Rutledge, 900 F.2d at 1129. His motion to suppress is denied.
VI. FETCHENHIER'S MOTION TO SUPPRESS
Defendant Fetchenhier seeks to suppress a statement made to government agents on January 18, 1989. FBI agents Richard Ostrom and Jeffrey Frank testified at the hearing on Fetchenhier's motion to suppress.
A. Findings of Fact
1. Sometime in the early evening of January 18, 1989, Assistant United States Attorney Ira Raphaelson and FBI agents Richard Ostrom and Jeffrey Frank went to Fetchenhier's home. Fetchenhier was not home, so the agents returned at approximately 6:30 p.m.
2. At 6:30 p.m. Fetchenhier answered the door, and the agents identified themselves. Fetchenhier indicated that he already knew Ostrom. The agents told Fetchenhier that they had been interviewing people for the last thirty-six hours, and Raphaelson commented "you don't seem surprised to see us." Fetchenhier shrugged and allowed the agents to enter his home.
3. The agents did not advise Fetchenhier of his Miranda rights. Raphaelson began the interview by telling Fetchenhier about the extent of the investigation, showed him some tapes, and told him that he was facing criminal charges, including violations of RICO. None of the agents mentioned forfeiture or the word "racketeering."
4. Very early in the interview, Fetchenhier told the agents that he "never took a dime illegitimately." The agents then asked him questions about specific trades, and asked him if he ever traded after the close of trading. Fetchenhier made general denials.
5. Ostrom told Fetchenhier that the investigation was a serious matter, that it was an FBI investigation rather than a Board of Trade investigation, and that it was not going to go away. The agents asked for Fetchenhier's cooperation, telling him that people who cooperated generally did better.
6. Ostrom mentioned a specific trade between himself and Fetchenhier. Fetchenhier replied that he had made "some trades of convenience."
7. Fetchenhier asked if he needed an attorney. At this point the agents stopped questioning Fetchenhier and asked him to keep the interview confidential. The agents then served Fetchenhier with a subpoena.
8. During the interview the agents did not make any threats or specific promises. Fetchenhier appeared perturbed rather than frightened during the interview.
B. Conclusions of Law
It is evident that Fetchenhier was not in custody at the time of the interview, so his Miranda rights could not have been violated. See Hocking, 860 F.2d at 772-73. Fetchenhier's main argument is that his statements were involuntary and the product of government coercion. The totality of the circumstances, however, indicate that Fetchenhier's statements were voluntary.
Fetchenhier did not ask the government agents to leave his home, nor did he refuse to answer questions until after making the statements sought to be suppressed. See Hocking, 860 F.2d at 773. Fetchenhier seemed to acknowledge that he was not surprised by the government's visit. Indeed, agent Ostrom testified that he seemed perturbed rather than frightened.
The evidence produced at the hearing established that the government agents did not threaten Fetchenhier, make any specific promises, or deceive him in any way. The agents did not mention the possibility of forfeiture under RICO. The agents did not make it impossible for Fetchenhier to make a rational choice as to whether to make statements. Rutledge, 900 F.2d at 1129. Fetchenhier's motion to suppress is denied.
As promised in the introduction, we gave separate consideration to each defendant's motion to suppress. We also noted there that the government's overall strategy in conducting the interviews was relevant to the individual motions to dismiss. This overall strategy became obvious after hearing the evidence presented at the five hearings.
The government had a well-thought out plan which it followed in conducting interviews of defendants. In conducting these interviews, the government clearly wanted to take defendants by surprise, because it wanted their cooperation. Indeed, the government admitted in the course of the hearings that it definitely wanted defendants to make incriminating statements. None of the defendants were advised of their Miranda rights, nor were they told that they did not have to speak to the Assistant U.S. Attorney or FBI agents. The government told defendants they were facing serious criminal charges, which was true. Part of the government's strategy was to scare these defendants, and to a certain extent it succeeded.
Another aspect of the government's strategy became clear at the hearing on Bergstrom's motion to suppress. Bergstrom made a statement denying any participation in illegal trades, and also indicated that he wished to consult with his attorney. At this point, after a short conference between the Assistant United States Attorney ("AUSA") and one of the FBI agents, the AUSA escalated the pressure on Bergstrom by explicitly setting out the potential penalties under RICO, including forfeiture. For all of the other defendants the government denies making any specific references to the penalties available under RICO.
As discussed above, we found that the Assistant United States Attorney's discussion of RICO penalties came after Bergstrom's exculpatory statement, and thus is not relevant to the question of whether his statement should be suppressed. The AUSA's statement does, however, shed a great deal of light on the government's strategy in conducting the interviews. The court is satisfied that, if we are correctly assuming that similar statements were not made to other defendants, it was only because there was no need to. The government was able to obtain statements from the other defendants and serve them with subpoenas without the defendants terminating the interviews.
We make the above observations so that neither side will be under the mistaken impression that this court is not fully aware of the purpose and extent of the government's strategy in conducting the interviews. The government was playing hardball. We make no comment on the propriety of the government's conduct in this case. Rather, we are called upon to decide whether the government's conduct caused these five defendants to make statements against their free will. In each case the evidence has demonstrated that defendants were not coerced into talking, but rather each made a rational decision to render a statement. Defendants' motions to suppress must thus be denied.