U.S. v. Pindyck

Full title: United States of America, Plaintiff, vs. Howard Pindyck, Phillip J. Bruno…

Court: United States District Court, D. Minnesota

Date published: May 2, 2003

Crim. No. 02-295(01-04) (JRT/RLE) (D. Minn. May. 2, 2003)

Opinion

Crim. No. 02-295(01-04) (JRT/RLE)

May 2, 2003

ORDER and FINDINGS AND RECOMMENDATION

RAYMOND ERICKSON, Magistrate Judge I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A) and (B), upon the following Motions:

1. The Government's Motion for Discovery.¹

2. The Motions of the Defendants Howard Pindyck ("Pindyck"), and Michael S. Czichray ("Czichray"), for Discovery and Inspection.²

3. The Motions of the Defendants Pindyck, Phillip J. Bruno ("Bruno"), and Czichray, to Compel Disclosure of Evidence Favorable to the Defendants.³

4. Pindyck's Motion for Disclosure of Government Witnesses.⁴

5. The Motions of Pindyck, Bruno, and Czichray, for Government Agents to Retain Rough Notes.⁵

6. Pindyck's Motion to Confirm or Deny the Unlawful Employment of Electronic Surveillance.⁶

7. The Motions of Pindyck, Bruno, and Czichray, for Early Disclosure of Jencks Act Material.⁷

8. The Motions of Pindyck, Bruno, and Czichray, for Notice of Other Offenses.⁸

9. The Motions of Pindyck, Bruno, Czichray, and Leonard Evangelist ("Evangelist"), for Severance.⁹

10. The Motions of Pindyck, and Czichray, to Allow Filing of Additional Motions.¹⁰

11. The Motions of Pindyck, Bruno, and Czichray, to Join in Co-Defendants' Motions.¹¹

12. The Motions of Pindyck, Bruno, and Czichray, for Disclosure of All Rule 1006 Exhibits and All Evidence upon which Those Exhibits Are Based.¹²

13. Bruno's Motion for Disclosure of Any Orders, Applications, and/or Supporting Affidavits for Electronic Surveillance.¹³

14. Bruno's Motion for Disclosure of the Identity of All Informants Who Were Witnesses to, or Participated in, the Crimes Charged in the Indictment.¹⁴

15. Bruno's Motion for Disclosure of Any Information Provided by Informants, their Criminal Records, and the Incentive Provided to Those Informants to Provide the Information.¹⁵

16. Bruno's Motion for Disclosure of All Investigative Reports Relating to this Investigation.¹⁶

17. Bruno's Motion for Disclosure of Copies of Any Handwritten or Tape-Recorded Notes of Interviews, Debriefings, or Surveil lance of Defendant and Alleged Co-Conspirators, Witnesses and Informants.¹⁷

18. The Motions of Bruno, and Czichray, for Production of Any Informants Whose Identity is Disclosed for Purposes of Conducting Pretrial Interviews.¹⁸

19. Bruno's Motion for Disclosure of Any Sound Recordings Relating to the Investigation.¹⁹

20. The Motions of Bruno, Czichray, and Evangelist, for Disclosure of All Incentives Offered or Provided to Each Witness Who the Prosecution Intends to Call at Trial.²⁰

21. The Motions of Bruno, and Czichray, to Delete Surplusage from the Indictment.²¹ 22. Czichray's Motion for Participation by Counsel in Voir Dire.²²

23. The Defendants' Joint Motion for Continuance of Trial Date.²³

1 The Defendants did not object to the Government's Motion for Discovery and, therefore, we grant the same.

2 Consistent with our usual practice, discovery will be granted to the full extent contemplated by Rules 16 and 26.2, Federal Rules of Criminal Procedure, by Brady and its progeny, and by the Jencks Act. Moreover, we require that any party, who intends to offer opinion evidence at the time of Trial, to disclose that evidence by no later than twenty-one (21) days prior to Trial. Therefore, the Motions of Pindyck, and Czichray, are granted, subject to noted caveats.

3 The Government has acknowledged its obligations under United States v. Gialio, 405 U.S. 150 (1972), Brady v. Maryland, 373 U.S. 83 (1963), and their progeny, and has advised that this information either has been, or will be, produced to the Defendants. Thus, these Motions are granted. Czichray objects to this Court's customary employment of footnotes in the granting of this, and similar Motions, and requests that, if the Government has any Brady material, that such evidence be produced, forthwith. As we have granted this Motion, in part on the representations of the Government, that any Brady material in its possession either has been, or will be, produced, we find Czichray's objection unclear. To the extent that Czichray invites us to determine what evidence is properly classified as Brady, or not, we are not positioned to do so prospectively. If specific information is denied to any Defendant on Brady grounds, and if that Defendant challenges the denial, we would be pleased to resolve the issue, but no such issue has been drawn to our attention.

4 Under the prevailing law of this Circuit, there is no obligation for the Government to disclose its witness list during pretrial discovery. Arcoren v. United States, 929 F.2d 1235, 1242 (8th Cir. 1991), cert. denied, 502 U.S. 913 (1991); United States v. Porter, 850 F.2d 464, 465 (8th Cir. 1988); United States v. McMahan, 744 F.2d 647, 651 (8th Cir. 1984) (Brady "does not require the Government to provide defendants with all information it has regarding each of the witnesses"); United States v. Finn, supra at 1316. Thus, we deny this Motion to Compel the disclosure of the Government's witness list.

5 The Government did not oppose these Motions and, therefore, the same are granted.

6 The Government has confirmed that, on a number of occasions, with the assistance, consent, and in the presence of, cooperating witnesses, including the Defendant Leonard Evangelist, sound recordings have been obtained. As the Government has provided Pindyck with the information subject to this Motion, the Motion is denied as moot.

7 The established rule in this Circuit is that, ordinarily, the Government is not required to disclose Jencks Act material prior to the direct examination of the witness to whom the material pertains. see,United States v. Green, 151 F.3d 1111, 1115 (8th Cir. 1998); United States v. Wilson, 102 F.3d 968, 971 (8th Cir. 1996); United States v. Douglas, 964 F.2d 738, 741 (8th Cir. 1992); United States v. White, 750 F.2d 726, 729 (8th Cir. 1984). Nevertheless, the Government has agreed to disclose its Jencks Act material by no later than three days before Trial. Therefore, we grant the Defendants' Motions, but subject to the three-day limitation.

8 The Government has represented that the Rule 404(b) evidence, which comes within its possession, will be disclosed to the Defendants, by no later than fourteen (14) days before the Trial date. As a consequence, we grant these Motions, but subject to that fourteen-day time constraint.

9 As our Court of Appeals has recently reiterated, "Rule 8(a) is broadly construed in favor of joinder." United States v. Rock, 282 F.3d 548, 552 (8th Cir. 2002), citing United States v. Rodaers, 732 F.2d 625, 629 (8th Cir. 1984). Moreover, the Defendants have not demonstrated that a joint Trial on the charged offenses will result in "severe prejudice." Id., quoting United States v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995); see also, United States v. Smith, 266 F.3d 902, 906 (8th Cir. 2001) (" [S]evere prejudice occurs when a defendant is deprived of `an appreciable chance' that he would have been acquitted in a severed trial."), quoting United States v. Koskela, 86 F.3d 122, 126 (8th Cir. 1996). Here, the Defendants offer nothing other than bald assertions that the joinder of their Trials would violate their rights and, therefore, we deny their Motions of the Defendants for Severance.

10 The Defendants represented that they saw no need to file additional Motions and, therefore, we deny, as moot, the Motions of Pindyck, Bruno, and Czichray, to file additional Motions.

11 Pindyck, Bruno, and Czichray withdrew their Motions to join in Co-Defendants' Motions and, therefore, the same are denied as moot.

12 The Government does not oppose these Motions, and represents that it has already made available the underlying data and documents that will form the basis of any Rule 1006 exhibits, and that the Government will continue to do so as additional evidence is gathered, and as exhibits are prepared. Thus, we grant these Motions.

