that he did not believe he was telling the truth. In response, Vasiliavitchious stated "Your tape shows me loaning money to a friend. You've got nothing." On August 4, 1995, while in transit to the MCC Vasiliavitchious and the arresting officer discussed Vasiliavitchious' car that was seized, the possibility of the police listening to his phone calls and the subject of boxing. These statements are strong evidence of Vasiliavitchious' ability to understand and speak English and to cope with police questioning.
Considering the fact that the Miranda warnings are not complex or difficult to understand and given Vasiliavitchious' proficiency with the English language, this Court is confident that Vasiliavitchious understood his rights when read to him and that he could accurately communicate his thoughts in English. As such, I find Vasiliavitchious intelligently and knowingly waived his Miranda rights when he acknowledged that he understood his rights when read to him and chose to respond to police questioning.
There is no Fifth Amendment violation.
The defendant also claims that he was denied his Sixth Amendment right to counsel when he was interrogated on August 4, 1995 after formal charges had been filed and an attorney had appeared in court on his behalf. Vasiliavitchious was represented by counsel when he was first charged in 1994, but that charge was later dropped. We do not reach the issue of whether a defendant's invocation of his right to an attorney on a charge that has been dropped carries over when he is reindicted, but assume for purposes of the motion to suppress that Vasiliavitchious did invoke his Sixth Amendment right to an attorney.
When a defendant indicates that he wants the assistance of counsel, the authorities must cease their interview and further questioning is forbidden. Michigan v. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986). See also Patterson v. Illinois, 487 U.S. 285, 291, 101 L. Ed. 2d 261, 108 S. Ct. 2389 (1988). However, the Sixth Amendment is not violated whenever the State obtains incriminating statements from the accused after the right to counsel has attached. Maine v. Moulton, 474 U.S. 159, 176, 88 L. Ed. 2d 481, 106 S. Ct. 477 (1985). Once the Sixth Amendment has attached and a defendant has expressed a desire to deal with the police only through counsel, the authorities may not interrogate him without counsel present unless the defendant himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). The issue here is whether Vasiliavitchious was interrogated or whether he initiated communication with the police.
The government asserts that Vasiliavitchious was not interrogated by the police, but rather claims that Vasiliavitchious initiated the conversation with Agent Davies. Vasiliavitchious was taken to the Des Plaines Police Department after his arrest. During this drive the officer initiated a conversation with Vasiliavitchious. However, no incriminating statements were elicited. Vasiliavitchious remained at the police station approximately fifteen minutes before being transported to the U.S. Marshals Service. During this forty-five minute drive, Vasiliavitchious initiated conversations with Agent Davies about his car, the police's ability to listen to his phone calls and about his boxing career.
Vasiliavitchious was then turned over to the U.S. Marshals Service for processing prior to his arraignment. Seven hours later, after his arraignment hearing he was transported to the MCC. It is during this transport to the MCC that Vasiliavitchious made statements to Agent Davies that he now seeks to suppress. There is no doubt from the record of the conversation that Vasiliavitchious initiated the communication. The investigation report documented the conversation as follows:
Subject: I know that you need to get handwriting from my wife, you are only doing your job.