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United States v. Rosenchein

United States District Court, D. New Mexico

February 21, 2019



         This matter is before the Court on Defendant Rosenschein's Motion to Suppress Statements [Doc. 61], to which the Government filed a response [Doc. 81] and Defendant filed a reply [Doc. 85]. At issue is whether the FBI violated Rosenschein's constitutional rights during his interrogation.

         On November 28, 2018, the Court held an evidentiary hearing on the motion, at which Defendant Guy Rosenschein (hereafter, “Rosenschein”) was present. Although the Government offered its recording of the interrogation into evidence, the parties disagree about what was said at certain points during the conversation. As a result, after the November 28 hearing the parties requested the opportunity to confer and present the Court with a stipulated transcript. The Court granted the request, and they filed their partially stipulated transcript on December 6, 2018 [Doc. 117]. In that document, the parties noted where they continue to disagree about what Rosenschein said. After considering the briefs, the evidence presented by the parties, and the relevant legal precedents, the Court concludes that the Government did not honor Rosenschein's unambiguous invocation of his right to counsel, and therefore the motion should be granted.


         On a motion to suppress a defendant's statement allegedly obtained in violation of defendant's Miranda rights, the Government bears the burden of proving by preponderance of evidence that the defendant's rights were not violated. See United States v. Gell-Iren, 146 F.3d 827, 830 (10th Cir. 1998). For example, “[w]henever the State bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver only by a preponderance of the evidence.” Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

         FACTS [1]

         For the limited purpose of ruling on the motion to suppress, the Court finds the facts as follows.

         On November 8, 2016, law enforcement officers executed a state court search warrant for Rosenschein's home. He was arrested and taken to the police station by a Bernalillo County detective. There, an FBI agent interviewed Rosenschein and gathered information about his background. Rosenschein, a pediatric urologist who is originally from France but has lived and practiced medicine in the United States for decades, did not appear to have any problem understanding the agent, though he did speak English with an accent. After the interview, Rosenschein was informed of his Miranda rights and he agreed to participate in a polygraph examination administered by the agent. After the polygraph, Rosenschein participated in a two and a half hour interview with the agent, which was videotaped. This interview is the subject of Rosenschein's motion to suppress.[2]

         The agent began the interview by telling Rosenschein that after reviewing the results of the polygraph, he had no doubt that Rosenschein had sexually touched a minor. Rosenschein was noncommittal, and the agent told him that he must decide what “path” he wanted to walk because “[i]t makes a difference for you. It makes a difference for what happens to you.” After telling Rosenschein that he knows Rosenschein has achieved his professional goals by making some “hard choices, ” the agent said, “Today is the most difficult choice you will ever have to make.” Then the agent told Rosenschein that he was the “last person in a long line of people who is going to talk to you and offer you an opportunity to be truthful but also get some help. I suspect that you are somebody who battles with urges and battles with things that give you pleasure but that you don't feel good about.” After mentioning “programs” and “counseling, ” The agent told Rosenschein that “if you're honest about those things, it makes a difference. It makes a difference in the consequences you'll face. It makes a difference in the programs that are available to you. It makes a difference in your everyday personal life because you will feel better about it . . .” Then Rosenschein asked, “Where do we go from here?”, and the agent told him that he should start by telling the truth “because those things make a difference for you.” Then Rosenschein said, “Maybe, maybe I should get a lawyer.”[3]

         The agent immediately told Rosenschein that he could not go any further now that Rosenschein had made that statement, to which Rosenschein replied, “I don't say I, I don't want to talk. I didn't say that.” The agent said that he had to be very careful at this point and added, “What I need to know is whether or not you wanna talk to me now or whether or not you wanna stop talking and get a lawyer. Because understand, if you wanna stop talking and get a lawyer, you won't see me again. Okay?” Rosenschein then asked the agent what he wanted him to do, and the agent said that he wanted Rosenschein to make up his mind. The agent then stated that he could not answer Rosenschein's question, but he could offer Rosenschein “help”: “I can offer you an opportunity to bear [sic] your soul and get things off your chest, but I can't do that if you wanna get an attorney. You have to make up your mind.”

