The opinion of the court was delivered by: Judge Solomon Oliver, Jr.
Pending before the court is Defendant Terence Sasaki's ("Sasaki") Motion to Suppress statements obtained in violation of his Fifth Amendment rights. (ECF No. 349.) The court held an evidentiary hearing regarding Sasaki's Motion on October 4, 2011. For the reasons set forth below, Sasaki's Motion to Suppress is denied.
Rick Springer ("Springer"), a Diversion Investigator and Group Supervisor in the New York Drug Enforcement Administration ("DEA") office, testified that Sasaki, a doctor, contacted a Florida office of the DEA to discuss his involvement with Internet pharmacies. (Tr. at 6-7, 12-14, 61, ECF No. 429.) Sasaki lived in New York and expressed an interest in meeting with the DEA there. (Id. at 12.) He was given the contact information for Springer and called him to set up a meeting. (Id. at 6-7, 12-14, 61.)
Sasaki's meeting with the DEA took place in its New York office on June 27, 2007. (Id. at 12, 16.) He arrived at the DEA's offices on his own. (Id. at 17.) He met with two Diversion Investigators and two Special Agents. (Id. at 19.) Interviews are typically conducted with two Diversion Investigators, but Sasaki's interview also included two Special Agents who were in training at the time. (Id. at 20.) Springer did not participate in the interview. (Id. at 21.) The interview was conducted in interview rooms located in the lobby. (Id.)
Springer was one of two witnesses who testified for the Government at the suppression hearing. He was told by the Group Supervisor of the Florida DEA office, Tom Flannery ("Flannery"), that there was a doctor involved in an Internet scheme that wanted to come in and speak to the DEA about it. (Id. at 12.) Flannery told Springer that he was aware of a case that the DEA Cleveland office had "which had involved the websites and the whole organization that this doctor was involved with." (Id. at 12.) Based on what Flannery related to him, Springer thought Sasaki was someone "who had crossed over the line and was involved in something which he felt was probably not legal, and that he wanted to come in and in our terms he wanted to clean himself up a little and tell us what he knew." (Id. at 14.) Springer testified that it was not unusual for doctors to come into DEA to speak to investigators. (Id. at 18.)
Springer cannot recall whether Sasaki specifically asked him questions about an attorney, but his standard answer when asked by targets of investigations or witnesses is that if the person feels that he needs a lawyer, he should get one, but he cannot tell him whether an attorney is needed. (Id. at 14-15.) Springer does not recall Sasaki raising any issues regarding the recording his conversations with the DEA, but testified that the policy of the DEA in the New York office is not to record interviews and not to allow interviewees to record the interviews. (Id. at 16.) Springer also testified that he would not have told Sasaki that any statements he made would be "off the record" since "you can't talk to the police off the record." (Id. at 15.)
Springer maintains that he did not make any promises to Sasaki that his statements would not be used by law enforcement or not be used against him. Springer stated that his standard response when asked by defendants or targets about the issue of immunity is to tell them that the DEA cannot promise them anything regarding immunity because they are not authorized to provide immunity and would have to run it by the U.S. Attorney's Office first. (Id. at 11.) Springer testified that in order for a person to be considered as a potential informant, he/she must first "come forward and be truthful and tell everything that he or she knows about a particular criminal investigation." (Id. at 9.)
Special Agent Tyler Parkison ("S.A. Parkison"), of the Detroit office of the DEA, also testified at the suppression hearing and participated in Sasaki's interview. (Id. at 52, 63-64.) S.A. Parkison was a Diversion Investigator in the Cleveland office of the DEA at the time of Sasaki's interview. (Id. at 53, 60.) S.A. Parkison stated that it was not unusual for people to come in and give voluntary interviews, and that he has conducted such interviews in the past. (Id. at 75.) S.A. Parkison testified that there were no promises made to Sasaki to get him to participate in the interview. (Id.)
S.A. Parkison maintains that neither he nor the other Diversion Investigator had a firearm that day, and he did not observe the Special Agents with firearms either. (Id. at 72.) No firearms were brandished at any time during the interview. (Id.)
S.A. Parkison stated that he did not recall any discussion during the meeting regarding Sasaki having a lawyer present for the meeting. (Id. at 93.) S.A. Parkison testified that there was no time that he or anyone else in the room during the interview told Sasaki that his conversations would be off the record. (Id. at 69.) Further, S.A. Parkison stated that the DEA does not get involved in conversations with people that are off the record. (Id.)
S.A. Parkison testified that Sasaki controlled the interview because he was providing the information. (Id. at 71.) Only a few questions were asked of Sasaki, mostly just to clarify the information he provided. (Id. at 65.) However, Sasaki did not answer all the questions that were asked of him. (Id. at 65-66.) He refused to tell them the name of his business or provide them additional details on certain topics. (Id.)
During the interview, Sasaki indicated that he was interested in becoming a confidential source. (Id. at 67.) S.A. Parkison told Sasaki that after he provided information to them, the agents interviewing him would decide whether the DEA would be interested in using him as a confidential source. (Id. at 68.) However, S.A. Parkison did not make any promises during the meeting that Sasaki would become a confidential source. (Id.) S.A. Parkison testified that he was incapable of making any promises that Sasaki would become a confidential source because he is "not the governing individual who determines if somebody can become a confidential source." (Id.) S.A. Parkison stated that he needed consent from a Group Supervisor, Assistant Special Agent in Charge, and a field agent. (Id. at 57.) S.A. Parkison testified that in order to become a confidential informant there would first be a fairly in-depth interview to determine what criminal activities he/she is aware of. (Id.) Then, if the relevant DEA official determined, based on the information received, that the person under consideration would be chosen as an informant, a confidential source agreement would be signed which explains what the person could and could not do. (Id.) There would also be a background check, and photos and fingerprints would be taken. (Id.) If an individual was granted informant status, he would not be given immunity from prosecution for criminal conduct. (Id. at 58.) Typically, informants are charged with crimes they previously committed. (Id. at 60.)
S.A. Parkison testified that he did not recall Sasaki bringing up the word "immunity" at all during the meeting. (Id. at 68.) However, if Sasaki had requested immunity, S.A. Parkison testified that he would have told him that he cannot grant him immunity. (Id. at 68-69.) All he could do was take the information ...