13 The Government has represented that all electronic surveillance was obtained with the assistance, consent, and in the presence, of cooperating witnesses, including Evangelist, and that all recordings have been made available to the Defendants. Thus, we deny Bruno's Motion as moot.

14 The Government does not oppose this Motion, and has also identified the informants. Thus, we deny this Motion as moot.

15 The Government also does not object to this Motion, and has provided the information requested. Therefore, this Motion is denied as moot.

16 The Government objects to this Motion on the ground that the Defendant is not entitled to the broad scope of discovery requested. We agree, and therefore, the Motion is denied. The Government represented, however, that, insofar as Bruno seeks discovery that falls within the ambit of Rule 16(a), or Brady, it has produced those items, and will continue to fully comply with Brady. Giglio, and their progeny.

17 The Government has represented that all electronic surveillance was obtained with the assistance, consent, and in the presence, of cooperating witnesses, including Evangelist, and that all recordings have been made available to the Defendants. Thus, we deny Bruno's Motion as moot. As noted, insofar as Bruno seeks the disclosure of rough notes in this Motion, the Government has represented that its agents will retain all rough notes.

18 The Government does not object to this Motion, and has identified its informants. Accordingly, we deny this Motion as moot.

19 The Government has represented that all electronic surveillance was obtained with the assistance, consent, and in the presence, of cooperating witnesses, including Evangelist, and that all recordings have been made available to the Defendants. Thus, we deny Bruno's Motion as moot.

20 The Government has acknowledged its obligations under Giqlio, Bagley, and their progeny, and has represented that it will comply with its obligation to disclose relevant impeaching evidence. Therefore, we grant these Motions.

21 Rule 7(d), Federal Rules of Criminal Procedure, provides that "[t]he court on motion of the defendant may strike surplusage from the indictment or information." In interpreting this provision, our Court of Appeals has instructed that "a motion to strike surplusage from an indictment `should be granted only where it is clear that the allegations contained therein are not relevant to the charge made or contain inflammatory and prejudicial matter.'" United States v. Fiaueroa, 900 F.2d 1211, 1218 (8th Cir. 1990), quoting Dranow v. United States, 307 F.3d 545, 558 (8th Cir. 1962); see also, United States v. Parker, 165 F. Supp.2d 431, 471 (W.D.N.Y. 2001). As the Courts have elsewhere observed, "`this is a rather exacting standard, and only rarely has surplusage been ordered stricken.'" United States v. Andrews, 749 F. Supp. 1517, 1518 (N.D. 111. 1990), quoting United States v. Chaverra-Cardona, 667 F. Supp. 609, 611 (N.D. 111. 1987). The Court inUnited States v. Fiaueroa, supra at 1218, went on to observe that "significantly, appellants fail to cite a single instance where an overt act allegation overstates the evidence presented or refers to inadmissible evidence."
Bruno and Czichray have failed to cite any allegation set forth in the Indictment that is not relevant to the charges made, or that contains inflammatory and prejudicial matter. Therefore, we deny these Motions as without merit.

22 This is a Motion in limine which we defer to the District Court, which regulates the conduct of the Trial proceedings.

23 We also defer this Motion to the District Court, and note that the Court, by order dated February 12, 2003, granted a similar joint Motion by the Defendants for a continuance of the Trial date. see,Docket No. 110.

24. The Defendants' Motions to Suppress Statements.²⁴

25. The Defendants' Motions to Suppress Physical Evidence.

26. The Motions of Pindyck, Bruno, and Czichray, to Dismiss the Indictment.

27. Bruno's Motion to Suppress All Electronic Surveillance Evidence and Any Evidence Derived Therefrom.²⁵

24 Although Bruno filed a Motion "to suppress physical evidence, statements made by [Bruno] or identifications of [Bruno] obtained as a result of any illegal searches, seizures or interrogations, or identification procedures," see Docket No. 52, the Government has not revealed any statements provided by Bruno, nor has Bruno asserted that he made any statements to law enforcement. Bruno also did not provide the Court with supplemental briefing as to any Motion to Suppress Statements. Thus, we recommend that Bruno's Motion to Suppress Statements be denied.

25 No basis to suppress the video recordings has been advanced by any Defendant and, therefore, we recommend that Bruno's Motion to Suppress such evidence be denied.

A Hearing on the Motions was commenced on November 22, 2002, at which time Pindyck appeared personally, and by Kevin J. Short, Esq.; Bruno appeared personally, and by John C. Brink, Esq.; Czichray appeared personally, and by Peter B. Wold, Esq.; Evangelist appeared personally, and by Thomas M. Kelly, Esq.; and the Government appeared by John R. Marti, and Erica H. MacDonald, Assistant United States Attorneys. The testimony presented at the Hearing was extensive, and the Hearing was not concluded on November 22, 2002. In order to accommodate the parties, additional Hearings were scheduled, and additional evidence was adduced, on November 26, 2002, November 27, 2002, January 7, 2003, and January 8, 2003.²⁶

26 The parties have engaged, with Court leave, in extensive post-Hearing briefing, with the Court receiving the last submitted legal brief on February 7, 2003, after which, the Motions were taken under advisement. see, Title 18 U.S.C. § 3161(b) (IMF) and (J); Henderson v. United States, 476 U.S. 321, 330-32 (1986); United States v. Blankenship, 67 F.3d 673, 676-77 (8th Cir. 1995).

As to those Motions which remain for disposition, we recommend that the Defendants' Motions to Suppress be denied, and that the Motion of Pindyck, Bruno, and Czichray, to dismiss the Indictment also be denied.

II. Findings of Fact

In a twenty-seven Count Superseding Indictment, the Defendants were charged with conspiracy, in violation of Title 18 U.S.C. § 371; false statements relating to health care matters, in violation of Title 18 U.S.C. § 1035; health care fraud, in violation of Title 18 U.S.C. § 1347; and a forfeiture allegation, arising under Title 18 U.S.C. § 982(a)(7). The Conspiracy Count is said to have occurred from in, or about 1996, until in, or about April of 2001, in this State and District, as well as elsewhere.

The Defendants were suspects in a long-running FBI investigation of health care billing fraud schemes in Minnesota. As part of that investigation, Special Agents of the Federal Bureau of Investigation ("FBI") Todd Thompson ("Thompson"), Shawn Boylan ("Boylan"), and Timothy Bisswurm ("Bisswurm"), conducted investigations/ including interviews, of Evangelist and Czichray, and executed Search Warrants at the businesses where the Defendants were employed. The Agents also obtained information from the private investigative efforts of agents from State Farm Insurance Company ("State Farm"), including statements made by Pindyck and Czichray. As pertinent to these charges, and to the Motions pending before us, the operative facts may be briefly summarized.²⁷

27 Rule 12(e), Federal Rules of Criminal Procedure, provides that, "[w]here factual issues are involved in determining a motion, the court shall state its essential factual findings on the record." As augmented by our recitation of factual findings in our "Discussion," the essential factual findings, that are required by the Recommendations we make, are contained in this segment of our Opinion. Of course, these factual findings are preliminary in nature, are confined solely to the Motions before the Court, and are subject to such future modification as the subsequent development of the facts and law may require. United States v. Moore, 936 F.2d 287, 288-89 (6th Cir. 1991); United States v. Prieto-Villa, 910 F.2d 601, 610 (9th Cir. 1990).

A. The FBI's Investigation of Evangelist.

In approximately November of 1999, Thompson began investigating the Defendants. According to Thompson's testimony, the FBI conducted electronic surveillance of the Defendants, using three cooperating witnesses. Thompson identified those cooperating witnesses as Tyrone Robinson, Mollie Robinson (the "Robinsons"), and Evangelist. Thompson explained that he was familiar with the Robinsons from a pervious health care fraud investigation, and that the FBI had used the Robinsons to assist in other investigations. Thompson testified that he approached the Robinsons, and asked for their assistance in the investigation of the Defendants.