         Rosenschein then asked what help the agent was offering, to which the agent replied, “cathartic help.” When Rosenschein did not understand the word “cathartic, ” the agent explained that being truthful will help Rosenschein “from an emotional standpoint.” The agent then continued, “if you're truthful with me and you describe to me the circumstances under which those things happened, that makes a difference. It makes a difference in what the consequences are for you, in what charges you'll face. It makes a difference in how people will view you.” The agent said that defendants who do not show cooperation and remorse “get put in a different box” when charges are filed and when consequences are discussed. The agent then suggested that if Rosenschein revealed the problems he was struggling with, the agent could get Rosenschein help with “programs.” After acknowledging that this would not make Rosenschein's problems go away, the agent told Rosenschein, “I legitimately and sincerely think that talking to me will make a difference for you, but you have to make up your own mind. I can't give you any legal advice.” The agent then told Rosenschein that he did not believe that Rosenschein was “one of those people” who does not want help, but rather someone who had made mistakes but wants to do the right thing. “I wanna help you, but it means that you gotta talk to me. And it means you have to make your mind up about what you want.... What I need to know is do you want to get an attorney, or do you wanna talk to me?”

         At this juncture Rosenschein asked for five minutes alone, and the agent agreed. The agent left the room and a few moments later, Rosenschein stood up from his chair and put on his jacket. At this point, the agent returned and Rosenschein said, “I think I will take an attorney. It doesn't really matter. My life is over so when it is over it is over.” The agent stated that he did not understand what Rosenschein said, and again Rosenschein announced (this time more audibly), “I will take a lawyer.” The agent asked, “You want an attorney?” Rosenschein responded, “Yes. It's over anyway. Whatever. Even if I win, it's over. It doesn't mean I will not do something else.”

         The agent pressed on, telling Rosenschein that he could not talk to him anymore, to which Rosenschein responded, “Well, I didn't say I don't want to talk to you. I didn't say I want to remain silent. I just said I will take a lawyer.” The agent did not end the conversation, but instead told Rosenschein, “Well, the-the point is is that at this point, given that you want an attorney, I have to stop talking to you. So, um-” Rosenschein responded to that with the statement, “I need some advice, and I need some legal advice.”

         At this point the agent said, “Well, let me tell you what's gonna happen from here forward.” When Rosenschein agreed, the agent explained, “what will happen is you're gonna go to jail today, ” and stated that Rosenschein probably would be in state custody initially, but that Rosenschein's case was “likely going to be picked up federally” due to Rosenschein's alleged travel with a minor. At this point, Rosenschein started to object, saying that “this kid has nothing to do-” but was cut off by the agent, who stated that he was not asking Rosenschein questions. The agent continued, telling Rosenschein that it was likely going to be a federal prosecution and there would likely be other charges. Then Rosenschein queried, “What is the penalty?” and asked the agent what would happen if he continued to talk to the agent. The agent responded that first they have to make sure that Rosenschein really wanted to talk to him because Rosenschein had stated that he wanted an attorney, but that the difference would be that Rosenschein got to tell his side of the story up front, and that it would make a difference not only in how Rosenschein would be “perceived in the legal system, ” but also “in the consequences and the charges that are brought against you.” But then the agent quickly noted that he was not asking a question and did not want a response from Rosenschein but was merely trying to answer his question. Rosenschein said that he understood. Then the agent told Rosenschein, “If you decide not to talk to me and you still want an attorney today, chances are you're not gonna get to tell your side of the story to anybody in law enforcement going forward. Maybe you will, maybe you won't. But chances are probably not.” At this point, Rosenschein informed the agent, “I'll talk to you. And I know what I'm doing.”

         The agent said that he needed to consult with other people to make sure that he “says the right words” to continue the interrogation, because “this is an unusual circumstance… I don't usually have people say, ‘I want an attorney,' and then say, ‘I don't want an attorney.'” There was a discussion off the record. When the agent returned to the conversation, Rosenschein said, “I will talk to you, but I will still take an attorney later on.” Again, the agent responded that they needed to be careful and make sure that ...

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