United States v. James (415 F. Supp. 2d 132, 2006)

MEMORANDUM & ORDER

JOHNSON, Senior District Judge.

Defendants Richard James (“James”) and Ronald Mallay (“Mallay”) are each charged in a nineteen-count indictment with various counts of racketeering, murder, attempted murder, mail fraud, and money laundering, relating to an allegedly fraudulent scheme to obtain life insurance policies for people of Guyanese ancestry. Presently before the Court are motions by James and Mallay to suppress certain statements and documentary evidence seized by the government.

In his suppression motion, Mallay seeks to preclude introduction at trial of insurance policies and other documents seized by law enforcement officials from his apartment on the date of his arrest. Mallay contends that the documents at issue were not within the investigating officers’ plain view and thus were impermissibly seized during a warrantless search. Mallay also seeks to suppress certain post-arrest statements made to arresting officers on the ground that he was subjected to custodial interrogation without the benefit of Miranda warnings, in violation of his Fifth Amendment rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendant James seeks to suppress certain post-arrest statements made to arresting officers, on the ground that he had the right under the Fifth and Sixth Amendments to be represented by counsel during his custodial interrogation because an indictment was pending against him. James also moves for suppression of prearrest, recorded statements made to a cooperating individual, on the ground that his Sixth Amendment right to counsel was violated when federal law enforcement officials authorized the cooperator to question James in the absence of counsel after an indictment was pending against him.

Both James and Mallay also seek to suppress out-of-court identifications made by a government witness on the ground that the identification procedures used by the federal agents were unduly suggestive.

The Court referred Defendants’ motions to Magistrate Judge Cheryl Poliak for a report and recommendation. Accordingly, Magistrate Judge Poliak conducted a suppression hearing on July 21, 2005, as well as a Wade hearing on September 22, 2005 on the issue of the identification procedures used by the investigating agents. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). On the basis of the hearings and related pleadings, Magistrate Judge Poliak issued a Eeport and Eecommendation (the “Eeport”) on November 10, 2005. The Eeport recommended that (1) Mallay’s motion to suppress the evidence seized from his residence be denied; (2) Mallay’s motion to suppress his post-arrest statements be denied; (3) James’ motion to suppress his post-arrest statements be denied; (4) James’ motion to suppress the recorded conversations to the cooperating individual be denied; and (5) James’ and Mallay’s motions to suppress the photograph identification be denied.

A district court judge may designate a magistrate to hear and determine certain motions pending before the Court and to submit to the Court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten days of service of the recommendation, any party may file written objections to the magistrate’s report. See id. Upon de novo review of those portions of the record to which objections were made, the district court judge may affirm or reject the recommendations. See id.

The Court is not required to review the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In addition, failure to file timely objections may waive the right to appeal this Court’s Order. See 28 U.S.C. § 636(b)(1): Small v. See’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989).

In this case, objections to Magistrate Judge Poliak’s Eeport were due within ten days of receipt of the November 10, 2005 Eeport. No objections were filed with this Court. Upon review of the Eeport, this Court therefore adopts and affirms the Eeport of Magistrate Judge Poliak in its entirety.

SO OEDEEED.

REPORT AND RECOMMENDATION

THE MOTIONS TO SUPPRESS

POLLAK, United States Magistrate Judge.

Defendants Eichard James and Eonald Mallay face various counts, including EICO charges, and charges of murder and attempted murder, relating to a fraudulent scheme to obtain life insurance policies on people of Guyanese ancestry. Currently pending before this Court are motions by defendants James and Mallay to suppress certain statements and documentary evidence seized by the government.

Specifically, defendant Mallay seeks to preclude introduction at trial of the insurance policies and other documents seized from his apartment on the date of arrest. He contends .that during the course of a warrantless search conducted at the time of his arrest, the investigating officers seized papers from inside a plastic file box. Mallay also seeks to suppress certain post-arrest statements made to the arresting officers. In his affidavit, Mr. Mallay claims that only after he had been forcibly taken to the precinct and questioned was he advised of his Miranda rights. (Mallay Mem. at 14; Mallay Aff. ¶¶9, 11-12). Since the questioning was not voluntary and he did not receive Miranda warnings prior to questioning, Mallay contends that the statements should be suppressed. (Id.) He also claims that he was detained for a “couple of hours,” “his native language is not English,” and that once advised of his Miranda rights, he declined to speak to the officers, which he argues demonstrates that he would not have spoken to them earlier if given the warnings before questioning. (Id. at 15-16).

Defendant James also seeks to suppress certain post-arrest statements as well as recorded statements he made to a cooperating individual after an indictment was filed and his right to counsel had attached. (See James Mem. at 29-32; James Supp. Mem. at 13-14).

PROCEDURAL AND FACTUAL BACKGROUND

A. Affidavit Requirement

As an initial matter, some courts have held that in the absence of a sworn affidavit attesting to the facts, the defendant is not entitled to a hearing on the issue of voluntariness. United States v. Pena, 961 F.2d 333, 339 (2d Cir.1992). Indeed, the Second Circuit has made it clear that the court has the discretion to deny an evidentiary hearing where the defendant has failed to submit papers that raise a dispute over a material issue of fact, see United States v. Caming, 968 F.2d 232, 236 (2d Cir.), cert. denied, 506 U.S. 956, 113 S.Ct. 416, 121 L.Ed.2d 339 (1992), or where the defendant has failed to support his factual allegations with a sworn affidavit from a witness with personal knowledge. See, e.g., United States v. Gillette, 383 F.2d 843, 848 (2d Cir.1967).

At the same time, however, the Second Circuit has held that a defendant’s mere allegation that the agents did not administer Miranda warnings, despite the government’s claim to the contrary, is sufficient to require a hearing. See United States v. Mathurin, 148 F.3d 68, 69-70 (2d Cir.1998). Here, defendant Mallay has submitted an affidavit claiming that he was not advised of his rights and defendant James’ counsel affirm the description of the circumstances of James’ arrest. In this Court’s view, these are sufficient to raise the issue of voluntariness and warrant a hearing.

Accordingly, in an exercise of discretion, this Court ordered a hearing in this matter to determine the propriety of the seizure of papers from Mallay’s home, and the voluntariness of the statements made by James and Mallay.

