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United States v. Annoreno

October 28, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
BRIAN A. ANNORENO, DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

The matter here is whether all of Brian Annoreno's statements to law enforcement officers are admissible. On January 8, 2006, agents, with appropriate warrants, searched his residence and arrested him for child pornography offenses. He came into custody at 3:40 in the afternoon, was transported to the Bartlett, Illinois Police Department where he was given Miranda warnings and, shortly before 4:00 p.m., signed a Miranda waiver form. He answered questions while interviewed by two officers - one from the Illinois Attorney General's Office and another from Immigration and Customs Enforcement ("ICE"), a unit within Homeland Security.

He received another set of warnings around 9:00 p.m. from the same two officers at the outset of a videotaped interview. At 9:55 a third set of warnings was given by two Bartlett officers at the beginning of a separate videotaped interview.

He was, I find, fully cooperative with the investigation and knew and understood his rights. This is plainly clear from his attitude during questioning, from the short written statement he gave, and from the dynamics of the investigation. It is apparent that the law enforcement officers, investigating a particularly aggravated case of child exploitation, did not think of Annoreno as a primary ringleader of a group of offenders. Having observed Annoreno in court and seen and heard the evidence at the hearing, it would be hard to conclude he had the skills or presence to serve as a kingpin of anything. I find it also true that his interviewers did not believe that incriminating admissions were crucial to proving the charges in light of the evidence they had found. They were interested in finding the others associated with this criminal enterprise (and their child victims), and Annoreno, whose own sense of guilt and shame was palpable at the hearing, wanted to help them. His entire course of conduct evinced this attitude. Within three or four hours of his arrest, he signed a waiver (without time limits) of his McNabb-Mallory rights embodied in Federal Rule of Criminal Procedure 5. The waiver form stated that he "knowingly and intelligently" waived his rights to appear without unnecessary delay before a judge "for the purpose of assisting Special Agents of the United States Customs Service." Within five hours of arrest he signed a consent to search his online accounts. About nine hours after his arrest he began writing a handwritten statement and shortly thereafter signed another consent form with respect to additional online accounts. It was then about midnight, and he was transported to the ICE office after a stop for food. He was put into a cell at 3:15 in the morning of January 9.

The officers used information obtained from Annoreno to get a warrant to search the residence of another person and seize that person's computer.

In the late afternoon of that day, ICE agents went to Annoreno's cell and showed him a digital image from the other person's computer. Annoreno identified the very young child in the image and the camera used to make the image and then stated that he had sent that image. He signed the copy of the image. Around midnight, he called his mother and spoke to her. He spent the night in the cell.

In the late afternoon of January 10, two ICE agents interviewed Annoreno about his knowledge of a particular chat room and its participants. He also signed another waiver of this right to appear; this one limited to 72 hours. Annoreno again spoke to his mother.

He made his initial appearance on January 13.

The admissibility of all of his statements is challenged, but I find that he was competent to waive his Miranda rights on January 8, and that he did so voluntarily and intelligently on multiple occasions. He never asked for counsel. He did ask to speak to his mother, but the law does not require that interrogation cease when an arrestee like Annoreno asks to speak to a relative or friend. See Fare v. Michael C., 442 U.S. 707, 724 (1979) (statements not suppressed where police denied suspect's request to speak with his probation officer) and State v. Jones, 566 N.W.2d 317, 324 (Minn. 1997) ("a juvenile's request to speak with a parent does not automatically invoke either the right to an attorney or the right to remain silent"). A denial of the right could be relevant to the issue of voluntariness. See Haynes v. Washington, 373 U.S. 503 (1963). But in this case, the agents did not deny him this right. They told him he could call his mother later, but he never renewed his request. Given the evidence I heard, there is no basis to conclude that his statements were involuntary for this or any other reason. He did, after all, speak to his mother on January 9, and still cooperated in interviews on the next day. From Annoreno's own account of his conversations with his mother, he had no intention of telling her the truth about his circumstances. I fully understand why he would be reluctant to tell what he had apparently done with her grandchild. He told her instead that he was helping the police.

I also find that all of his interviews with the police were fully voluntary. He wanted to tell them what he knew, and he was telling his mother the truth when he said he was helping the police.

No matter how voluntary the later statements (January 9 and 10) may be, they cannot be admitted if his rights under Miranda or McNabb-Mallory were violated.

Rights under Miranda

There were no rewarnings here, and the cases have held that rewarning is not necessary in all situations. See Wyrick v. Fields, 459 U.S. 42 (1982); United States v. Banner, 356 F.3d 478, 480 (2d Cir. 2004), vacated on other grounds, 543 U.S. 1100 (2005); United States ex rel. Henne v. Fike, 563 F.2d 809, 814 (7th Cir. 1977). The reported decisions analyze the need for rewarning on a case-by-case basis. The principal factor considered is the passage of time, but there is no accepted per se rule about how long is too long.*fn1 United States v. Pruden, 398 F.3d 241, 246-47 (3d Cir. 2005) identified the question as one of whether the original warnings had grown "stale." It is a good way to think about the issue.

When a series of interviews addresses the same basic facts in the same way for the same purpose, initial warnings may suffice for quite a long period of time. Another way to put it is to ask if the ambience of the interviews changed. Were the working relationships between the agents and the arrestee consistent over time; did simple inquiry turn into harsh accusation; were new subjects brought up suddenly and new ...


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