The opinion of the court was delivered by: Simandle, District Judge
HONORABLE JEROME B. SIMANDLE
OPINION UPON SUPPRESSION MOTION
I. Background and Procedural History
Defendant Biao Zhang is charged in a two-count indictment with wilfully and knowingly passing or attempting to pass approximately 52 counterfeit $100 Federal Reserve Notes between November 25, 1997 and December 2, 1997, in violation of 18 U.S.C. §§ 472 & 2, and also with scheming to defraud a bank by knowingly attempting to deposit 25 counterfeit notes into his bank account on November 25, 1997, in violation of 18 U.S.C. §§ 1344 & 2.
The defendant seeks to suppress oral statements made by him to Secret Service Agents on December 2, 1997, and oral and written statements made on December 5, 1997, on the ground that such statements were not voluntarily given. He alleges that prolonged questioning on December 2nd, coupled with a five-hour polygraph examination by a Secret Service polygraph examiner on December 5th, accompanied by exhortations to confess and threats of incarceration, rendered his oral and written confession after conclusion of the polygraph exam involuntary. In this regard, the principal issue involves alleged threats by a Secret Service Agent that, because his polygraph examination showed deception, the test would constitute powerful evidence against him in court, and he therefore ought to confess before it was too late. He became emotional and then did so, and now claims that these tactics overbore his will.
At the suppression hearing on January 6, 1999, the court heard the testimony of Special Agents Arthur Meletta and Thomas Depiano of the Secret Service, and the testimony of the defendant, Biao Zhang. Based upon the evidence at the hearing, I find the following facts.
On December 2, 1997, Special Agent Meletta responded to Summit Bank in Princeton, New Jersey, to investigate a deposit of 25 suspicious $100 bills, which he determined to be counterfeit. The deposit had been made on November 25th by Biao Zhang to his own account. As Meletta was in the bank lobby investigating between 2:30 and 3:00 PM, Mr. Zhang returned to the bank, where a bank employee pointed him out to Meletta.
Special Agent Meletta spoke to Zhang, identified himself as a Special Agent of the Secret Service, and told him that he was investigating counterfeit currency. He asked Zhang a few questions in the bank lobby, including his name and the source of the counterfeit notes. Zhang was cooperative and began to discuss the source, saying, "It all began with the incident" He turned over another 25 counterfeit notes to Agent Meletta, and said they were from the same source, namely, a briefcase he took from a roommate, Zhenhai Xie, who had allegedly assaulted him at the boarding house. Zhang and another roommate, Jianlan Zheung, had allegedly decided to retaliate against Xie for the assault and for an act of vandalism Xie had directed against Zheung's vehicle, which resulted in Zhang and Zheung stealing Xie's briefcase containing fifty-two $100 bills shortly before November 25th.
As the bank was closing, Meletta counted the money Zhang had just turned over and determined it too was counterfeit.
After about 10 minutes together in the bank lobby, Meletta asked Zhang if he was willing to accompany him to the Princeton Borough police station to discuss the matter further. Zhang accompanied Meletta in his unmarked van for the five-minute ride to the police station. Meletta did not bring Zhang back to the Secret Service office about 10-15 minutes away. (Tr. 59:1-15.)
At the Princeton Police Department, Special Agent Meletta asked for the courtesy of an interview room, which the local police granted, and he called Special Agent Newsome of the Secret Service to assist in the interview. Agent Newsome joined Agent Meletta and Mr. Zhang at the Princeton police station. The local police permitted them to use a first floor conference room for the interview.
At the outset of this interview, Agent Meletta read Zhang his Miranda rights from his Advice of Rights card (Ex. G-1), and Zhang appeared to understand those rights and said so, asking no questions. The interview continued about three hours, including time for developing or checking on information Zhang was supplying.
Meanwhile, one of the Princeton Police Officers thought he recognized Zhang from a motor vehicle incident. The police determined a municipal court warrant was outstanding for Zhang. The local police made this determination at about 7:00 P.M. and informed Agent Meletta.
According to Meletta's testimony, toward the end of the interview, Agents Meletta and Newsome asked Zhang whether he'd be willing to return in a few days to take a polygraph exam because Meletta believed Zhang knew the money was counterfeit before he came to the bank, even though Zhang continued to deny it. Zhang never admitted on December 2nd that he knew the money wasn't real, according to Agent Meletta. *fn1 In any event, Zhang agreed to return for the polygraph examination.
Zhang also consented to the search of his vehicle by signing a Consent to Search form (Ex. G-3) which is not at issue in this motion. The vehicle search continued until about 8:30 or 9:00 P.M. when they returned again to the police department. The Secret Service interrogation was over for the evening and Zhang was taken into Princeton Borough police custody to deal with the motor vehicle arrest warrant.
Zhang was released on bond for the municipal court matter later that evening. Two days later, on December 4th, Agent Meletta asked Zhang to come to the Trenton Secret Service office the next day, and Zhang agreed.
On December 5th, Special Agent Kevin Rice, a Secret Service polygraph examiner, administered the polygraph interrogation in a small windowless room at the Trenton Secret Service Office. Special Agent Rice obtained Zhang's signature on a "Polygraph Examination Statement of Consent" form (Ex. J1-D), witnessed by Special Agent Meletta, at 10:30 A.M. Zhang also signed the "Polygraph Examination Warning of Rights and Consent to Speak" form at 10:30 A.M. (Ex. J1-E). On the latter form, Zhang specifically initialed the portions indicating, "I have read this statement of my rights and it has been read to me, and I understand what my rights are," and, "I voluntarily waive my rights and I am willing to answer questions at this time." (Id.)
The questioning began, conducted by Special Agent Rice. Special Agent Meletta and Special Agent Thomas Depiano were usually outside the small room during the polygraph examinations, and Rice was the examiner. The questioning by Rice focused on several areas, one of which was whether Zhang had knowledge that the bills were counterfeit before he deposited them at the bank. The polygraph questioning continued for about five hours until 3:30 P.M. (Tr. 115-116), with pauses when Rice would interpret the responses and leave the room to consult with Meletta and Depiano. Several times during the course of the polygraph exam, Agent Rice would come out of the room and tell Agent Meletta that Zhang was being deceptive as to the one question of his prior knowledge which he continued to deny. (Tr. 120-122.) Rice told Meletta that Zhang was still having difficulty with that one question. (Id.) Rice didn't inform Meletta of any percentage of likelihood of deception, but he did tell Zhang toward the end of the repeated re-interviews that he was being deceptive.
During the five hours in the interview room, Zhang apparently never left, while Rice and the other agents would come and go. The polygraph device was set up at a desk. There were two chairs, no windows, and the size was about 10 x 10, according to Meletta. Agent Meletta had contact with Zhang during breaks in the examination, at one point asking whether Zhang wanted lunch, which Zhang declined about 12:30 P.M.
Agent Rice repeated his administration of the polygraph interrogation three or four times, and Zhang continued, on each round of interrogation, to deny knowledge and Rice read that response as being deceptive. (Tr. 123:23 to 125:16.) When the exam was concluded and Zhang would not change his denial of prior knowledge, Agent Rice advised Zhang and Agents Meletta and Depiano of the results and left about 3:30 P.M. According to Meletta, Rice had told Zhang the results of the test, that Zhang was being deceptive with the answers referring to whether he knew the money was counterfeit. (Tr. 118:1 to 120:2.) Zhang's testimony confirmed that originally Agent Rice advised Zhang of the polygraph examination results. (Tr. 211.)
Back in the interrogation room, Depiano and Meletta advised Zhang that the polygraph examination results showed he was being deceptive. (Tr. 128:6-13.) They said they wanted to afford him the one last opportunity to tell the truth.
Special Agent Meletta testified at various points about his advice to Zhang and about his understanding that the results of the polygraph exam could be admissible against Zhang, including the following excerpts.
On cross-examination, he testified as follows (Tr. 141:11 to 144:5 (objections omitted)):
"Q: Okay, so you go in and you tell Bill [Zhang] in the interview that if, if charges are brought against him, that this polygraph shows that he is lying, correct?"
"A: I'm not sure if I exactly tell him that. I mean I'm assuming he knows that's, that would be evidence brought into the case."
"Q: So, and you assume that it's evidence going to be brought into the case? [Objection]..."
"Q: You told Bill that there was evidence, now that he's being deceptive about the question as to when he knew that it was counterfeit, that is that he knew before he deposited, you told him you had evidence about that, you told him that could come in against him at trial and that it would come in against him, correct?"
"A: I don't know if I told him in those exact words that that would be used against you in a court of law. I'm assuming he realizes that he was being deceptive, we have that information and that's a tool that we could use."
"Q: Okay. And not holding you to the exact words, but that you led, let him know that that was evidence you had in the case that you could use as a tool, correct?"
"Q" Okay. And you also told him that the polygraph, that you also told him that Agent Rice is a qualified ...