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UNITED STATES v. DEMPSEY

June 1, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
MARTIN J. DEMPSEY, et al., Defendants


George M. Marovich, United States District Judge.


The opinion of the court was delivered by: MAROVICH

GEORGE M. MAROVICH, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 The motions dealt with in this opinion are very similar to motions to suppress previously ruled upon by Judge Hart in United States v. Bailin, 736 F. Supp. 1479 (N.D. Ill. April 19, 1990), a similar case involving the Japanese yen pit of the Chicago Mercantile Exchange. Judge Hart noted that while it may seem that it would never be in the best interest of a criminal suspect to respond to questions, suspects do make admissions because, for whatever reason, they believe that cooperating with the authorities is the best course of action to follow. Id. at 1. The fact that statements do not appear to be in the best interests of a suspect does not necessarily indicate that the statements were not intentionally made. See Id. Suppression of an admission is only appropriate if circumstances prevent the suspect from making a rational choice between making a statement or remaining silent. Id. at 1-2; Weidner v. Thieret, 866 F.2d 958, 963 (7th Cir. 1989); United States v. Rutledge, 900 F.2d 1127 (7th Cir. 1990).

 The statements at issue in this case stem from a series of interviews conducted by Assistant United States Attorneys and FBI agents between January 17 and January 19, 1989 at the homes of defendants Dempsey, Nowak, Bergstrom, Mittlestadt, and Fetchenhier. While each of these defendants has presented an individual motion, and each motion must be considered separately to determine if each individual's statement was voluntary, we will not ignore the similarity between the interviews or the fact that all occurred as part of a definite government plan. The government's overall strategy in conducting these interviews is relevant as part of the "totality of the circumstances" surrounding each individual interview, and also bears on the credibility of the parties' assertions as to what happened in the individual homes.

 The main issue raised in defendants' motions to suppress is whether defendants' statements were voluntary. Defendants argue that their statements were not voluntary but were obtained only through government threats, promises, and psychological pressure. The issue of defendants' sixth amendment right to counsel has not been raised in connection with these interviews because the interviews were all conducted before the institution of adverse legal proceedings, so that defendants' sixth amendment rights had not yet arisen. Defendants did argue in their motions to suppress that the statements were taken from them in violation of their Miranda rights, but did not press this argument at the hearings, and in fact the evidence from the hearings demonstrates that none of the defendants were in custody at the time of the interviews. The issue of whether defendants' Miranda rights were violated is thus not prominent, leaving the voluntariness of defendants' statements as the main issue for this court to consider. The individual hearings on defendants's motions were held between May 7 and May 14, 1990. We find that each motion to suppress should be denied.

 II. DEMPSEY'S MOTION TO SUPPRESS

 Defendant Dempsey seeks to suppress statements made to government agents at an interview at his home on January 17, 1989. FBI agents Richard Ostrom and Jeffrey Frank testified at the hearing on Dempsey's motion to suppress.

 A. Findings of Fact

 1. At approximately 10:45 p.m. on January 17, 1989, Assistant United States Attorney ("AUSA") Ira Raphaelson and FBI agents Richard Ostrom and Jeffrey Frank (collectively referred to as "the government" or "government agents") went to Dempsey's home and knocked on his door. No one answered the door, though the government agents noticed a light on in the house, and the agents drove a short distance from the house.

 2. AUSA Raphaelson then phoned Dempsey, identified himself, told him the government agents were in the neighborhood, and asked him if the agents could come to his home. Dempsey agreed.

 3. The government agents proceeded to Dempsey's home and again knocked on the door. Dempsey answered the door and invited the government agents in after they identified themselves. The parties then sat down at Dempsey's dining room table.

 4. The government did not advise Dempsey of his Miranda rights. The entire interview lasted about one hour and forty-five minutes, during which time Dempsey made allegedly incriminating statements.

 5. AUSA Raphaelson began the interview by telling Dempsey that Agent Ostrom, who was known to Dempsey as trader Richard Carlson, was really an FBI agent who had taped conversations with Dempsey. Raphaelson went over the possible charges facing Dempsey, but no one mentioned the possibility of forfeiture of Dempsey's assets. Agent Ostrom showed Dempsey some of the tapes the government had, but did not play them.

 6. When Dempsey asked what would happen to him, the government informed him that people who cooperate generally "do better." No other statement was made about cooperation.

 7. About half way through the interview, Dempsey asked if he needed an attorney. Raphaelson told him that he worked for the government and that Dempsey would have to decide the question for himself.

 8. At some point in the interview, Dempsey told agent Ostrom, "Rick, I knew you were an FBI agent." Dempsey indicated that he had learned this from another trader at a cocktail party in November.

 9. The conversation between Dempsey and the government agents was businesslike, though Dempsey appeared nervous. No threats were made, nor did Dempsey ever refuse to talk to the agents or ask them to leave.

 10. The interview ended cordially, with Raphaelson asking if he could call Dempsey for another interview. About a half hour after the agents left, Raphaelson again called Dempsey, telling him that there would be press coverage of the investigation but that Raphaelson would not leak the interview to the press.

 B. Conclusions of Law

 In his motion to suppress, Dempsey argued that the government violated his Miranda rights. This argument was not pressed at the hearing, however, and it is apparent that the government was not required to give him the Miranda warnings. The warnings are only required if a defendant is in custody. United States ex rel. Link v. Lane, 811 F.2d 1166, 1170 (7th Cir. 1987) (quoting Miranda v. Arizona, 384 U.S. 436, 439, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)). Dempsey was never in custody during this interview; none of the facts suggest that Dempsey could have believed that he was not free to leave or that he could not have asked the government agents to leave. See United States v. Hocking, 860 F.2d 769, 773 (7th Cir. 1988), which is discussed below.

 Dempsey argues that his statement was involuntary and the result of psychological pressure exerted upon him by the government rather than the product of his own free will. In determining whether a statement is voluntary a court must look to the "totality of the circumstances" surrounding the statements, taking into account factors such as the characteristics of the accused and the length of the interrogation. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). A statement is involuntary if it is not the product of the defendant's free choice but rather was made because the defendant's will was "overborne." Culombe v. Connecticut, 367 U.S. 568, 602, 6 L. Ed. 2d 1037, 81 S. Ct. 1860 (1961). An approach for determining voluntariness which has been endorsed by the Seventh Circuit is to ask "whether the government has made it impossible for the defendant to make a rational choice as to whether to confess . . . ." United States v. Rutledge, 900 F.2d at 1129 (7th Cir. 1990). All of the defendants have also claimed that the government deceived them in the course of these interviews. A statement will not be suppressed on the basis of government deception unless the evidence demonstrates that the government affirmatively misled the defendant and that the misinformation furnished by the government was material to his decision to render a statement. United States v. Serlin, 707 F.2d 953, 956 (7th Cir. 1983).

 One case which is particularly relevant to all of the motions to suppress in this case is Hocking, 860 F.2d at 769. Hocking was visited at his home at 5:30 p.m. one evening by two FBI agents. Id. at 770. He invited the agents into his home after they knocked on his door, identified themselves, and told him that they wanted to ask him some questions relating to an ongoing criminal investigation. Id. After asking Hocking's wife to leave the room, and without advising him of his Miranda rights, the agents began questioning Hocking. Id.

 Hocking was a financial analyst with the Illinois Department of Transportation ("IDOT"), and his job involved assessing the financial strength and work capabilities of contractors bidding on IDOT road construction contracts. Id. The agents began Hocking's interview by asking him to explain his job, and then confronted him with allegations that he had accepted money from contractors in exchange for granting them favorable treatment in the evaluation process. Id. Hocking denied having accepted any money, but the agents told him that they had tapes of conversations between him and contractors concerning payoffs. Id. The agents also told Hocking that he faced criminal charges, that he could be imprisoned, and that some of his assets could be forfeited. Id. They also encouraged him to tell the truth. Id.

 Hocking continued to deny any wrongdoing for a time, but finally signed a statement in which he admitted to accepting $ 1000 from a contractor in exchange for favorable treatment. Id. at 771. The Seventh Circuit considered several factors in determining that Hocking was not in custody -- the fact that he gave the agents permission to enter his home, his voluntary submission to questioning, the polite tone of the interview, and the fact that he never asked the agents to leave his home. Id. at 773. The court also found that Hocking's statement was voluntary, and that his will was not overborne by the government agents, id. at 775, after considering the "totality of the circumstances" surrounding his interrogation. Id. at 774-75. The court noted that Hocking was a mature adult, that the tone of the conversation was polite, and that he never asked the agents to leave his home. Id. The fact that the agents informed Hocking that he faced prosecution and possible imprisonment and forfeiture did not render his statement involuntary. Id.

 Dempsey argues that the statements he made to the government on January 17, 1989 were involuntary because they were made only as a result of the government's threatening him and exerting psychological pressure on him by, among other things, telling him that it was in his best interests to cooperate. We find that Dempsey's statements were voluntary and should not be suppressed. The circumstances surrounding Dempsey's statements are very similar to those in Hocking. As in that case, the tone of the conversation between Dempsey and the agents was polite, and he never asked the agents to leave his home or refused to speak with them.

 The only real distinctions between this case and Hocking are that in this case Dempsey was visited by an Assistant United States Attorney as well as FBI agents, and that the visit here came later in the evening. The additional presence of an Assistant U.S. Attorney did not render the interview significantly more coercive, even when combined with the fact that it occurred at 10:45 p.m. The lateness of the hour might tend to suggest that the government intended to, and did, surprise Dempsey. At the hearing, Dempsey sought to establish that the type of interview conducted at his home was known to the government agents as a "heart attack" interview. The government, however, denies the existence of such a term, and we find that whether this term was used is immaterial; the questions are whether Dempsey was surprised by the interview and whether his surprise had an effect on the voluntariness of his statement. The evidence suggests that Dempsey was not entirely surprised to see the government agents. During the interview he told them that he had known that Ostrom was an FBI agent since November of the previous year. The court is convinced that, while Dempsey may not have been expecting the government that night, he was not entirely taken by surprise by their visit. His surprise at the mere timing of the government's appearance could not have rendered his statement involuntary, when one considers the fact that Dempsey was a sophisticated adult.

 The "totality of the circumstances" surrounding Dempsey's statements establish that they were made voluntarily. While the government certainly wanted him to cooperate, the agents did not need to press him very hard before he made a statement. The government did tell him of the charges he was facing, including possible RICO violations, but the agents did not talk about specific penalties such as imprisonment or forfeiture. Cf. Hocking, 860 F.2d at 770. The government also did not advise Dempsey not to get an attorney. He was not told of any specific benefits he would receive as a result of his cooperation. Finally, there was no evidence of government deception in this case. While Dempsey makes much of the government's listing of the charges against him, there was absolutely no evidence that the listed charges were inaccurate, or that the government lied about anything during the ...


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