B. The Hearing

During the suppression hearing held on July 21, 2005, the government presented the testimony of Eugene Kizenko, a Special Agent with the Bureau of Immigration and Customs Enforcement (“BICE”). (Tr. II at 4). The defense called William Oldham, formerly a detective with the New York City Police Department (“NYPD”) and an investigator for the United States Attorney’s Office in the Eastern District of New York (“USAO”). (Tr. II at 83, 96).

Agent Kizenko testified that in January 2001, he became involved in an investigation of James and Mallay in connection with a scheme in which James, an insurance broker, allegedly wrote life insurance policies on certain individuals, and Mallay conspired with others to have the insureds murdered in order to obtain the proceeds of these policies. (Id. at 5-6).

1) The Arrest of Mallay and the Search

In late August of 2002, a warrant for Mallay’s arrest was issued based upon a complaint, charging him with conspiracy to commit interstate or foreign murder-for-hire, identifying two alleged victims, Mr. Somaipersaud and Mr. Sewnanan. (See Tr. II at 8-9). At a little after 7:00 a.m., on September 3, 2002, Agent Kizenko, two INS agents, and officers from the Major Case Squad of the NYPD arrived at Mallay’s home, located at 50-10 Broadway, Woodside, Queens to effect his arrest. (Id. at 9).

Using a ruse to obtain entry, the officers asked Mallay’s wife, Lazina Mallay, if they could use the phone. (Id. at 10). She opened the door and let the officers enter the apartment. (Id.) The officers then dispersed throughout the apartment, conducting a protective security sweep to see who was in the house. (Id. at ll). Agent Kizenko went into the kitchen with Ms. Mallay (id. at 10); other agents found Mr. Mallay seated, possibly asleep, on the couch in the living room where he was placed under arrest and handcuffed. (Id. at 10, 99). The Mallays’ son, Donald Mallay, was found sleeping in the second bedroom. (Id. at 19, 81,121).

Detective Oldham proceeded to the master bedroom where he found a stack of eight to ten insurance policies on the dresser. (Id. at 11-13, 100, 103). He recognized the documents because they had laminated covers, frequently with a blue rear backing, which he knew were often used to bind insurance policies. (Id. at 100-01). He called out to Agent Kizenko “a minute or so” later, stating that he had found something. (Id. at 11). Agent Kizenko went into the bedroom where he observed a “stack” of what appeared to be insurance policies on the top of the dresser. (Id. at 12). Although he described them as not perfectly stacked in a neat pile, Agent Kizenko testified that he could see the writing on some of the policies. (Id. at 14, 35-36). He testified that some of them said “insurance policy” on the front and he could see the dark cover of one (id. at 12), which appeared to be similar to the Met Life policies he had seen earlier during the course of the investigation. (Id. at 6-7, 78).

He and Detective Oldham took the stack of policies into the kitchen where they reviewed them with Ms. Mallay. (Id. at 15-16). According to Agent Kizenko, some of the policies were in the name “Mallay,” which Ms. Mallay explained were policies belonging to certain relatives. (Id. at 16-18). Other policies were in different names and the agents suspected that these policies were possibly part of the fraudulent scheme. (Id. at 16-17). After reviewing the policies with Ms. Mallay, the officers told her that they were taking the policies but would return the ones that belonged to her within a short period of time. (Id. at 18). Indeed, several days later, the agents returned the majority of the policies to Ms. Mallay. (Id. at 17-18).

During the hearing, Agent Kizenko was questioned as to how he recognized the documents to be insurance policies. He explained that during the course of the investigation, he and his co-case agent Detective Oldham became familiar with the general appearance and format of the types of insurance policies at issue. (Id. at 6). The investigation appears to have been initiated after Met Life contacted the government. (Tr. I at 85). As part of the investigation, Agent Kizenko spoke to employees of the insurance company and obtained numerous policies from the company. (Tr. II at 6). Moreover, at the time of James’ arrest in June 2002, prior to the arrest of Mallay, the agents executed a search warrant of James’ office where numerous insurance policies were seized. (Id. at 19,119). Agent Kizenko and Detective Oldham reviewed these seized policies as well. (Id. at 19, 119, 120). Both officers testified that generally policies were bound together with a dark blue backing and a white or clear laminated top cover. (Id. at 6-7,100-01).

Detective Oldham, who was called as a defense witness, confirmed Agent Kizenko’s testimony about finding the insurance policies on the dresser in the bedroom (id. at 100), though Detective Oldham recalled the dresser being to the right of the door (id. at 103), not the left as Agent Kizenko testified. (Id. at 12). The detective testified that he too had seen “dozens” of insurance policies before, and that when he saw the documents on Mallay’s dresser, he recognized the laminated covers that are often used to bind insurance policies. (Id. at 100-01, 118). The detective confirmed that he and Agent Kizenko reviewed the policies with Ms. Mallay, and then subsequently returned the majority of the policies to her the next day. (Id. at 124).

On cross-examination, Agent Kizenko conceded that although he prepared a report of the interview of Mr. Mallay (id. at 54-56), he had not prepared a memorandum of his interview of Ms. Mallay. (Id. at 53). Nor had he prepared an inventory of either the policies taken from the Mallays’ apartment or the ones returned to Mallay’s wife (Id. at 39), although he testified that approximately seven were returned to Ms. Mallay. (Id. at 77). Agent Kizenko explained that if he had taken custody of the documents, he would have prepared an inventory, but since the USAO took the policies, he did not do so. (Id. at 33). Nor were there any transmittal documents prepared recording the transfer of the documents from the agent to the USAO. (Id.).

Following his arrest, Mr. Mallay was transported to the office of the Major Case Squad. (Id. at 19). Agent Kizenko could not, however, recall if he was in the car when Mallay was transported to the Major Case Squad from the apartment (id. at 62), but he clearly testified that Mr. Mallay was not questioned in the apartment before he was taken to the precinct and advised of his rights. (Id. at 76).

Once in the squad, pedigree information was taken and Mallay was given his Miranda warnings. (Id. at 20). Present in the room at the time the warnings were given were Agent Kizenko, Detective Old-ham and Mr. Mallay, who was handcuffed. (Id. at 21). According to Agent Kizenko, Detective Oldham advised Mallay of his rights using a card from which the detective read each of the warnings. (Id. at 22, 23). Mallay was then asked if he understood the warnings. (Id. at 24). According to the agent, Mallay understood and spoke English, said he had no problem understanding the warnings and agreed to speak to the officers. (Id.) There were no threats made and no weapons drawn. (Id. at 23, 26). Mallay did not indicate that he had any medical problems or complaints, although the agent may have given him a glass of water. (Id. at 20, 26).

