called her and advised her that her husband had been talking with them, she asked to speak to her husband. Arthur Pena was not aware of his wife's earlier telephone call and had not seen an attorney up to that point of the morning. (Tr. at 61:19 - 66:13.) As noted below, however, Soraya Pena did not actually speak to an attorney about representing her husband until sometime after 10:26 a.m. that morning.

On cross-examination, Soraya Pena admitted that to the best of her knowledge, her husband had not retained an attorney prior to the morning of January 13, 1998 in connection with possible criminal charges against him arising out of the ongoing federal investigation of the WNYPD. (Tr. at 74:20 - 75:25.) Soraya Pena explained that her husband instructed her to call O'Donnell to obtain the telephone number of an attorney because she did not know any attorneys. (Tr. at 76:1-13.)

Soraya Pena also admitted that she did not tell Cooke when Cooke gave her the telephone number of the FBI office in Newark that her husband had an attorney or that she intended to give the telephone number to an attorney so that an attorney could contact her husband at the FBI office. In fact, Soraya Pena admitted that she never gave the number of the FBI office to an attorney so that an attorney could reach her husband at the FBI office and that she had no knowledge of any attorney attempting to reach her husband at the FBI office while he was being questioned. (Tr. at 78:16 - 79:12.)

Soraya Pena also admitted that when she called the FBI office at approximately 7:40 a.m. that morning, she had not yet actually spoken with an attorney who had agreed to represent her husband in connection with his arrest that morning:

Q: All right. I note there is a number noted 622-5613 where you called the Bureau, at 7:40 a.m.

A: Right.

Q: Now, at that time had you spoken to an attorney?

A: No, I didn't actually speak to an attorney, and I had a message from an attorney who is a friend of John Bruno who is the attorney I spoken to. John Bruno tells me that he can't represent my husband because he's already has a client, but that he would get somebody else to come in for him.

Q: Well, so at this point -- I'm sorry, ma'am, maybe I was going too quickly, you had spoken to an attorney prior to calling the FBI?

A: I -- right, but he wasn't the attorney who was going to represent my husband, though.

Q: I see. Well, maybe I'm confused. I thought I had kind of gone through the phone messages that I note on this pad leading up to the 622-5613 number, I thought I had kind of addressed all of them, but I don't see an attorney's number that you had reached?

A: The -- I called the attorney on the beeper. I called John Bruno at the beepers. They're all local numbers. It wouldn't appear here. I had a message from Kevin Carley telling me that he will meet with my husband. I had a message on my answering machine that he's a friend of John Bruno's and he will meet with my husband at the court.

Q: So this happened after you paged Mr. Bruno?

A: Right, Mr. --

Q: That you reached out to the FBI at 622-5613?

A: After I had the message from Mr. Carlin on my answering machine.

Q: Okay. You had already successfully paged Mr. Bruno?

A: Right.

Q: And it was at this time that you were reaching out to 622-5613 to speak to the FBI?

A: Right, correct. But after I had paged Bruno, I had spoken to Bruno and I had a message from Mr. Carlin. (Tr. at 84:9- 85:19.)

In fact, when confronted with her telephone bill for the morning of January 13, 1998, Soraya Pena acknowledged that she probably did not page Bruno until 10:26 a.m. that morning. (Tr. at 85:20 -88:3.) Thus, it would have been even later when Bruno returned Soraya Pena's page and spoke to her, and later still when Bruno referred her to Carlin, who then left an message on Soraya Pena's answering machine.

In response to questioning by the court, Soraya Pena continued to assert that she had paged Bruno and received a return telephone call from Bruno and a telephone message from Carlin before she called the FBI office in Newark at 7:40 a.m. The court finds that her recollection is incorrect, however, because she was unable to provide a cogent explanation for the undisputed fact that the first call to Bruno's beeper that appears on her telephone bill was at 10:26 a.m. (Tr. at 94:15 - 97:17.) Thus, the court finds that Pena had no attorney who was representing him, or even considering representing him, when he executed the waiver of rights form at approximately 7:50 a.m. and proceeded to give statements to the FBI and IRS agents investigating the case.

