United States v. Rosenschein

369 F. Supp. 3d 1147
District Court, D. New Mexico·Decided February 21, 2019·No. CR. No. 16-4571 JCH·Published·Cited by 1 cases

Opinion

JUDITH C. HERRERA, UNITED STATES DISTRICT JUDGE

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.

*1150The 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.

LEGAL STANDARD

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 *1151you'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."

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United States v. Rosenschein, 369 F. Supp. 3d 1147 (D.N.M. 2019).

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