Mallay agreed to speak to the officers. (Id. at 24). Detective Oldham conducted the questioning while Agent Kizenko took notes and ultimately prepared a report. (Id. at 54-56, 175, 178). The officers spoke to Mallay for approximately one hour during which he admitted knowing co-defendant James and having gone to Guyana with James. (Id. at 25). When asked if he knew Hardeo Sewnanan, he told the officers that Mr. Sewnanan had been poisoned in Guyana, and that Mr. Sewnanan was his nephew. (Id. at 25; see also id. at 21). He said that he had received $400,000 in insurance proceeds as a result of his nephew’s death. (Id. at 25). Mallay also stated that he knew another victim, Alfred Gobin, who was murdered in 1996. (Id. at 25). Mallay told the officers that one of his nephews was married to Gobin’s granddaughter and that Mallay received $60,000 in insurance proceeds from Gobin’s policy, which he gave to Gulobie Gobin. (Id.) He also indicated that he knew Devadas Harichand, who was his cousin and the common law husband of his sister. (Id.) According to Agent Kizenko, Mallay did not inculpate himself in any way during the interview. (Id. at 26).

The agent conceded that there was nothing in his report that reflected when or even if Miranda warnings were given. (Id. at 64-65). He conceded that Mallay was not given a form to execute, verifying that he had been given the proper warnings (id. at 63-64), but the agent testified clearly that the warnings were administered by Detective Oldham. (Id. at 22).

Detective Oldham also confirmed the agent’s testimony regarding the post-arrest interrogation, testifying that Mallay was not questioned in the apartment or in the ear. (Id. at 126). Although the detective was not certain, he believed that Mallay was given his Miranda rights either in the car or in the squad room, or both. (Id. at 107-108, 127). He testified that Mallay understood his rights and wished to speak to the officers. (Id. at 127-129).

2) The Arrest and Questioning of James

Agent Kizenko and Detective Oldham also testified about the investigation and arrest of James on June 30, 2002. (Tr. II at 18, 118, 147). On June 27, 2002, a warrant was issued for James’ arrest based on an indictment charging him with conspiracy to use interstate commerce facilities in the commission of murder-for-hire, in violation of 18 U.S.C. § 1958. (See generally id. at 142, 170, 174). Prior to the issuance of the warrant, the agents and NYPD officers had been investigating James in connection with the insurance fraud scheme. For two to three months prior to his arrest, James was communicating with a cooperating individual, Derrick Hassan. (Id. at 163-64). According to Detective Oldham, Derrick Hassan knew James and Mallay, had engaged in criminal activity with them before Hassan met Detective Oldham, and had provided the officers with information about them. (Id. at 193, 229). During the course of the investigation, a decision was made to have Mr. Hassan engage in recorded conversations with James. (Id. at 192-93).

Once the decision was made, Mr. Hassan was given instructions by the investigators and the Assistant United States Attorneys (“AUSAs”). (Id. at 196). He was given a recording device by the government (id. at 183), and instructed to use it to record conversations with James. (Id.) Generally, Hassan would tell the agents when a meeting was planned with James and then the device was given to him “every single time.” (Id. at 184-185). Agent Kizenko acknowledged, however, that Hassan may also have had his own recorder which he used for recording phone calls with James. (Id. at 184).

Agents and NYPD officers, including Detective Oldham, conducted surveillance of James and Hassan during this period prior to June 30, 2002 while Hassan was speaking with defendant James. (Id. at 229-32). Detective Oldham testified that while he did not have the ability to listen to the conversations between James and Hassan as they were occurring, he did review the conversations after the fact. (Id. at 197). The conversations were in English and began a few months before James’ arrest. (Id. at 198). During the course of these conversations, it was learned that James was involved in a plot to kill John Singh and the primary reason for Mr. Hassan to speak with James was to develop evidence of this plot. (Id. at 198-203). The officers were also investigating other possible murders that were connected to the scheme in which they believed James might be involved. (Id. at 230-32). One of the things James had told Hassan was that they should kill John Singh the same way James had killed Hardeo Sewnanan, with poison. (Id. at 230). The two also spoke on occasion about the insurance fraud scheme and James told Hassan about other insurance policies he had issued. (Id. at 231-32).

On the night of June 30, 2002, the officers were conducting surveillance at the home of James’ girlfriend, Malini Ramnarine. (Id. at 200-01). A warrant had been issued for James’ arrest based on an indictment that was filed on June 27, 2002, charging James with conspiracy to travel and to use the mail and facilities in interstate commerce in the commission of murder-for-hire. (Id. at 164-65). Agent Kizenko testified that he was aware that between the filing of the indictment on June 27, 2002 and the time of James’ arrest, James spoke twice to Hassan, once on the day of the arrest and once the day before, June 29, 2002. (Id. at 165).

According to Agent Kizenko, James was under surveillance so they would “know where he was.” (Id. at 171). The agent conceded that although the officers knew where James was prior to June 30, 2002, no efforts were made to arrest him until it was learned that he was traveling to the airport to leave the country. (Id. at 168-173). The officers knew that Hassan was going to pick James up to drive him to the airport, and they decided to wait to arrest James until after he had been picked up. (Id. at 172). The agent testified that it was his understanding that the officers had a certain period of time in which to arrest a person and that the timing was a matter in the officers’ discretion. (Id.) The officers knew they had to arrest James that evening because he “was fleeing the country” to Guyana. (Id. at 172-73). They wanted to arrest him before he got to the airport, and Agent Kizenko conceded that they knew it would be helpful if James had another conversation with Hassan while he was driving him to the airport. (Id. at 173-74).

Detective Oldham testified that he participated in the surveillance of Ms. Ramnarine’s home about a half hour before the arrest. (Id. at 201). Detective Oldham conceded that one of the reasons for the recorded conversation with Hassan was to obtain information about the John Singh plot, but the purpose was not limited to collecting information on just the murder of John Singh; “[tjhere were a number of murders.” (Id. at 202-03). The detective acknowledged that in prior conversations, James had discussed John Singh. (Id. at 204). However, the detective denied giving the informant specific instructions as to what to say that day, stating:

If Mr. Hassan hadn’t gathered at that point what we were interested in, a conspiracy involving the murder of John Singh, or any other murders, I don’t think there would be any point telling Mr. Hassan that. Mr. Hassan is .no dope.