DISCUSSION

A criminal defendant who is subjected to post-indictment custodial interrogation by law enforcement authorities has a right to counsel that emanates from two distinct sources. As part of its protection against compelled self-incrimination, the Fifth Amendment entitles a criminal defendant to the assistance of counsel in any custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 471-72 (1966). Additionally, the Sixth Amendment guarantees a criminal defendant the assistance of counsel "at or after the time that judicial proceedings have been initiated against him -- `whether by way of formal charge, preliminary hearing, indictment, information or arraignment.'" Brewer v. Williams, 430 U.S. 387, 398 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)(plurality opinion)).

In Edwards v. Arizona, 451 U.S. 477, 484 (1981), the United States Supreme Court held that "when an accused has invoked his [Fifth Amendment] 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." On the contrary, "an accused . . . having expressed his desire to deal with the police only through counsel, 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." Id. at 484-85.

In Patterson v. Illinois, 487 U.S. 285, 290-91 (1988), the Supreme Court rejected the argument that Edwards precludes law enforcement authorities from initiating a post-indictment interview of a defendant who has not invoked his Sixth Amendment right to have counsel present. The Court observed that "[t]he fact that petitioner's Sixth Amendment right [to counsel] came into existence with his indictment, i.e., that he had such a right at the time of his questioning, does not distinguish him from the preindictment interogatee whose [Fifth Amendment] right to counsel is in existence and available for his exercise while he is questioned." Id. "Preserving the integrity of an accused's choice to communicate with police only through counsel is the essence of Edwards and its progeny -- not barring an accused from making an initial decision as to whether he will face the State's officers during questioning with the aid of counsel, or go it alone." Id. at 291. Thus, the court held that an accused who knowingly and intelligently waives his Fifth Amendment right to counsel by responding to questioning by law enforcement authorities after having been advised of his Miranda rights will generally also be deemed to have waived his Sixth Amendment right to have counsel present at that questioning. Id. at 296-97.

In light of Edwards and Patterson, the critical inquiry in the present case is whether Pena invoked his Fifth and/or Sixth Amendment right to counsel before the FBI and IRS agents who arrested him at his home on the morning of January 13, 1998 initiated their interview of him at the FBI office in Newark later that morning. Pena claims that he invoked his right to counsel during the course of his arrest at his home that morning, but there is conflicting evidence on this point. Cooke, the arresting agent, testified at the suppression hearing that Pena never requested counsel and that such a request would have been honored had it been made. Soraya Pena, the defendant's wife, testified at the suppression hearing that her husband told Cooke that he wanted to call an attorney after Cooke presented him with a copy of the arrest warrant, but that Cooke disregarded the request. Soraya Pena also testified that her husband told her as he was being led out the door of their home to call O'Donnell to ask for the telephone number of a lawyer, which Cooke does not recall.

In evaluating this conflicting evidence, the court may assess the credibility of the witnesses and choose to believe or disbelieve the testimony offered based upon its credibility determinations. See United States v. Broussard, 80 F.3d 1025, 1035 (5th Cir.), cert. denied sub nom., U.S. , 117 S. Ct. 264, 136 L. Ed. 2d 189 (1996)(crediting law enforcement agents' testimony that defendant did not invoke right to counsel over defendant's wife's testimony that he did); United States v. Valle, 72 F.3d 210, 213-14 (1st Cir. 1995) (crediting law enforcement agents' testimony that defendant did not invoke right to counsel over defendant's testimony that he did); United States v. DePew, 932 F.2d 324, 327 (4th Cir.), cert. denied, 502 U.S. 873 (1991) (crediting law enforcement agent's testimony that defendant did not invoke right to counsel over defendant's testimony that he did); United States v. Hagan, 913 F.2d 1278, 1282 (7th Cir. 1990) (crediting law enforcement agents' testimony that defendant did not invoke right to counsel over defendant's testimony that he did); United States v. Sanko, 787 F.2d 1249, 1251 (8th Cir. 1986) (crediting law enforcement agent's testimony that defendant did not invoke right to counsel over defendant's testimony that he did). As the party seeking to introduce Pena's post-arrest statements, however, it is the government that bears the burden of proving the admissibility of the statements by a preponderance of the evidence. U.S. v. Palermo, 937 F. Supp. 474, 480-81 (W.D. Pa. 1995)(citing United States v. Coades, 468 F.2d 1061, 1064 (3d Cir. 1972)). Thus, if the government fails to rebut Pena's claim that he made a request for counsel that was ignored by the arresting agents, the court would have no choice but to suppress Pena's post-arrest statements. See United States v. Browne, 891 F.2d 389, 394-95 (1st Cir. 1989).