The Robinsons both consented to participating in electronic surveillance and, on March 1, 2000, they both signed consent forms confirming that agreement. See, Government Ex. 11. On January 25, 2001, Evangelist also voluntarily, and without threats or promises, signed an FBI consent form, agreeing to the installation of a recording device on any telephone he used. See, Government' s Ex, 12. Thompson testified that no recordings were made prior to when he obtained the consent of the cooperating witnesses.

Thompson testified that Tyrone Robinson, acting as a patient, and while wearing an audio/visual recording device, met with Evangelist at Evangelist's clinic. Thompson explained that, based on information obtained through Tyrone Robinson, he wanted to interview Evangelist, and that, on January 24, 2001, Thompson accompanied by Boylan, went to Evangelist's home for the purpose of interviewing him.

The interview of Evangelist, on January 24, 2001, commenced at approximately 9:25 o'clock a.m. Evangelist arrived home at that time, and the Agents, who had been parked on the street near Evangelist's residence, pulled their vehicle into the driveway behind Evangelist's vehicle, which Evangelist had parked in his garage. Boylan, introduced himself to Evangelist, with the display of his credentials, as a Special Agent with the FBI, after he entered Evangelist's garage, just as the garage door was closing, thus triggering the electronic sensor for the automatic garage door, which prevented the door from fully closing. At that time, Thompson was removing equipment from the vehicle in which the Agents had arrived and, therefore, he did not witness the initial introduction. Neither Agent displayed a weapon, and Evangelist consented to allowing the Agents into his home.

Inside, the Agents, and Evangelist, took seats around Evangelist's dining room table. Boylan explained to Evangelist that the interview was consensual, and that he was not under arrest. Evangelist did not object, and made no requests that they leave or not question him. Boylan then shared, with Evangelist, information obtained through the FBI's investigation, in an effort to convince Evangelist to cooperate with them in the further investigation. The information included an audio/video tape of Evangelist purportedly directing an unnamed individual to submit false information to an insurance company.

Thompson and Boylan then spoke with Evangelist for approximately six hours, until around 3:35 o'clock p.m. Evangelist, however, did not remain seated at the table through the entire duration of the interview, but rather, on one occasion, Evangelist asked to take a break, during which he went out onto his deck to smoke a cigarette. Evangelist also cleaned a coffee pot in the kitchen, and put his dog into the garage. On two occasions, someone from his clinic telephoned Evangelist, in order to inquire whether he intended to report at the clinic that day. Evangelist spoke to the clinic employee on each occasion and, during the second call, he informed the caller that he would report to the clinic around 3:00 o'clock p.m. Evangelist used the bathroom on at least one occasion. Thompson asked Evangelist if he could escort him to the bathroom, for reasons of officer safety, Evangelist agreed, and Thompson looked into the bathroom, prior to Evangelist entering the room, in order to determine whether there were any weapons inside. Thompson did not, however, remain with Evangelist while the latter used the bathroom. Thompson similarly escorted Evangelist, when Evangelist put his dog in the garage.

At approximately 2:30 o'clock p.m., after Evangelist had expressed concern that his daughter, and wife, would soon be returning home, Thompson and Boylan wanted to discuss how to proceed with the interview and, therefore, decided to contact Bisswurm, for the purpose of taking background information from Evangelist while Thompson and Boylan discussed their options.

Thompson testified that Evangelist provided information concerning fraudulent bills submitted to insurers prior to Bisswurm's arrival. When Bisswurm arrived, he briefly recorded background information from Evangelist, while Thompson and Boylan decided to accept Evangelist's offer to continue the interview at another location. Evangelist had earlier suggested a nearby public library, and the Agents accepted that suggestion. Evangelist, the only one familiar with the library, drove his own vehicle, accompanied by Boylan, while Thompson and Bisswurm followed in separate vehicles.

At the library, the Agents, and Evangelist, found a table in the children's section, which was somewhat secluded, but there were also some children in the general area. By the time they reached the library, the Agents were ready to prepare a statement for Evangelist's signature, and Boylan moved to an adjacent table to prepare the statement, while Thompson made several telephone calls to his supervisor. Bisswurm continued to take background information from Evangelist.

Evangelist was informed of the consensual nature of the interview process again at the library, and he was also told that his signing of the statement, which was prepared by Boylan, was also voluntary. Evangelist never stated that he did not wish to speak to the Agents. When presented with the prepared statement, Evangelist read it, and advised the Agents as to what changes, or corrections, to the make in the statement. Evangelist did, in fact, make changes to the statement, and then signed the statement, affirming that he had read, and understood, the contents of the statement, and that he agreed with the contents of that statement. He also initialed, and dated, each page of the statement. See, Government's Ex. 9. Thompson and Boylan also signed the prepared statement which had previously been executed by Evangelist. Id. After signing the statement, Evangelist, and the Agents, left the library separately, and parted company.

A second interview was conducted with Evangelist, later that evening. During the preceding interview, Evangelist had trouble remembering the names of patients, for whom bills were submitted to insurers for services, which were assertedly rendered fraudulently, as the patients, purportedly, had not received any treatment for the time that was billed. The Agents, and Evangelist, agreed to meet at Evangelist's clinic around 7:15 o'clock p.m., a time at which the clinic would be closed, in order that Evangelist could have time to review his records, and refresh his recollection. Once again, Evangelist was told that he was not required to meet with the Agents, and that his participation was voluntary.

At the clinic, the Agents, and Evangelist, sat in Evangelist's office, where Evangelist consulted files, and identified the names of some of the patients who had claimed services that had not been rendered. Evangelist also gave the Agents a tour of his clinic. In the front desk area, the Agents saw a sheet containing the names of approximately forty patients who had been seen that day. The Agents asked to make a photocopy of that listing, and Evangelist gave his consent for them to do so. This interview concluded at approximately 9:00 o'clock p.m.

The next morning — January 25, 2001 — Thompson and Boylan met with Evangelist for a third time, at a Burger King restaurant, which had been selected by Evangelist. Thompson expressed concern for Evangelist's mental state, which was one of the reasons for wanting to meet Evangelist on that occasion, as neither Thompson, nor Boylan, asked any questions of Evangelist. Also on that occasion, Evangelist signed the consent form, in which he agreed to participate, as a cooperating witness, in electronic surveillance. Thompson testified that he, and other Agents, met with Evangelist on approximately eight other occasions, both at the Burger King, and at Evangelist's clinic.

Thompson, Boylan, and Bisswurm, testified that, at no time, did Evangelist ever ask for an attorney. Thompson explained that Evangelist had once asked whether he needed an attorney, during one of their meetings at the Burger King, and Thompson responded that the decision to contact an attorney was for Evangelist to make — an explanation that Thompson provided to anyone in the same circumstance. By his Motion to Suppress, Evangelist seeks to suppress the statements he made to the FBI, during each of the referenced interviews.

B. The FBI's Interview of Czichray.

As a part of the FBI's continuing investigation of the Defendants, on February 16, 2001, at approximately 5:00 o'clock a.m., Bisswurm telephoned Czichray's residence, in order to determine if anyone was at home. Bisswurm testified that whoever answered the telephone sounded "growly," as if the individual had been sleeping. Bisswurm telephoned a second time, in order to determine whether the individual who had answered was Czichray, as Bisswurm was not sure whether Czichray resided at that residence. Bisswurm did not identify himself on either occasion.

At approximately 6:30 o'clock a.m., Bisswurm and Boylan approached what they soon discovered was Czichray's home, and they knocked on the front door. When nobody answered the door, the Agents returned to their vehicle in order to telephone the residence a third time. Agent Boylan then called Czichray's residence and, without identifying himself as an FBI Agent, he informed Czichray that Czichray needed to come to the door.