(Id. at 205-206).

At approximately 9:00 p.m., the officers observed James getting into Hassan’s vehicle supposedly on their way to the airport. (Id. at 147-48). Officers from the NYPD, including Detective Oldham, pulled the car over and placed James in handcuffs. (Id. at 148, 208). Detective Oldham testified that he transported James to the Major Case Squad and that James was advised of .his rights in the squad room. (Id. at 213-14). He was not advised of his rights at the scene because the officers wanted to get James out of the area and away from other people who might recognize him. (Id. at 215). The plan was to arrest James quickly and get him out of the area before the community could find out about the arrest. (Id. at 208). Detective Oldham explained that the officers felt there were other co-conspirators and they were hoping James might cooperate and assist the officers in the investigation. (Id.)

Detective Oldham also testified that it would have been difficult to advise James in the car as they were transporting him to the precinct because it was dark. (Id. at 216). Althouigh they “certainly didn’t ride in silence” back to the squad room, Detective Oldham testified that the officers did not talk to James about cooperation during the car ride. (Id. at 217-18). Agent Kizenko testified that at the Major Case Squad, he took notes and Detective Old-ham questioned James. (Id. at 175, 178). Although Detective Oldham ultimately prepared the report, the detective took no notes himself. (Id. at 175, 219-20). Detective Oldham testified that he did not take notes but he prepared the report that night in part from memory. (Id. at 220; see Ex. E). He could not recall if he consulted anyone else’s notes. (Id. at 220-21). Among those present in the room with the defendant James during the questioning were Agent Kizenko, 'Detective Oldham, and William Haley, a former and now retired NYPD detective. (Id. at 149, 218).

According to Agent Kizenko, the officers first obtained biographical information from James, questioning the defendant about his date of birth, where he lived, place of birth, whether he had a wife or girlfriend, whether he had any children. (Id. at 177). Then Detective Haley read James his Miranda warnings. (Id. at 149, 214). Like the warnings given to defendant Mallay, the warnings were read to James from a standard card issued to NYPD officers. (Id. at 110, 150-51, 216). According to Agent Kizenko, James appeared to understand everything that was being said to him, and he agreed to speak to the officers without an attorney being present. (Id. at 149, 151). Detective Old-ham confirmed that during the interview James appeared to understand what was being said, understood the Miranda warnings, and gave responsive answers to the pedigree and other questions asked. (Id. at 234).

Agent Kizenko testified that during the hour between the time of Mr. James’ arrest and the time that the officers began to obtain the pedigree information from Mr. James, no threats or promises were made to induce Mr. James to talk. (Id. at 149-50). During the time James was in the room with the officers, he was in handcuffs, but none of the officers had their weapons drawn and no one threatened him in any way. (Id. at 150). James never indicated that he needed any medical treatment nor did he have any other requests, except possibly for some water which was given to him. (Id. at 151, 154).

Among other things, the officers questioned James about the driver of the vehicle. (Id. at 152). James told them that the person was a taxi driver, and that James was not familiar with him, but that James had known him for several days. (Id.)

The officers asked James if he knew John Singh, and if he knew Mallay. (Id. at 153). James indicated that he knew them both but that he had had a falling out with Mr. Mallay. (Id.) He did not, however, indicate why. (Id.) The officers asked what James did for a living and where his office was located. (Id. at 152,154). James told the officers that he was an insurance agent and that his office was on Liberty Avenue, in Queens. (Id. at 152, 154). With respect to the approximately $7,000 in cash and a double endorsed check which the agents found on his person at the time of arrest, James explained that he was taking it to someone in Guyana that evening. (Id. at 152). He was asked about his father who had died in a mysterious fashion and about other family members. (Id. at 179). He was asked about Malini Ramnarine, where she lived, how long James had known her and whether she had anything to do with the insurance policies that had her name on them. (Id. at 179-80). James told the officers that “she had nothing to do with this.” (Id. at 180). On cross-examination, Detective Oldham conceded that he probably told James that his girlfriend was in a lot of trouble and could be arrested, and that she might do better if James cooperated. (Id. at 223-25).

Agent Kizenko testified that James was asked a second time about John Singh. (Id. at 155). At that point, James asked for an attorney and the questioning ceased. (Id. at 155-56). According to Agent Kizenko, the interview lasted for approximately an hour before James asked to speak to an attorney. (Id. at 154, 156). After he made his request for counsel, James was taken to the Metropolitan Detention Center for lodging overnight because it was too late to take him to court. (Id. at 154-55).

The next morning, July 1, 2002, the agent contacted Mr. James’ attorney, Steve Zissou, Esq., and the officers then met with Mr. James and Mr. Zissou. (Id. at 156). A waiver of speedy arraignment was executed at that time. (Id. at 157).

DISCUSSION

A. Mallay’s Fourth Amendment Claims

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” See United States v. Lee, 916 F.2d 814, 818 (2d Cir.1990) (considering Fourth Amendment interest in abandoned suitcase). With few specific exceptions, a warrantless search is “ ‘per se unreasonable under the Fourth Amendment.’ ” United States v. Kiyuyung, 171 F.3d 78, 83 (2d Cir.1999) (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)). While the defendant has the burden of showing that he had a reasonable expectation of privacy in the place searched, see California v. Greenwood, 486 U.S. 35, 39-40, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); United States v. Perea, 986 F.2d 633, 639 (2d Cir.1993), the government bears the burden of demonstrating that a warrantless search falls within one of the exceptions to the warrant requirement. United States v. Perea, 986 F.2d at 639.

In this ease, there appears to be no dispute that Mallay had a reasonable expectation of privacy in his home. Thus, the question is whether the government has established that the warrantless search was justified by one of the exceptions. One of these specifically delineated exceptions is the “plain view” exception which allows police officers to seize an object without a warrant if they “are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object....” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); see also United States v. Kiyuyung, 171 F.3d at 83. In order to satisfy its burden under the “plain view” exception, the government must first establish that the officers were lawfully in a position to view the object and second, that the incriminating character of the evidence was readily apparent.