At the outset, the court rejects the government's argument that Pena's execution of a waiver of rights form and subsequent participation in two interviews conducted by FBI and IRS agents at the FBI office in Newark on the morning of his arrest proves that it is unlikely that Pena invoked his right to counsel during his arrest at his house earlier that morning. It is well-settled that "an accused's postrequest responses to further interrogation may not be used to cast doubt on the clarity of his initial request for counsel." Smith v. Illinois, 469 U.S. 91, 92 (1984). "Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together." Id. at 98. An accused's postrequest responses to interrogation "are relevant only to the distinct question of waiver." Id. at 100. Accordingly, the court will not consider Pena's execution of the waiver of rights form or his subsequent participation in two interviews conducted by government agents in deciding whether Pena invoked his right to counsel during the court of his arrest at his house earlier that morning.

Nevertheless, based on its assessment of the credibility of Cooke and Soraya Pena, the court finds that Pena never invoked his right to counsel during the course of his arrest at his home in the manner described by Soraya Pena at the suppression hearing, or otherwise. Specifically, the court does not believe Soraya Pena's testimony that her husband told Cooke that he wanted to call an attorney after being handed a copy of the arrest warrant in the living room on the first floor of the house. This assessment tales into account the demeanor of both Soraya Pena and Cooke while testifying, as well as Soraya Pena's demonstrable confusion regarding the chronology of the mornings events and Cooke's emphatic testimony that he presented Pena with a copy of the arrest warrant in a second floor bedroom while Pena was getting dressed.

The court finds Cooke's testimony about where he presented Pena with the arrest warrant to be particularly persuasive in deciding whether Pena invoked his right to counsel in the manner described by Soraya Pena because Cooke had no knowledge that Soraya Pena would infuse this otherwise trivial and inconsequential detail with such significance and, therefore, no motivation to lie about it. Cooke testified at the suppression hearing before Soraya Pena did. Furthermore, Cooke's testimony at the suppression hearing about handing Pena a copy of the warrant in the second floor bedroom while Pena was getting dressed was consistent with the account he set forth in his February 11, 1998 report -- ten months before Soraya Pena would claim that her husband requested to speak to an attorney in response to being handed the arrest warrant by Cooke in the living room. *fn3 Under these circumstances, the court finds Cooke's testimony on this point to be more reliable and trustworthy than Soraya Pena's.

The court does believe Soraya Pena's testimony that her husband instructed her to call O'Donnell to obtain the telephone number of a lawyer as he was being led away from the house by the arresting agents, despite the fact that Cooke does not recall any such conversation between Pena and his wife. Indeed, Soraya Pena's well-documented subsequent efforts to contact an attorney for her husband through O'Donnell corroborate her testimony that she was instructed to call O'Donnell for assistance in finding an attorney for her husband. The court finds, however, that this communication between Pena and his wife was not an effective invocation of Pena's right to counsel.

In order to trigger the protection of Edwards, a suspect's invocation of his right to counsel must be unambiguous. Davis v. United States, 512 U.S. 452, 459 (1994). The standard for determining whether a suspect has unambiguously invoked his right to counsel is an objective one: the suspect "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. Law enforcement officers are not required to refrain from further questioning "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." Id. Furthermore, law enforcement officers are not required to respond to such an ambiguous or equivocal reference to an attorney by asking questions designed to clarify whether the suspect intended to invoke his right to counsel before continuing with their interrogation, even though it may be "good police practice" to do so. Id. at 461-62. "If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." Id.

In Flamer v. Delaware, 68 F.3d 710, 725 (3d Cir. 1995), cert. denied, 516 U.S. 1088 (1996), the Third Circuit held that a defendant's request to the magistrate at his arraignment for permission to call his mother to inquire about bail and possible representation by an attorney "failed to meet the requisite level of clarity" under Davis to constitute an unambiguous invocation of his right to counsel triggering the prophylactic protection of Edwards. Likewise, Pena's instruction to his wife as he was being led away from his house by the arresting agents to call O'Donnell to obtain the telephone number of an attorney is not so clear an articulation of a desire to communicate with the authorities only in the presence of an attorney such that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. At best, Pena's statement to his wife was an ambiguous and equivocal reference to counsel that triggered no obligation on the part of the arresting agents to refrain from questioning Pena or to ask clarifying follow-up questions.

Pena well knew that he merely had to request the opportunity to speak with counsel, or to have counsel appointed for him, and he would not have to answer any questions. He knew this because he was twice so informed, once informally in the car on the way to the FBI office Newark, and again, formally, after arrival at the FBI office in Newark. Pena made no such request.

Finally, the court notes that Soraya Pena's efforts to contact an attorney on her husband's behalf after his arrest on the morning of January 13, 1998 have no bearing on the validity of her husband's formal waiver of his right to counsel at approximately 7:50 a.m., notwithstanding her claim that she had retained an attorney to represent her husband in connection with his arrest by the time she telephoned the FBI office in Newark at 7:30 a.m. First, the Supreme Court decided in Moran v. Burbine, 475 U.S. 412, 421 (1986), that the failure of the police to advise a suspect in custody that an attorney had telephoned the police station and offered to represent him at the suspect's sister's behest had no bearing on the validity of the suspect's subsequent waiver of his Fifth Amendment right to counsel because "[e]vents occurring outside the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right." Indeed, "[o]nce it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law." Id. at 422-23. Thus, Pena's waiver of his Fifth Amendment right to counsel is valid because he had been advised of his Miranda rights and understood them, and there is no suggestion that he was coerced into waiving them.

Furthermore, although the Supreme Court suggested in Patterson that an accused's purported waiver of his Sixth Amendment right to counsel would not be valid if the accused was not advised that his attorney was trying to reach him during questioning, Patterson, 487 U.S. at 296 n.9, it is clear in the present case that Pena had no attorney when he elected to waive his right to counsel at 7:50 a.m. and that no attorney attempted to reach Pena at the FBI office while he was being questioned. Despite her persistent assertions to the contrary, it is clear that Soraya Pena had not spoken with any attorney by the time she called the FBI office in Newark at 7:30 a.m. on the morning of January 13, 1998. The first and only attorney Soraya Pena spoke to that morning was Bruno, and the first and only call to Bruno's pager number that appears on her telephone bill is at 10:26 a.m. It was after making this call to Bruno that Soraya Pena eventually spoke to Bruno, who advised her that he was unable to represent her husband but that he would attempt to arrange for another attorney to represent her husband. Soraya Pena then received a telephone message from Carlin, who told her he would see her at the arraignment and who, in fact, appeared on behalf of Pena at the arraignment that afternoon. Soraya Pena admitted that she did not give the telephone number of the FBI office in Newark to any attorney that morning, and that to the best or her knowledge no attorney attempted to telephone her husband at the FBI office that morning. Thus, there is no basis in the evidence upon which the court could conclude that Pena's waiver of his Sixth Amendment right to counsel was invalid.

CONCLUSION

For the foregoing reasons, the court finds that Pena did not invoke his right to counsel at any time before he knowingly and intelligently waived his Fifth and Sixth Amendment right to counsel on the morning of January 13, 1998, and made the statements to law enforcement agents he now seeks to suppress. Accordingly, the court denies Pena's motion to suppress.

JEROME B. SIMANDLE U.S. District Judge

Dated: January 15, 1999

ORDER

THIS MATTER having come before the court on the motion of defendant, Arthur Pena, to suppress certain statements he made to law enforcement officers in a post-indictment interview following his arrest on January 13, 1998, on the grounds that the statements were obtained in violation of his Sixth Amendment right to counsel, and the court having considered the submissions of the parties and having received evidence and heard the argument of counsel at a suppression hearing on November 2, 1998, and for the reasons set forth in the accompanying Opinion;

IT IS on this day of January, 1999, hereby ORDERED that Pena's motion to suppress is DENIED.

JEROME B. SIMANDLE U.S. District Judge


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