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United States v. Pena

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. ...


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