Turning first to the question of whether the officers were lawfully in Mallay’s home at the time they first observed the documents at issue, it is clear that “[t]he Fourth Amendment does not permit a warrantless entry into a suspect’s home to arrest him unless the circumstances are exigent or an occupant has consented.” United States v. Vasquez, 638 F.2d 507, 526 (2d Cir.1980), cert. denied, 454 U.S. 975, 102 S.Ct. 528, 70 L.Ed.2d 396 (1981). Indeed, even an arrest warrant does not authorize entry into the home of a third party to search for the individual named in the arrest warrant unless there has been a particularized judicial determination that the individual is present in the third party’s home. See Steagald v. United States, 451 U.S. 204, 215-16, 215 n. 8, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). Moreover, to enter a person’s residence pursuant to a warrant for his arrest, an officer must have reason to believe the individual is present in the home. Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Here, the government had an arrest warrant for defendant Mallay which authorized entry into Mallay’s apartment for the purpose of taking him into custody. There appears to be no dispute that the officers had a valid warrant, had reason to believe Mallay was inside, or that the location where the arrest occurred and where the items were found was in fact Mallay’s residence.

Once lawfully inside the Mallay premises, the officers testified that they proceeded to conduct a security sweep to determine whether there was anyone else in the premises who could potentially pose a risk of danger to the officers. (Tr. II at 11,105, 120). The Second Circuit has held that “[u]nder the ‘security check’ exception, when law enforcement officers have lawfully entered premises in connection with an arrest, they are entitled to make a quick and limited ‘security check’ of the premises to be sure there are no persons or objects on the premises to pose a safety threat to the officers.” United States v. Kiyuyung, 171 F.3d at 83 (citing, inter alia, Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)). Protective sweeps are to be “narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Maryland v. Buie, 494 U.S. at 327, 110 S.Ct. 1093. If during the course of conducting a “security check,” the officers observe patently incriminating evidence in plain view, they may seize that evidence without a warrant. United States v. Kiyuyung, 171 F.3d at 83 (citing Minnesota v. Dickerson, 508 U.S. at 375-76, 113 S.Ct. 2130); United States v. Rudaj, 390 F.Supp.2d 395, 402-03 (S.D.N.Y.2005).

To conduct a security sweep, officers must have “a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. at 336, 110 S.Ct. 1093 (citation omitted). There must be “specific, articulable facts to justify their warrantless search.” United States v. Gandia, 424 F.3d 255, 263 (2d Cir.2005).

In evaluating the presence of specific, articulable facts to justify a protective sweep, one factor emphasized by the Second Circuit is whether the officers acted with or without a warrant to execute the underlying arrest. In finding that a protective sweep violated the defendant’s Fourth Amendment rights, the court in United States v. Gandia noted that “[i]n the instant case — unlike when officers enter a suspect’s home in order to execute an arrest warrant or under exigent circumstances — there was no need for the police officers to enter [defendant’s] home in the first place.” Id. (finding insufficient facts to justify security sweep where officers investigating reports of a dispute, possibly involving a gun, stopped the suspect outside his apartment building and then proceeded to his apartment for further questioning where the sweep uncovered a bullet); see also United States v. Agapito, 620 F.2d 324, 336 (2d Cir.) (finding no facts to justify protective sweep of defendants’ hotel room under surveillance, after arresting defendants in hotel lobby seventeen floors below), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980). Likewise, when considering “circumstances other than an officer’s presence in a home for the purpose of effecting an arrest,” the Second Circuit found that mere “generalizations” about the dangerousness of drug couriers and their frequent meetings with contacts, “without more, [were] insufficient to justify a protective sweep.” United States v. Moran Vargas, 376 F.3d 112, 116 (2d Cir,2004).

In cases in which officers entered the defendant’s home to execute a warrant for his or her arrest, the Second Circuit has repeatedly found facts sufficient to justify a protective sweep. See United States v. Mickens, 926 F.2d 1323, 1328 (2d Cir.1991) (aff'g in relevant part, No. 88 CR 309(S-2), 1989 WL 20643, at *1 (E.D.N.Y. Feb.14, 1989) and noting that arrest was made pursuant to complaint), cert. denied, 502 U.S. 1060, 112 S.Ct. 940, 117 L.Ed.2d 111 (1992); United States v. Escobar, 805 F.2d 68, 69, 71 (2d Cir.1986); see also United States v. Manley, 632 F.2d 978, 979-80, 987 (2d Cir.1980) (upholding sweep of home that officers mistakenly believed to be defendant’s residence), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981). In each of these cases, the officers conducted the security sweep based solely on evidence suggesting the presence of one or more persons in the home and on the violent or conspiratorial nature of the defendant’s alleged crime. See United States v. Mickens, 926 F.2d at 1328 (citing officers’ reason to believe one defendant and her mother were at co-defendant’s house, and that co-defendant was known to be violent and to travel with others); United States v. Escobar, 805 F.2d at 71 (noting that defendant had not yet been arrested and that light and sound from the bedroom suggested the possible presence of third persons); United States v. Manley, 632 F.2d at 987 (indicating agents were aware of the presence of others and defendant was presumed violent, likely armed, and possibly accompanied by co-conspirators).

This Court finds the protective sweep of Mallay’s home to be in line with Second Circuit precedent finding a reasonable, articulable suspicion of danger sufficient to justify a protective sweep. The protective sweep was conducted following the officers’ entry into the home to execute a warrant for Mallay’s arrest. (Tr. II at 8-10.) Although the government’s argument that Mallay was dangerous because he was suspected to be involved in several murders (see Govt’s. Reply Mem. at 4; see also Tr. II at 120), is similar to the generalization that was rejected by the court in United States v. Moran Vargas, 376 F.3d at 116, the officers in Mallay’s case also had more specific information. Unlike the officers in United States v. Gandía, who “had no evidence ... that would indicate a third person might be hiding [in the residence],” 424 F.3d at 264, Detective Oldham and Agent Kizenko knew that Ms. Mallay was present in the home when she answered the door (Tr. II at 10), and they had reason to believe defendant Mallay was present as well. (See Tr. II at 9-10.). Knowing that they were arresting Mallay for conspiracy to commit murder, the officers “had security concerns” and “look[ed] for other people who could harm [them] or [their] fellow officers.” (Tr. II at 120). See also United States v. Manley, 632 F.2d at 987 (acknowledging concern about presence of coconspirators as a factor justifying protective sweep). Accordingly, this Court finds the protective sweep of defendant Mallay’s home to be justified.