The Agents then approached Czichray's house a second time, and observed the television on, inside the home, through a front window. Czichray, wearing only a t-shirt and boxer shorts, was waiting, and opened the door for the Agents. The Agents had their credentials displayed, and Czichray allowed the Agents to enter. Inside the home, the officers again identified themselves as FBI Special Agents. The Agents related that they had some information to share with him, and they asked if they could have "a little bit of his time." [T. Vol. III, 141]. Czichray then sat in his living room, without the Agents telling him where to sit, and the Agents also sat down in the same room.

Upon being seated in Czichray's living room, the Agents told Czichray that his participation in any discussion with them was voluntary, and that Czichray could ask the Agents to leave at any time. Boylan then began presenting Czichray with information that the Agents had acquired regarding Czichray's clinic, including the means by which the F3I conducts investigations generally. As pertinent to that explanation, Boylan related that the FBI often contacted individuals who may have information related to the FBI's investigation which, he stated, could include Czichray's father, family, and friends, and Boylan informed Czichray that the FBI would "light up his world." [T. Vol. Ill, 145]. The Agents then questioned Czichray about his involvement in the alleged insurance fraud scheme.

The entire interview lasted about seven hours. Approximately an hour into the interview, Czichray, while still wearing only a t-shirt and boxer shorts, asked the Agents if he could put on some pants, and the Agents expressed no objection. Until that time, Czichray had not expressed any desire to change his attire. Boylan accompanied Czichray to a back bedroom, and peered into the bedroom briefly, but he waited in the hallway while Czichray dressed. The same procedure occurred when Czichray asked to use the bathroom, but Boylan asked Czichray if there was a telephone in the bathroom, and Czichray told him there was not. Boylan asked Czichray if there was a telephone in the bathroom because he wanted Czichray to know that, if he told anyone that the FBI was in his home, it was going to be difficult for Czichray to cooperate with the FBI because everyone would know that he was cooperating. [T. Vol. II, 66]. On several occasions, the phone rang, but it was not answered.

The Agents denied that they ever instructed Czichray not to answer the phone. Around 9:30 o'clock a.m., Boylan suggested to Czichray that he call his clinic to tell them that he was sick, and that he would not be reporting to the clinic. Boylan also suggested that Czichray not tell anyone that he was speaking with the FBI. The only other instances, in which Czichray left his seat during the seven hour interview, were to go into the kitchen to get a glass of water, and to feed the cat. Czichray, however, remained within the Agents' field of vision while doing so.

Czichray never expressed any discomfort during the course of the Agents presence in his home, never told the Agents that he was bothered by his purported allergy to cats, never expressed a desire to change clothing — prior to when he actually changed his clothing — never asked the Agents to leave, and never asked for an attorney. The interview was conducted in a relaxed environment, and the Agents never raised their voices, or threatened Czichray. The Agents told Czichray, repeatedly, that his participation in the interview was voluntary, and that, if asked, they would leave the premises.

Finally, at the conclusion of the interview, Czichray agreed to sign a written statement, which Boylan prepared. The Agents asked Czichray to read the statement, to make any corrections to the statement that he felt were necessary and, once he felt the statement was accurate, to sign the statement. Czichray read the statement and, after making at least one correction, Czichray signed the statement. He also initialed, and dated, each page of the statement. Czichray challenges the voluntariness of the statements he made to the FBI.

C. The Investigation by State Farm Insurance Company.

Independent of the FBI's investigation of the Defendants, State Farm was also investigating claims, that had been submitted by the Defendants on behalf of State Farm's insureds. On June 21, 2000, Dale Krueger ("Krueger"), a claims representative in the Special Investigation Unit of State Farm, and Michael Bernhagen ("Bernhagen"), who was also with State Farm, met with Pindyck and Czichray, and took statements from them. Krueger testified that, with respect to the Defendants in this case, he did not recall whether he had met with anyone from the Government, including Thompson, prior to June 21, 2000, but he did testify that Nancy Stalogh ("Stalogh"), who was a co-worker of Krueger's, had met with Thompson on November 16, 1999, although he denied that Stalogh told him about the meetings prior to June 21, 2000.

Thompson testified that he thought Krueger was present at the meeting on November 16, 1999, but Thompson was most likely mistaken in this recollection. See, Pindyck's Memorandum in Support of Motion to Suppress June 21, 2000 Statement of Defendants Czichray and Pindyck, at 3-4. Krueger also testified that he did not remember if he met with Stalogh regarding the Defendants, on or before November 16, 1999. Krueger assumed responsibility for the investigation from Stalogh, in January of 2000. See, Government's Ex. 32. Krueger further testified that his interview of Pindyck, and Czichray, was not at the request of any law enforcement agents, or the Government, nor were any law enforcement agents present at the time of the interview.

Counsel for Pindyck asked Krueger about the questions he posed to Pindyck, and Czichray, on June 21, 2000, and he specifically inquired whether Krueger had used scripted questions. Krueger responded that he had used scripted questions during the interview, but the questions were ones that he, alone, had prepared, and he testified that he did not formulate those questions based on any discussions that he had with Stalogh, or the Government.

Pindyck's attorney then asked Krueger if he had requested the Defendants to view any patient files, and Krueger testified that he asked to see the files for Kou Lee. Krueger added that he had asked to see other files, but that he could not recall the names of the other patients. Krueger also picked up the files on Muhammad Noor ("Noor"), at Stalogh's request, even though he was not personally involved in the investigation of Noor's file.

Bisswurm testified that Noor was an FBI informant, who the FBI believed was involved in insurance fraud, arising from a traffic accident in which Noor had been involved. Bisswurm contacted State Farm regarding Noor, as Noor was insured by State Farm. Bisswurm also contacted Noor, in order to determine where Noor had received chiropractic treatment, and he discovered that Noor had been out of the country for a period of time during which the Defendants' clinics had billed State Farm for services assertedly performed on Noor. Bisswurm testified that, although he requested documents from State Farm which related to Noor, he never asked State Farm to investigate the Defendants, or Noor.

In addition to the interview of Pindyck, and Czichray, on June 21, 2000, Krueger visited the Defendants' clinics on a number of occasions, each time preparing reports relative to his observations, which included the preparation of diagrams of the Defendants' clinics, which were later given to the FBI, and were subsequently used by the FBI in applications for Search Warrants for the clinics. Krueger testified that he prepared the reports, and diagrams, from his own recollection. He further testified that he only produced his work product to the FBI, upon the FBI's formal written request and, otherwise, he would not have given the diagrams, and reports, to the FBI. The documents were provided in conformity with Minnesota Statutes Section 609A.951-955. Pindyck and Czichray contend that Krueger was acting as an agent of the Government, during the June 21, 2000 interview, and they move to suppress the statements that Krueger disclosed to the Government.

C. The FBI's Execution of Search Warrants on the Defendants' Clinics.

Upon the Application and Affidavit of Thompson, three Search Warrants were issued by United States Magistrate Judge E.S. Swearingen, on February 12, 2001. The first Warrant authorized a search at 1885 University Avenue, Suite 36, St. Paul, Minnesota, which is the office of Ocean Management Services, Inc. ("Ocean Management"), which is alleged to be the central billing office for the affiliated clinics. The second Warrant authorized a search of Northeast Spinal Rehabilitation, Inc. ("Northeast Spinal"), which is located at 234 Broadway Street, in Minneapolis, Minnesota. A search of a second clinic, the St. Paul Spinal Health Center ("St. Paul Spinal"), which is located at 891 Arcade Street, in St. Paul, Minnesota, was authorized by the third Warrant.

Thompson's Affidavit, which was submitted in support of all three Warrants, was twenty-two (22) pages in length, and attested to his almost ten years of experience as a Special Agent for the FBI, and specifically, to his seven years of experience investigating health care fraud. See, Government's Exs. 13, 14, 15. In his Affidavit, Thompson detailed the fruits of his investigation into the Defendants' alleged health care fraud scheme, as well as their relationship to the premises sought to be searched in the Warrants. A full recitation of the details of Thompson's Affidavit, however, is unnecessary to our resolution of the Motions of Pindyck, Bruno, and Czichray, to suppress the evidence seized in the warranted searches of the clinics.

III. Discussion

A. The Defendants' Motions to Suppress Statements.

Evangelist seeks to suppress the statements he made to Thompson, Boylan, and Bisswurm, on January 24, 2001. Czichray moves to suppress his statements, which were made, on February 16, 2001, to Boylan and Bisswurm; and Czichray, and Pindyck, move to suppress their statements to Krueger, and Bernhagen, who were employees of State Farm.

1. Standard of Review. Government agents are not required to administerMiranda warnings to everyone whom they question. See, Oregon v. Mathiason, 429 U.S. 492, 495 (1977). Rather, Miranda warnings are required for official interrogations where a "person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Stansbury v. California, 511 U.S. 318, 322 (1994), quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966); United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir. 1985); Berkemer v. McCarty, 468 U.S. 420, 428-29 (1984). However, "Miranda has no application to statements * * * that are voluntarily offered and are not a product of either express questioning or any police practice reasonably likely to evoke an incriminating response." United States v. Griffin, 922 F.2d 1343, 1357 (8th Cir. 1990), citing United States v. McGauley, 786 F.2d 888, 891 (8th Cir. 1986), and United States v. Webster, 769 F.2d 487 (8th Cir. 1985).

Indeed, our Court of Appeals has "repeatedly held that `[a] voluntary statement made by a suspect, not in response to interrogation, is not barred by the Fifth Amendment and is admissible with or without the giving of Miranda warnings.'" United States v. Hatten, 68 F.3d 257, 262 (8th Cir. 1995); United States v. Cunningham, 133 F.3d 1070, 1074 (8th Cir. 1998) (where officers merely listen to suspect, `nothing prohibits use of suspect's statements against him); United States v. Haves, 120 F.3d 739, 744 (8th Cir. 1997)("Miranda does not protect an accused from a spontaneous admission made under circumstances not induced by the investigating officers or during a conversation not initiated by the officers."); United States v. Hawkins, 102 F.3d 973, 975 (8th Cir. 1996) ("Miranda does not protect an accused from a spontaneous admission made under circumstances not induced by the' investigating officers or during a conversation not initiated by the officers."), citing Butzin v, Wood, 886 F.2d 1016, 1018 (8th Cir. 1989); United States v. Kalter, 5 F.3d 1166, 1168-69 (8th Cir. 1993) (Miranda does not require suppression of spontaneous utterances which are not the product of interrogation); United States v. Waloke, 962 F.2d 824, 828-29 (8th Cir. 1992) (suspect's spontaneous statements, while in transit to a detention center, were voluntary, were not the product of interrogation, and did not require the administration of a Miranda warning).

Whether an accused was subjected to custodial interrogation is to be determined from the totality of the circumstances. See, United States v. Hanson, 237 F.3rd 961, 963 (8th Cir. 2001); California v. Beheler, 463 U.S. 1121, 1125 (1983). In determining whether a suspect is "in custody," we examine whether the extent of the physical or psychological restraints, which were imposed upon the Defendant, during an interrogation by law enforcement, would have been understood by a "reasonable person in the [Defendants'] position" as being consonant with the condition of being in custody. Berkemer v. McCarty, supra at 442;United States v. Gates, 251 F.3d 1164, 1166 (8th Cir., 2001); United States v. Carter, 884 F.2d 368, 370 (8th Cir. 1989). Paraphrasing the Court in United States v. Griffin, 922 F.2d 1343, 1357 (8th Cir. 1990): If the Defendant believed his freedom of action had been curtailed to a "degree associated with formal arrest," and that belief was reasonable from an objective viewpoint, then the Defendant was being held in custody during the interrogation. See also, Stansbury v. California, supra at 1529; United States v. Chamberlain, 163 F.3d 499, 503 (8th Cir. 1999).

Under the law of this Circuit, the relevant factors to be considered in making a determination of custody include an accused's freedom to leave the scene, and the purpose, place and length of the interrogation. See United States v. Griffin, supra at 1349. The most comprehensive list of factors — although admittedly not exhaustive — was enumerated, as follows, in United States v. Griffin, supra at 1349:

[The] inquiry into the indicia of custody has generally focused on an examination of (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or (6) whether the suspect was placed under arrest at the termination of the questioning.

The Court has regarded the first three of the Griffin factors as mitigative in their effect upon the ultimate determination, for the presence, during questioning, of one or more of those factors would tend to weigh against a finding of custody. On the other hand, the remaining three factors have been characterized as coercive in their effect, since those factors would tend to accentuate the existence of custody. A "finding of custody does not, however, have to be supported by all six factors." United States v. Galceran, 301 F.3d 927, 930 (8th Cir. 2002), citing United States v. Griffin, supra at 1349; see also, United States v. McKinney, 88 F.3d 551, 554 (8th Cir. 1996).

Whether or not Miranda is implicated, the Supreme Court has recognized that, in order for a confession to be admitted into evidence, it must be voluntary if it is to satisfy the Fifth Amendment's right against self-incrimination. See, Dickerson v. United States, 530 U.S. 428, 433-34 (2000), citing Bram v. United States, 168 U.S. 532, 542 (1897) (stating that the voluntariness test "is controlled by that portion of the Fifth Amendment * * * commanding that no person `shall be compelled in any criminal case to be a witness against himself'"); Brown v. Mississippi, 297 U.S. 278 (1936) (reversing a criminal conviction under the Due Process Clause because it was based upon a confession obtained by physical coercion). For a confession to be considered voluntary, a Court must examine "`whether a defendant's will was overborne' by the circumstances surrounding the giving of a confession." Dickerson v. United States, supra at 434, citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

As the Supreme Court has recently explained:

The due process test takes into consideration "the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation." Schneckloth v. Bustamonte, 412 U.S. at 226; See also, Haynes v. Washington, 373 U.S. 503 (1963); Gallegos v. Colorado, 370 U.S. 49, 55 (1962); Reck v. Pate, 367 U.S. 433, 440 (1961) ("[A]11 the circumstances attendant upon the confession must be taken into account"); Maiinski v. New York, 324 U.S. 401, 404 (1945) ("If all the attendant circumstances indicate that the confession was coerced or compelled, it may not be used to convict a defendant"). The determination "depend[s] upon a weighing of the circumstances of pressure against the power of resistance of the person confessing." Stein v. New York, 346 U.S. 156, 185 (1953).

Id. at 434.

Among the circumstances, which are to be considered in this analysis are, first and foremost, whether a Miranda warning has been given, see,Withrow v. Williams, 507 U.S. 680, 693 (1993); any elements of "police coercion," see, Colorado v. Connelly, supra at 167; the length of the interrogation, see, Ashcraft v. Tennessee, 322 U.S. 143, 153-154 (1944); the location of the interrogation, see, Reck v. Pate, 367 U.S. 433, 441 (1961); the continuous nature of the interrogation, see, Levra v. Denno, 347 U.S. 556, 561 (1954); the defendant's maturity, see, Haley v. Ohio, 332 U.S. 596, 599-601 (1948); education, see, Clewis v. Texas, 386 U.S. 707, 712 (1967); physical condition, see, Greenwald v. Wisconsin, 390 U.S. 519, 520-521 (1968); and mental health, see, Fikes v. Alabama, 352 U.S. 191, 196 (1957); see also, Withrow v. Williams, supra at 693 (listing the applicable considerations).

2. Legal Analysis. Since they involve different considerations, we address each of the Defendants' Motions to Suppress Statements separately, commencing with the Motion of Evangelist.

a. Evangelist's Motion to Suppress Statements Made on January 24, 2001.

Evangelist seeks to suppress the statements he made to Thompson, Boylan, and Bisswurm, on January 24, 2001, and the evidence derived from those statements. Evangelist asserts that the statements, that he provided to the FBI Agents, were the product of an unlawful arrest. Evangelist further contends that any purported consent, that the Government suggests he gave to his participation in the interrogation, was extracted under duress, as Thompson, and Boylan, invaded the sanctity of his home, without his consent, thereby destroying the possibility of a voluntary willingness to speak to them. Evangelist also urges that, once the Agents were inside his home, he was not free to leave and, therefore, he was effectively under arrest.

Evangelist also contends that, assuming that he was in custody, he was never read his Miranda rights, and his Due Process rights were violated by the coercive nature of the FBI's interrogation. see, Miranda v. Arizona, 384 U.S. 436 (1966). We consider each of Evangelist's objections, commencing with his assertion that the Boylan, and Thompson, unlawfully gained entry to his home.

i. The Entry into Evangelist's Home. At the outset, we address Evangelist's argument that his statements were the product of a Fourth Amendment violation, and thus, that any consent, which he purported to give as to law enforcement's entry into his home, was ineffectual. Evangelist argues that Boylan entered the curtilage of his home when he approached Evangelist in his garage, without Evangelist's consent, and that a mere showing of Evangelist's acquiescence in Boylan's entry is insufficient for a finding of knowing and voluntary consent to participate in the interrogations which followed, or for the allowance of Thompson and Boylan into his home. Evangelist contends that Boylan was, in effect, already in his home, once he entered the garage and, as a result, that any evidence recovered, following that purported illegal entry, must be suppressed.

Unquestionably, Fourth Amendment protections extend to the curtilage of a home, see, United States v. Raines, 243 F.3d 419, 421 (8th Cir. 2001), citing Oliver v. United States, 466 U.S. 170, 180 (1984), and a garage is within that curtilage. see, Drummond v. United States, 350 F.2d 983, 989 (8th Cir. 1965), citing Taylor v. United States, 286 U.S. 1, 5-6 (1932); see also, United States v. Oaxaca, 233 F.3d 1154, 1157 (9th Cir. 2000);Dauqhenbaugh v. City of Tiffin, 150 F.3d 594, 600 (6th Cir. 1998); Care v. United States, 231 F.2d 22, 25 (10th Cir. 1956); Martin v. United States, 183 F.2d 436, 439 (4th Cir. 1950). Moreover, "[e]vidence recovered following an illegal entry of the home is inadmissible and must be suppressed." United States v. Shaibu, 920 F.3d 1423, 1425 (9th Cir. 1990), citing Wong Sun v. United States, 371 U.S. 471, 484-87 (1963). "Verbal statements obtained as a result of a Fourth Amendment violation are as much subject to the exclusionary rule as are items of physical evidence discovered during an illegal search." United States v. Yousif, 308 F.3d 820, 832 (8th Cir. 2002), citing Wong Sun v. United States, supra at 485.

Here, there is no doubt that Boylan entered Evangelist's garage, by crossing its threshold and, when Boylan did so, Evangelist had not consented to Boylan's entry. Indeed, it is most likely that Evangelist was not even aware of Boylan's approach, since he had activated the garage door's closing mechanism, which Boylan interrupted when he crossed the sensor, thereby preventing the garage door from closing. Boylan testified that Evangelist was still in the process of getting out of his vehicle when he approached Evangelist's car, introduced himself as an FBI Agent, and displayed his credentials. The effort to close the garage door makes it apparent that Evangelist had not consented to Boylan's entry into the garage. There is no suggestion, however, let alone evidence, that Evangelist intentionally closed the door in order to thwart the Agents' entry. Thus, the question devolves to whether the Agents uninvited entry into the curtilage of Evangelist's home — namely, his garage — was an unreasonable intrusion into his expectation of privacy and, if so, whether such intrusion destroyed the voluntariness of Evangelist's subsequent consent to allow the Agents into his home, and to make subsequent statements to the Agents.

The closest case in point, as revealed by our research, is not a Federal case, but one arising in the State Courts of Minnesota. In Tracht v. Comm'r. of Public Safety, 592 N.W.2d 863 (Minn.App. 1999), rev. denied (Minn., July 28, 1999), the Minnesota Court of Appeals held that an entry, by police officers, into a garage for the purpose of knocking on a service door which connected the garage to the defendant's house, and not for the purpose of searching for evidence of a crime, did not violate the protections of the Fourth Amendment. Id. at 865. The Court reasoned that, in such instances, the officers' entry into the garage was indistinguishable from what occurs when officers step upon a porch in order to knock on the door to a house. Id. The porch of a house, the same as an attached garage, is within the curtilage of a home. Of course,Tracht is distinguishable in one important particular for, here, Boylan's affirmative act of stepping into the threshold of the garage door, prevented the door from fully closing.

Other Courts have held conversely. In State v. Dyreson, 104 Wash.App. 703, 17 P.3d 668 (Wash.App. 2001), the Court concluded that "an open garage does not impliedly open the curtilage to a reasonably respectful citizen" or, "[i]n other words, no reasonably respectful citizen would feel free to enter the garage without the owner's consent." Id. at 711, 673. There, the Court held that, when a police detective crossed the threshold of the garage, he intruded into a place where the garage owner had a reasonable expectation of privacy. Id. Unlike the circumstances here, however, the Dyreson Court was considering a Motion to exclude physical evidence that had been seized, from within the garage, when the officers entered that structure without the defendant's knowledge or consent.

While neither case is wholly apposite, we are persuaded that the result, which was reached in Tract, is most consistent with the law of this Circuit. We do not minimize the intrusion of Boylan into the interior of Evangelist's garage, but we must appraise that intrusion in light of all of the circumstances. Here, unlike the circumstances inDyreson, no evidence was seized from the interior of Evangelist's garage, and Boylan's approach of Evangelist was simply to initiate a. contact which, if initiated on Evangelist's front door step, or within a fenced yard, would not have been particularly extraordinary. Contrary to Evangelist's view, he was not arrested in his garage by the FBI Agents, but was simply asked whether he would speak with them. Notably, in response, Evangelist did not question the Agents' presence, did not ask them to leave, nor did he refuse to speak with them further. Plainly, the Agents' entry into Evangelist's garage was more intrusive than a knock on the front door, but the intrusion was not sufficient to constitute an unreasonable search.

For his part, Evangelist relies heavily upon the decision of the Court of Appeals for the Ninth Circuit, in United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1990), which he cites for the proposition that "[j]udicial concern to protect the sanctity of the home is so elevated that free and voluntary consent cannot be found by a showing of mere acquiescence to a claim of lawful authority." There, police officers went to an apartment building, without a warrant, in search of a suspect. Id. at 1424. After gaining access to a common hallway in the apartment complex, the officer's encountered the defendant, who was not the subject of the officers' search. One of the officers identified himself as a police officer, and asked the defendant if the suspect was in the defendant's apartment. Without saying anything, and without the police asking for permission to enter his apartment, the defendant retreated into his apartment, and the police officers followed. The defendant subsequently gave the police consent to search his home, but the Court held that the officers only had implied consent to enter the defendant's home, and the evidence seized in the search was suppressed.Id. at 1427-28. As has the Court of Appeals for the Second Circuit, we find that the ruling, in Shaibu, contradicts the Supreme Court's holdings in Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) ( Fourth Amendment does not prohibit all searches, but only those which are unreasonable),Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990) (" [I]n order to satisfy the `reasonableness' requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government * * * is not that they always be correct, but that they always be reasonable."), and Florida v. Jimeno, 500 U.S. 248, 249 (1990) ("The Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect's consent permitted him to [conduct the search that was undertaken]."). United States v. Garcia, 56 F.3d 418, 423 (2nd Cir. 1995).

After the initial contact with Evangelist, the FBI Agents were not commanded, nor escorted, out of his garage but, in fact, Evangelist invited them into the privacy of his home, where the Agents remained, without expressed objection, for hours. From an objective viewpoint, the testimony of Boylan, and Thompson, reflect that they had a reasonable basis to believe that their entry into Evangelist's garage was unobjectionable, and that they were being invited into his home. see, United States v. Shabazz, 883 F. Supp. 422, 426 (D. Minn. 1995) ("`An invitation or consent to enter a house may be implied as well as expressed,'" and "[t]he opening of a door can constitute the implied invitation to enter."), quoting United States v. Turbyfill, 525 F.2d 57, 59 (8th Cir. 1975); United States v. Wagner, 884 F.2d 1090, 1094 and n. 3, (8th Cir. 1989), cert. denied, 494 U.S. 1088 (1990); see also, United States v. Phelps, 168 F.3d 1048, 1057 (8th Cir. 1999) (test of "objective reasonableness" is "what would the typical reasonable person have understood by the exchange between the officer and the suspect."), quoting United States v. Sanchez, supra at 1994, quoting, in turn,Florida v. Jimeno, supra at 251.

Therefore, we find that Agents' presence in Evangelist's garage did not destroy the voluntariness of Evangelist's consent to allow them to enter his home, or to interview him. We see no substantive distinction between the circumstances here, and those presented when law enforcement knocks on a suspect's door, and asks for access to question the suspect within the suspect's home. No Fourth Amendment violation is presented in such a circumstance even though the approach to the suspect's home necessarily invaded the suspect's curtilage. see, Ringer v. United States, 463 F.2d 1083, 1084 (8th Cir. 1972); United States v. Hampton, 260 F.3d 832, 835 (8th Cir. 2001) (consent to enter home reflected in defendant's opening of door to allow officers' entry).

Moreover, even if we assumed that Boylan's initial entry into Evangelist's garage was illegal, his consent to be interviewed was "`sufficiently an act of free will to purge the primary taint.'" United States v. Moreno, 280 F.3d 898, 900 (8th Cir. 2002), quoting United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994), cert. denied, 514 U.S. 1134 (1995). "In determining whether a confession retains the taint of an illegal seizure, the Supreme Court identified three factors the courts should consider: 1) the temporal proximity of the illegality and the confession; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct." Id. at 900, citingBrown v. Illinois, 422 U.S. 590 (1975).

Applying the Brown factors to all of the circumstances of Evangelist's interview, the temporal proximity weighs in favor of a finding of voluntariness. In Moreno, our Court of Appeals found that the temporal proximity, between an illegal traffic stop, and the defendant's second consent to search his vehicle — which appears to have been given while the defendant was still at the scene of the traffic stop, and presumably not free to leave — was sufficient to purge any taint of the illegal stop. Id. at 901. Here, Boylan's entry into Evangelist's garage occurred at approximately 9:30 o'clock a.m., and Evangelist signed the written statement around 3:30 o'clock p.m., some six hours later. Other statements were made later that evening at Evangelist's clinic, around 7:15 o'clock p.m., and on the days following the Agents' initial contact with Evangelist. While some oral statements were made before the written statement, those statements appear to have been substantively the same as Evangelist subscribed to in writing, or made in hours, or days, subsequent to that writing. Thus, the taint of any Fourth Amendment violation was purged by the significant passage of time.

Boylan, Thompson, and Bisswurm, all testified that Evangelist was repeatedly told that he was not under arrest, and that he did not have to speak with them. In Moreno, the Court concluded that such advices amounted to intervening circumstances to also assuage a prior taint. Id. Moreover, the interrogation of Evangelist commenced in his home, and continued, after approximately 2:30 o'clock p.m., when the Agents, and Evangelist, relocated to a public library where Evangelist signed his written statement. Later in the evening, Evangelist made further statements at the clinic in which he worked. Notably, Evangelist drove to that clinic alone, and arrived in advance of the Agents, who met him after the clinic had closed for the day. These independent, voluntary acts of Evangelist also constitute intervening circumstances which attenuate any prior taint, and support the voluntariness of his statements.

Finally, we find that Boylan's entry into Evangelist's garage was not an act of bad faith, and that the claimed Fourth Amendment violation was neither purposeful, nor flagrant. While, perhaps, the Agents should have exercised greater prudence, if not caution, by approaching Evangelist at his front door instead of in his garage, there is no showing, however slight, that Boylan thought he would uncover incriminating evidence in Evangelist's garage, or that he felt that a suspect approached in his own garage would be more likely to cooperate with the FBI than one approached at his own front door. Rather, the Agents were at Evangelist's home when Evangelist left in the morning to drop off his daughter at school, and they awaited his return and approached him immediately upon his return, which just happened to occur in his garage.

In sum, we find that Boylan's entry into Evangelist's garage did not constitute a Fourth Amendment violation, and that, under the totality of the circumstances, Evangelist's consent for the Agents to enter his home, as well as his consent to be interviewed, were acts of free will as would purge any taint, if any there had been, in Boylan's uninvited entry into Evangelist's garage. Therefore, we find no basis to suppress Evangelist's statements to law enforcement based upon any claimed violation of his Fourth Amendment rights, and we proceed to address the voluntariness of his statements to law enforcement.

ii. The Interrogation of Evangelist in His Home.

Evangelist asserts that, once the Agents were in his home, he was in custody, under the factors identified in Griffin, He also asserts that, since he was in custody, he should have been provided a Miranda warning which, concededly, the Agents failed to do. In turn, the Government maintains that Evangelist was not in custody at any time on January 24, 2001 — which is the first day on which Evangelist made the statements challenged by his Motion to Suppress, or any day thereafter until his arrest months later. There being no dispute that Evangelist was the subject of official interrogation, we need only decide whether that interrogation was custodial, and whether it was voluntary. We first address the issue of custody.

A) Custody. In deciding whether Evangelist was subject to a custodial interrogation, we must decide if the physical or psychological restraints that were placed upon him, as disclosed by the totality of the evidence, would have been understood by a reasonable person, in like position, as being consonant with a formal arrest. see, United States v. Hernandez-Hernandez, — F.3d —, 2003 WL 1903930 at *2 (8th Cir., April 21, 2003) ("To determine whether an individual is in custody, a court must examine all the circumstances surrounding an interrogation and decide whether there was `"a formal arrest or restraint on movement" of the degree associated with a formal arrest.'"), quoting Stansbury v. California, supra at 322, quoting, in turn, United States v. Beheler, supra at 1125.

As to the first Griffin factor, Evangelist was informed that he was free to tell the Agents to leave, and that he was not under arrest. In his Supplemental Memorandum in Support of Motion to Suppress Evidence, at page 5, Evangelist concedes that the Agents informed him that his participation in the questioning was voluntary, and that he could request the Agents to leave his home. Evangelist argues, however, that "the meaning of `voluntary' and `request of officers to leave' was understandably lost on Evangelist," due to the Agents entry into his garage. We have already addressed that argument in depth, and have found it to be without merit. The Agents' presence in Evangelist's home, without more, does not destroy the voluntariness of his statements, or the fact that Evangelist was told repeatedly, as Boylan, Thompson, and Bisswurm, all have testified, without contravention, that he did not have to speak to them, that the Agents would leave if asked, and that he was not under arrest.²⁸ Notwithstanding those repeated advices, Evangelist never asked that the questioning stop, or that the Agents leave.

28 The fact that the questioning occurred in Evangelist's own home neither adds, nor detracts, from our voluntariness finding. As our Court of Appeals has explained, "while a person may be deemed to be in custody in his own home, e.g., Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), such is not indicative of the type of inherently coercive setting that normally accompanies a custodial interrogation."United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir. 1985). However, in Griffin, the Court drew a contrary inference:

It is the accepted logic that an interrogation in familiar surroundings such as one's home softens the hard aspects of police interrogation and moderates a suspect's sense of being held in custody. Miranda [v. Arizona], 384 U.S. [436,] 450 [(1966)]. Nonetheless, it is not difficult to envision that a suspect's sense of captivity can actually be intensified by the intrusive and intimidating environment created when agents of the law take control of a persons private residence. After all, a person can not reasonably expect to be free anywhere if not within the refuge of his home.

United States v. Griffin, 922 F.2d 1343, 1355 n. 15 (8th Cir. 1990). For the purposes of our analysis, we consider the location of Evangelist's interview to be neutral in the voluntariness equation except to note that, "[w]hen a suspect is interrogated in the comfort and familiarity of his home, a court is less likely to find the circumstances custodial."United States v. Axsom, 289 F.3d 496, 502 (8th Cir. 2C02).

Second, Evangelist possessed nearly unrestrained freedom of movement during his questioning. Evangelist contends, however, that he "was accompanied virtually everywhere he went in his own home, outside, inside, and downstairs," and that, when he went out onto his deck, he was still visible to Boylan and Thompson. Id. The Agents testified that Thompson escorted Evangelist to the area of his garage when Evangelist let. the dog out into the garage, and also accompanied him to the bathroom, due to officer safety concerns — concerns which were expressly explained to Evangelist. [T. Vol. I, 55]. Thompson testified that he escorted Evangelist to the bathroom, looked inside quickly for weapons, but did not proceed into the bathroom with Evangelist. Escorting suspects for reasons unrelated to custody — a concern for officer safety, for example — is not a restraint on the suspect's freedom of movement. see, United States v. Griffin, supra at 1350-51 ("Though it is often the case that suspects are escorted or chaperoned during questioning for reasons unrelated to custody, as in this case where [the] Agent testified that he was concerned for the safety of himself and his partner").

Moreover, Evangelist answered the telephone when employees from his clinic called and, on one occasion, he went into the adjacent kitchen to clean a coffee pot. These are actions that are not typically associated with being in custody. Evangelist was never told that he could not move about his home freely, was never physically restrained, nor was he required to remain in one location within his home. Upon Evangelist's expression of concern, that his wife and daughter would soon be arriving at the home, the officer's accommodated that concern and followed his suggestion that they relocate their discussion to a nearby public library. Evangelist drove to the library in his own car, although Boylan rode with him — with Evangelist's consent — because Evangelist was the only one who knew the location of the library. Further, several hours after leaving the Agents at the library, Evangelist voluntarily proceeded to his clinic, traveling alone, where the Agents later met him. In addition, Evangelist met with the Agents, once again, on the next morning, at a Burger King. This freedom of movement is not of an ilk that would be consistent with a formal arrest.

Third, although Boylan and Thompson initiated the contact with Evangelist, Evangelist voluntarily acquiesced to the Agents' requests that he respond to their questions. Evangelist was fully cooperative with the Agents. As noted, he suggested that they leave his home, for reasons personal to him, and resume the interrogation at the public library, where he freely signed a written statement. The testimony of Boylan, Thompson, and Bisswurm, established that they repeatedly told Evangelist that he did not have to cooperate, and that he was free to leave. Significantly, Evangelist was not reliant upon the Agents for transportation, from the library, the clinic, or Burger King, as he drove himself to those locations. As we have related, Evangelist met with the Agents at his clinic, at approximately 7:00 o'clock p.m. — that is, over three hours after his last contact with the Agents. Moreover, Evangelist never informed the Agents that he no longer wished to speak with them, or that he wanted to speak with an attorney.

As for the aggravating factors, Evangelist first argues that the Agents employed strong arm tactics during the interrogation, suggesting that they were intimately familiar with his personal life, that they spoke of the risks of non-cooperation, and made suggestively coercive comments, concerning the public arrest of non-cooperating witnesses, the alleged widespread nature of the criminal activity involved, and the loss of employment. The Record, however, is void of any testimony that supports Evangelist's accusations. The Agents testified, and Evangelist concedes, that the Agents never raised their voices, made any threats, or displayed their weapons, during the course of his discussions with them. Rather, Boylan testified that the dialogue of the interrogation was very similar to the testimony he gave during the Hearing upon direct examination by the Government. Further, there is nothing in the Record suggesting that the Agents were deceptive, or that the interrogation was hostile.²⁹ Accordingly, we find that the Agents' tactics do not weigh against a finding that the interrogation was non-custodial.

29 We recognize that the Agents suggested to Evangelist that their meeting would not extend for a long period of time, but would be brief, but we find little in the way of deception in that respect when Evangelist could have terminated the meeting at any time he chose.

Evangelist also contends that the fifth Griffin factor, police dominance of the interrogation, was an applicable aggravating factor which warrants a finding that Evangelist was in custody at the time that his statements were made to the Agents. Evangelist contends that the Agents assumed control over his home. However, in United States v. Axsom, 289 F.3d 496, 502 (8th Cir. 2002), nine agents of the Customs Service executed a Search Warrant in the defendant's small home, but only two of the agents conducted the interview. When the defendant got up to get a glass of water, one of the agents told him to stop, and had another agent bring the glass of water to the defendant. In addition, an agent escorted the defendant to a bedroom, and a bathroom, yet our Court of Appeals was not persuaded that the totality of the circumstances constituted a police dominated environment. Here, for most of the interrogation, only Boylan and Thompson were present, and Bisswurm only arrived shortly before the Agents, and Evangelist, left to go to the library. Given Evangelist's freedom of movement, his interest in relocating the interview to other locations outside of his home, and his willingness to travel to those locations in order that the interview could continue, weigh heavily against a finding that any of the referenced locations were police dominated. Therefore, we also cannot find the presence of the fifth indicium listed in Griffin.

Finally, the third aggravating factor — whether the suspect was arrested at the conclusion of the interrogation — is also not present. Evangelist was not arrested until over a year after his interviews with the Agents. Thus, having reviewed the six indicia outlined in Griffin, we find all of the mitigating factors to support a noncustodial finding, which is not undermined by any of the aggravating factors. Accordingly, we find that Evangelist was not in custody during any aspect of the Agents' interrogation of him, and that, therefore, the agents were not obligated to afford him a Miranda warnings, in order to comply with the strictures of the Fifth Amendment.³⁰

30 Evangelist testified, at some length, as to his subjective feeling that he was in custody, and incapable of asking the Agents to leave his home. Generally, we found Evangelist to be a credible witness and, indeed, his testimony on the objective factors, which govern our review, was not inconsistent in any material way with that of the Agents. Evangelist's subjective feelings, however, are not controlling. He is a health care professional, and an experienced businessman, who plainly understands the meaning of the English language. He was afforded the opportunity to refuse to speak with the Agents, and he declined to do so.

B) Voluntariness. We must also determine, consistent with the requisites of the Fifth Amendment, whether the statements given by Evangelist were voluntary, or whether they were the product of an overborne will.

Evangelist, quoting a vacated opinion of our Court of Appeals, argues that, "`when viewed as a whole, it appears that the entire atmosphere of the interrogation was police-dominated, highly coercive, and designed to elicit a confession in any way possible.'" Supplemental Memorandum in Support of Motion to Suppress Evidence, at 10, quoting United States v. LeBrun, 306 F.3d 545, 556 (8th Cir. 2002), r'hrg granted and opinion vacated (8th Cir., December 31, 2002). He fails, however, to support his bald assertion with any specific, and evidence-based instances of coercion. As we have detailed, Evangelist's interview was not police dominated and was the product of his election to cooperate with law enforcement. Evangelist does not contend that the length of the interrogation was unduly burdensome, that he was denied any of the accommodations of living, or that the agents duped him into lending his cooperation to their investigation. He does not suggest, let alone support, the existence of any physical or mental impairments which impact upon the voluntariness analysis, nor urge any age-related naivety which would reflect a less than voluntary choice, on his part, to answer law enforcement's questions.

Nor was the interrogation unduly long. The initial component of the interrogation was approximately six hours in duration, which is not an unreasonably lengthy period of time. see, Sumpter v. