United States v. Gonzalez

UNITED STATES OF AMERICA

v.FREDDY GONZALEZ, Defendant.

S1 08 CR 684 (SAS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: November 29, 2011

OPINION AND ORDER

SHIRA A. SCHEINDLIN, U.S.D.J.:

I. INTRODUCTION

Gonzalez was indicted on July 24, 2008, in a single-count sealed Indictment charging him with the intentional murder of Carlos Polanco (the "Queens Homicide"). That same day, July 24, 2008, Magistrate Judge Frank Maas issued an arrest warrant. At the time he was indicted, Gonzalez was incarcerated at the McRae Correctional Facility in Georgia, where he was serving a term of imprisonment for illegal re-entry, set to expire on August 27, 2008. The day after the Indictment and warrant were issued, July 25, 2008, four law enforcement agents - Billy Ralat, former Detective Stefano Braccini of the New York City Police Department, and Detectives Wilson Gonzalez and John Geiss of the City of Yonkers Police Department - visited Gonzalez at the McRae facility. The agents were hoping to obtain a statement from Gonzalez about his involvement in the Queens Homicide and three other unsolved murders. Although these four agentsknew that Gonzalez had been indicted, they did not intend to arrest him that day. In fact, they did not know whether an arrest warrant had been issued for Gonzalez's arrest.¹

Ralat, a criminal investigator with the U.S. Attorney's Office for the Southern District of New York, took the lead during the questioning of Gonzalez. As a result of Ralat's questioning, Gonzalez provided written statements implicating himself in four homicides (the "Confessions"). The next business day, July 28, 2008, the U.S. Attorney's Office obtained and lodged a writ ad prosequendum, thereby facilitating Gonzalez's transport to this District. Gonzalez was brought before a Magistrate Judge for presentment on August 15, 2008. An S1 Superseding Indictment was filed on April 14, 2009, charging Gonzalez with three additional murders.

Gonzalez has moved to suppress the July 25 statements allegedly elicited in violation of his Fifth and Sixth Amendment rights. In particular, Gonzalez argues that his Confessions were elicited involuntarily in violation of his right to due process. Gonzalez further argues that he unambiguously invoked hisright to remain silent and his right to the assistance of counsel. Accordingly, he argues that his Confessions were obtained in violation of his rights under the Fifth Amendment to the United States Constitution, Miranda v. Arizona² and Edwards v. Arizona³ Finally, Gonzalez argues that his Sixth Amendment right to counsel was violated because he was already under indictment for the Queens Homicide at the time of the jailhouse interrogation. For the following reasons, Gonzalez's motion to suppress is denied in its entirety.

II. DISCUSSION

A. Gonzalez Knowingly and Voluntarily Waived His Miranda Rights While Failing to Invoke His Right to Counsel

Gonzalez signed two Miranda waiver forms: one in Spanish, co-signed by Ralat and Detective Gonzalez at 11:24 a.m.; and the second in English, signed by the same signatories at 12:30 p.m.⁴ Other than being in different languages, the only difference between the two waivers is that Gonzalez wrote "NO" in response to Question # 6 in the first waiver and "Si" in the second waiver in response to the same question, which states: Now that I have advised you ofyour rights, are you willing to answer questions? Because of the "NO" in the first waiver, defense counsel argued that:

[t]he [C]onfessions obtained from Mr. Gonzalez were elicited involuntarily and through the use of coercive pressures, violating his right to due process of law. Furthermore, once Mr. Gonzalez had unambiguously invoked his right to remain silent and his right to the assistance of counsel, any further questioning by the agents was prohibited under the Fifth Amendment, Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981). Finally, because Mr. Gonzalez was already under indictment for the crime charged under count one of the instant Indictment at the time of his jailhouse interrogation, his statements regarding that crime were also obtained in violation of his Sixth Amendment right to counsel.⁵

In support of these arguments, Gonzalez submitted an Affidavit in both English and Spanish.⁶ To test the veracity of defendant's underlying factual assertions, I held a hearing which began on September 26, 2011, continued on September 28, 2011, and concluded on October 4, 2011.⁷

The Government argued, pre-hearing, that the violations alleged by defendant were based on an incorrect factual predicate.⁸ According to the Government, the agents did not violate Gonzalez's rights to remain silent and to counsel because

[a]fter Gonzalez signed the first Miranda form, the agents prepared to leave. It was Gonzalez who then told the agents, in substance and in part, that they had misunderstood him and that he in fact wanted to speak with them. . . . Even after Gonzalez insisted on speaking with the agents, the agents went through Gonzalez's options, ensured that Gonzalez understood his rights to remain silent and to counsel and wanted to waive them, and even had Gonzalez sign a new Miranda form memorializing that knowing waiver.⁹

Upon review of the testimony of the four Government witnesses at the hearing, and the inconsistencies therein noted by defense counsel, I find that the Government has presented the more credible version of what actually transpired during the prison interview in McRae, Georgia.

Ralat testified that he and the other agents arrived at the McRae correctional facility at 11:00 a.m.¹⁰ Ralat and Detective Gonzalez were the onlySpanish-speaking agents.¹¹ The four agents met Gonzalez in an unlocked visiting room and began the questioning at approximately 11:15 a.m.¹² Gonzalez signed the first Miranda waiver form at 11:24 a.m.¹³ Gonzalez wrote "NO" in response to Question # 6 on the first Miranda waiver, which stated in Spanish: "Now that I have advised you of your rights, are you willing to answer questions?"¹⁴ Upon seeing the word "NO," Ralat testified as follows:

I turned to the other investigators in the room and I told them the meeting is over. He signed no for number 6. We then proceeded to stand up. Detective Braccini was actually to my right. I remember him specifically talking about, can we bump our flight up to get out of town as early as possible. And I turned to him and I told the defendant that the meeting was over with. And he told me why? I want to talk to you. Don't leave.¹⁵

Not sure what to do at this point, Ralat turned to the other agents and they collectively decided to sit down again with Gonzalez and fully explain to him the benefits of cooperation.¹⁶ If, at the end of this explanation, Gonzalez decided hewanted to speak to the agents, Ralat would re-Mirandize him before continuing.¹⁷ Ralat testified as to why he made this decision.

Because I felt it was important that he [Gonzalez] fully understand what was going on. It seemed like he was confused. He originally tells me he wants to speak to me, I give him the Miranda form, he then signs no. And then when we get up to leave he then says not to leave, that he wants to speak to us. There was confusion and I didn't want to continue under that state. I felt that it was best that I explained again the system, where we were going, that he was coming to New York, that was a different system than he had experienced in the past, and if he elected to speak to us that he was doing it of his own free will, and that's exactly what happened.¹⁸

Ralat's comprehensive explanation took approximately forty to fifty minutes to complete.¹⁹ At the end of his explanation, Ralat handed Gonzalez another Miranda waiver form. Ralat inadvertently provided Gonzalez with a Miranda waiver form in English the second time around.²⁰ At 12:30 p.m, Gonzalez answered "si" to every question on this second Miranda waiver form.²¹ According to Ralat, neitherhe nor the other agents questioned Gonzalez about any of the murders before he signed the second Miranda form.²² The following questions were asked during Ralat's cross-examination:

Q. You specifically told Detective Geiss, he, meaning, Mr. Gonzalez, is not willing to talk to us, we got to go, or words to that effect, correct?

A. Correct.

Q. And at 11:24, between 11:24 and let's say 12:30 or so, you did not speak to Mr. Gonzalez specifically about the Queens homicide, did you?

A. No.

Q. And between 11:24 and 12:30 or so, Mr. Gonzalez did not speak to you about the Queens homicide, did he?

A. That's correct.

Q. And after you observed Mr. Gonzalez wrote no at 11:24, you didn't talk to him about any murder cases at all, Queens, Yonkers, anything at all, did you?

A. That's correct.

Q. And between 11:24 and 12:30 or so, you didn't speak about any substance of any of the murders, did you?

A. That's correct.²³

After Gonzalez signed "Si" to every question in the second Miranda waiver form, Ralat began to question him, in Spanish, about the Queens Homicide.²⁴ Gonzalez began writing his first written statement, which concerned the Queens Homicide, at 12:50 p.m.²⁵ At 1:15 p.m., Gonzalez signed his first written statement, which was then co-signed by Ralat and Detective Gonzalez.²⁶ Shortly after Gonzalez made his first written statement, Detective Geiss began questioning him about the Yonkers murders.²⁷ Detective Geiss then showed Gonzalez some photographs and it was at this point in the questioning that Gonzalez began answering Detective Geiss in English.²⁸ The Government has conclusively established that Gonzalez is fluent in English as evidenced by, inter alia, his filing of a legal document in English in another matter.²⁹

Gonzalez made two written statements about the Yonkers homicides: he began writing the second statement about the double homicide at 2:25 p.m. and completed it at 2:40 p.m.; he began the third statement about the single Yonkers murder at 2:55 p.m....