In conducting the protective sweep, Detective Oldham and Agent Kizenko testified that immediately upon entering the Mallay residence, several officers secured Mr. Mallay on the couch in the living room (Tr. II at 10, 99); Ms. Mallay was accompanied by Agent Kizenko into the kitchen (id. at 10), while other officers, including Detective Oldham, fanned out through the apartment to secure the premises. (Tr. II at 10-11). The testimony of both witnesses establishes that Detective Oldham proceeded to the master bedroom, where he observed in plain view a stack of papers, sitting out in the open on the top of the bedroom dresser, which appeared to include documents resembling the insurance policies with which the detective had become familiar during the course of the investigation. (Id. at 6-7, 12, 78, 100-01).

Mallay argues that the officers’ testimony that these insurance policies were sitting on the top of the dresser in plain view “is just not credible.” (Mallay Supp. Mem. at 3-4). He contends that the testimony of Agent Kizenko that the documents were “fanned out” on the dresser top conflicts with Detective Oldham’s testimony that the documents were in a “neatly stacked” pile. (Id. at 5; compare Tr. II at 36-37 with Tr. II at 100-02, 123). Defendant further contends that instead of doing a “cursory” sweep, the officer here “took the time to examine and read documents on the Mallay’s bedroom bureau.” (Id. at 8). Thus, Mallay argues that the documents seized from the dresser were not “patently incriminating” and should be suppressed.

Although defendant contends that the items were not in plain view and that there was nothing “immediately apparent” to the agents that would suggest 'these documents were incriminating, the Court does not agree. As an initial matter, the Court credits the testimony of both Detective Oldham and Agent Kizenko that the documents were located on the top of the dresser and not concealed in a closed container in the bedroom closet as defendant has argued. (See Mallay Mem. at 17). Not only did both witnesses credibly deny any familiarity with a plastic file box shown to them by counsel at the.hearing (see Tr. II at 50, 104), but the timing of the discovery by Detective Oldham supports the officers’ testimony that the documents were in plain view. Agent Kizenko testified that he heard Detective Oldham call out to him within a minute or less than a minute after the officers entered the apartment. (Id. at 11, 12). That timing is consistent with the detective’s testimony that he walked into the master bedroom and then saw the papers sitting on the dresser to the right of the bedroom door. (Id. at 102, 103). If Agent Kizenko’s testimony is accurate, there would not have been enough time for Detective Oldham to have walked through the apartment, searched the closet, found the file box, opened it up to discover the policies inside, and then cleared a space on the dresser on which to place the policies.

Moreover, even though Mallay argues that there was no way that the officers could have recognized these documents as insurance policies simply from observation, without first searching through them, the Court does not agree. The officers had become familiar with the general appearance of insurance policies through their investigation into the defendants’ fraudulent scheme, which of course centered on fraudulent insurance policies taken out in other people’s names. {Id. at 6, 100-01, 118). The officers had reviewed numerous policies supplied to them by several insurance companies {see id. at 6), and they had previously executed a search warrant on defendant James’ office where policies like those at issue were seized. {Id. at 19, 119). The Court credits the officers’ testimony that by merely looking at the stack of papers, they recognized the familiar clear lucite cover and blue back on several of the policies which typically is the way these policies are bound. {Id. at 6-7, 100-01). Agent Kizenko further testified that there was printing on some of the documents, which also led him to believe that there were insurance policies included in the stack. {Id. at 78-79).

Finally, to the extent that Agent Kizenko’s description of the location and state of the insurance policies as being “fanned out” on the dresser differs from that of Detective Oldham’s description, no one questioned Detective Oldham as to whether he touched the documents or moved the stack of policies in any way prior to summoning Agent Kizenko to the room. Upon recognizing the stack to contain insurance policies subject to search in plain view, there would have been nothing wrong with the detective touching them or even picking them up to take them into the kitchen. Cf. United States v. Kiyuyung, 171 F.3d at 83 (permitting an officer to seize immediately apparent incriminating evidence during a security check); United States v. Rudaj, at 402-03. Thus, unlike the “glaring inconsistencies” in the officers’ testimony which supported suppression in United States v. Santos, 303 F.Supp.2d 333, 347 (S.D.N.Y.2003) {see Mallay Supp. Mem. at 5), the Court finds no major conflict between the officers’ testimony here.

Accordingly, based on the credible testimony of the officers, the Court finds that they were lawfully in Mallay’s premises and observed these insurance policies in plain sight. Therefore, it is respectfully recommended that Mallay’s motion to suppress the evidence seized from his residence be denied.

B. Mallay’s Fifth Amendment Claims

Mallay also moves to suppress his post-arrest statements on the grounds that he was subjected to custodial interrogation without the benefit of Miranda warnings, in violation of his Fifth Amendment rights.

The Fifth Amendment guarantees that “[n]o person... shall be compelled in any criminal case to be a witness against himself.”' In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court established certain procedural safeguards to protect individuals from the coercive effects of a custodial interrogation. Thus, before a suspect may be questioned in custody, law enforcement officials must advise the individual of his right to remain silent and his right to counsel, and there must be a knowing and voluntary waiver of those rights. Id. at 444, 475, 478-79, 86 S.Ct. 1602. Miranda recognized that if the prosecution could show that the individual “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel,” id. at 475, 86 S.Ct. 1602, then statements elicited during custodial interrogation should be admitted.

In Edwards v. Arizona, the Court went further and held that once an individual invokes his right to counsel, all interrogation must cease and the police are forbidden from approaching him for additional interrogation “until counsel has been made available to him,” 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 878 (1981), and is present for the questioning. See Minnick v. Mississippi, 498 U.S. 146, 152, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). Even if the suspect, who had already invoked his right to counsel, was to respond to police-initiated questioning in the absence of counsel, there is no valid waiver and the statements would be subject to suppression. See Edwards v. Arizona, 451 U.S. at 484, 101 S.Ct. 1880. This rule set forth in Edwards was “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990). However, it is clear that “the defendant must expressly invoke his Fifth Amendment right,” United States v. Laury, 49 F.3d 145, 149 (5th Cir.), cert. denied, 516 U.S. 857, 116 S.Ct. 162, 133 L.Ed.2d 105 (1995), before his rights under Edwards can attach.

The government bears a “heavy burden” of proof to show that defendant understood the rights and knowingly waived those rights. Tagne v. Louisiana, 444 U.S. 469, 470-71, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980) (per curiam), North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (holding that the prosecution bears a “great” burden to prove a valid waiver). “To prove a valid waiver, the government must show (1) that the relinquishment of the defendant’s rights was voluntary, and (2) that the defendant had a full awareness of the right being waived and of the consequences of waiving that right.” United States v. Jaswal, 47 F.3d 539, 542 (2d Cir.1995) (per curiam). The question of whether the waiver was made knowingly and intelligently differs from the question of voluntariness. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); see also Coronado v. Lefevre, 748 F.Supp. 131, 138-39 (S.D.N.Y.1990).

In assessing the validity of a waiver, courts examine the totality of the circumstances surrounding the interrogation. Fare v. Michael C, 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). In order to determine whether a statement was made voluntarily, the court must first determine whether the statement was the product of coercion on the part of law enforcement, see Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); United States v. DiLorenzo, No. S1 94 CR 303, 1995 WL 366377, at *6 (S.D.N.Y. June 19, 1995). Next, the court looks to the defendant’s mental state and other factors to determine if his will has been overborne by the actions of the law enforcement officers. See Green v. Scully, 850 F.2d 894, 902 (2d Cir.), cert. denied, 488 U.S. 945, 109 S.Ct. 374, 102 L.Ed.2d 363 (1988).

In assessing the issue of voluntariness, the Second Circuit has noted that voluntariness “is a question directed to a defendant’s state of mind, which can be inferred from his actions and statements.” United States v. Spencer, 995 F.2d 10, 11 (2d Cir.) (per curiam), cert. denied, 510 U.S. 923, 114 S.Ct. 323, 126 L.Ed.2d 269 (1993). As a consequence, courts look to a variety of factors, including the defendant’s age, see United States v. Burrous, 147 F.3d 111, 116 (2d Cir.) (finding that a sixteen year old knowingly and voluntarily waived his Fifth Amendment rights), cert. denied, 525 U.S. 939, 119 S.Ct. 358, 142 L.Ed.2d 295 (1998); United States v. Bernard S., 795 F.2d 749, 751-52 (9th Cir.1986) (holding that a seventeen year old is capable of valid waiver); the defendant’s intelligence and education, see United States v. Burrous, 147 F.3d at 116; Stawicki v. Israel, 778 F.2d 380, 382-84 (7th Cir.1985) (holding that defendant with high school equivalent and average intelligence made valid waiver), cert. denied, 479 U.S. 842, 107 S.Ct. 150, 93 L.Ed.2d 91 (1986); the defendant’s familiarity with the criminal justice system, see id. at 383-84 (holding waiver valid despite absence of express waiver where defendant had five prior arrests); and the defendant’s mental condition at the time of the interrogation. See United States v. Male Juvenile, 121 F.3d 34, 40 (2d Cir.1997) (holding that evidence introduced regarding defendant’s mental disabilities did not preclude finding that defendant knowingly waived his rights).

Courts have rejected claims that a statement was not voluntarily made even when the defendant claims that he is physically ill or intoxicated. See, e.g., United States v. Givens, 712 F.2d 1298, 1302 (8th Cir.1983) (holding that intoxication alone does not render a confession involuntary), cert. denied, 465 U.S. 1009, 104 S.Ct. 1005, 79 L.Ed.2d 237 (1984); Graves v. United States, 878 F.Supp. 409, 414 (N.D.N.Y.1995) (finding that even if the defendant was functioning with a limited capacity due to his consumption of alcohol, “there must still be some showing of official coercion” before the confession is deemed to be involuntary), aff'd, 89 F.3d 826, 1995 WL 767118 (2d Cir.1995); United States v. Di-Lorenzo, 1995 WL 366377, at *4-8 (finding that waiver was voluntary despite defendant’s testimony that he was exhausted and under the influence of alcohol and crediting testimony of law enforcement officer that defendant was “clear and coherent” and that he did not smell alcohol on defendant’s breath).

Similarly, where the defendant is physically ill, either as a result of trauma or as a consequence of having ingested drugs, the courts examine all of the circumstances surrounding the confession before determining if the defendant’s physical condition prevented him from understanding his rights. See, e.g., United States v. George, 987 F.2d 1428, 1430-31 (9th Cir.1993) (finding confession voluntary even though defendant was hospitalized from heroin overdose but indicated an understanding of his Miranda rights and responded intelligently to the agents’ questioning); United States v. Short, 947 F.2d 1445, 1448, 1450 (10th Cir.1991) (finding that where the defendant did not complain about feeling too ill to answer questions, spoke to the agents intelligently, and attempted to negotiate with them, his statements were voluntary even though he was taking various pain killers as a result of a serious motorcycle accident), cert. denied, 503 U.S. 989, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992); McCall v. Dutton, 863 F.2d 454-61 (6th Cir.1988) (finding no coercion even though defendant was bleeding from four gunshot wounds and was interrogated while lying on the ground, handcuffed and surrounded by four to eight officers, some with guns drawn), cert. denied, 490 U.S. 1020, 109 S.Ct. 1744, 104 L.Ed.2d 181 (1989); United States v. D’Antoni, 856 F.2d 975, 982 (7th Cir.1988) (finding defendant capable of valid waiver despite lack of sleep and alleged ingestion of drugs and alcohol), cert. denied, 516 U.S. 969, 116 S.Ct. 429, 133 L.Ed.2d 345 (1995); Wernert v. Arn, 819 F.2d 613, 616 (6th Cir.1987) (finding defendant capable of a valid waiver despite alleged ingestion of drugs and alcohol the day before confession), cert. denied, 484 U.S. 1011, 108 S.Ct. 711, 98 L.Ed.2d 662 (1988).

The courts also analyze the time that has elapsed between the reading of the rights and the statements, see Evans v. McCotter, 790 F.2d 1232, 1237-38 (5th Cir.) (holding that there was a valid waiver where the suspect was given warnings twice during a three-hour period), cert. denied, 479 U.S. 922, 107 S.Ct. 327, 93 L.Ed.2d 300 (1986); United States ex rel. Patton v. Thieret, 791 F.2d 543, 547-48 (7th Cir.) (finding valid waiver where warnings given within 40 minutes of the confession), cert. denied, 479 U.S. 888, 107 S.Ct. 284, 93 L.Ed.2d 259 (1986), the time lapse between arrest and arraignment, see United States v. Jaswal, 47 F.3d at 542 (noting that “‘a lapse of hours between arrest and arraignment, standing alone, does not require the exclusion of a statement made during the period’ ” and finding that statement was voluntary and that justifiable circumstances existed for delay) (quoting United States v. Rubio, 709 F.2d 146, 153 (2d Cir.1983)), and the nature of the waiver itself. See North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (noting that an express waiver is “usually strong proof of the validity of that waiver”). Other factors considered by the courts are the location and atmosphere of the interrogation, see Oregon v. Mathiason, 429 U.S. 492, 494-95, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), the length of the interrogation, see Berkemer v. McCarty, 468 U.S. 420, 437-38, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), and the tone and language used by the police during the questioning. See United States v. Guarno, 819 F.2d 28, 31-32 (2d Cir.1987). It should also be noted that though a defendant may be handcuffed during interrogation, as Mallay was in this case, this is not per se evidence of involuntariness. See, e.g., United States v. Seni, 662 F.2d 277, 281 (4th Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1453, 71 L.Ed.2d 664 (1982); United States v. Ogden, 572 F.2d 501, 503 (5th Cir.), cert. denied, 439 U.S. 979, 99 S.Ct. 564, 58 L.Ed.2d 650 (1978).

Mallay argues that like the officers’ testimony as to their discovery of documents in plain view, their testimony regarding Mahay’s Miranda waiver is created “out of whole cloth.” (Mallay Supp. Mem. at 9). Mallay bases this argument on the lack of a written confirmation of the waiver either through a signed waiver form or in the interview report. (See Mallay Supp. Mem. at 11 (citing United States v. Gaines, 295 F.3d 293, 298 (2d Cir.2002) (noting explicitly that “[w]hile it would be preferable to have physical evidence supporting [the officer’s] testimony ... defendant points to no evidence that would establish clear error on the part of the district court in choosing to credit [the officer’s] testimony over [that of the defendant]”)). He also contends that the testimony of the two officers is contradictory, with Agent Kizenko recalling Detective Oldham giving the warnings at the Major Case Squad (Tr. II at 20-22), and Detective Oldham believing that he gave the warnings in the car or either in the apartment or the car. (Id. at 107, 127; Mallay Supp. Mem. at 10).

There is no dispute that Mallay was subjected to a custodial interrogation and that he was clearly entitled to receive advice of his rights under Miranda. While the government has not responded to the arguments raised by Mallay in his post-hearing submission, having observed the testimony of the two law enforcement officers, which this Court credits, I find that the defendant Mallay was fully advised of each of his constitutional rights as prescribed by Miranda prior to the interview. I further find that he understood those rights as evidenced by his responses to Detective Oldham’s questions and his statement as recounted by both Agent Kizenko and Detective Oldham.

While clearly it would have been preferable to have a written waiver executed by Mallay, the Second Circuit has indicated that the absence of such a written waiver is not fatal to the government’s case. See United States v. Gaines, 295 F.3d at 298. Instead, the appellate court in that case relied on the trial court’s assessment of the credibility of the officers “because of its better vantage point from which to assess credibility.” Id. See also United States v. Rosa, 11 F.3d 315, 329 (2d Cir.1993). Again, while Detective Oldham testified that he provided Miranda warnings to Mallay in the car and/or the apartment (Tr. II at 107, 127), and Agent Kizenko believed they were given in the office {id. at 20), Agent Kizenko cannot recall if he was present in the car {id. at 76), consistent with his failure to recollect any warnings being given there. Thus, the officers’ statements are not in conflict, since Detective Oldham conceded that, consistent with Agent Kizenko’s testimony, the warnings may also have been administered- at the office. (Tr. at 127). Although defendant questions why the defendant would have been given Miranda warnings twice, the Court finds that this is not an unusual practice. See, e.g., New York v. Harris, 495 U.S. 14, 16, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990) (noting that officers read defendant his Miranda rights upon entering his apartment and again after taking him to station house); Arizona v. Mauro, 481 U.S. 520, 521-22, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987) (noting that defendant was advised of his Miranda rights upon arrest and again upon arrival at police station); Connecticut v. Barrett, 479 U.S. 523, 525-26, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987) (detailing that officers advised defendant of his Miranda rights upon arrival at police station, thirty minutes later when questioned, and for a third time before repeated questioning); Lee v. Illinois, 476 U.S. 530, 532, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (stating that defendant was given Miranda rights upon questioning, and again after being placed under arrest); Evans v. McCotter, 790 F.2d at 1234-35 (noting that defendant was given Miranda warnings upon arrest, upon arrival at police headquarters, and again before the justice of the peace, for a total of three times in less than six hours). This Court, therefore, concludes that the officers’ testimony in this regard was credible.

Moreover, there is no evidence that Mallay was physically ill, intoxicated, or on any medication that affected his ability to understand his rights. The lapse of time between the reading of the rights and the statements was at most a matter of minutes, further suggesting that the statements were made voluntarily and in the absence of any undue pressure or coercion. The officers’ description of the noncoercive circumstances surrounding the ensuing questioning and the nature of the responses given by Mallay demonstrate a knowing, voluntary, and intelligent waiver. See North Carolina v. Butler, 441 U.S. at 375-76, 99 S.Ct. 1755; United States v. Spencer, 995 F.2d at 12. Moreover, as set forth below in more detail, this Court credits the officers’ testimony and finds no evidence of any request by Mallay to speak with an attorney. See Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (noting that “the suspect must unambiguously request counsel”).

In sum, under a totality of the circumstances, the Court finds that the statements made were completely voluntary. Thus, this Court respectfully recommends that defendant Mallay’s motion to suppress his post-arrest statements, based on the alleged violation of his Fifth Amendment rights, be denied.

C. James’ Fifth and Sixth Amendment Claims

Claiming violations of the Fifth and Sixth Amendments, defendant James also seeks to suppress his pre-arrest statements made to the cooperating witness following ’the filing of the indictment, as well as his post-arrest statements made to the arresting officers.

1) Statements to the Officers

Turning first to James’ claim that his post-arrest statements made to the arresting officers should be suppressed, James raises Fifth Amendment voluntariness issues as well as Sixth Amendment concerns. James claims that because an indictment was pending against him at the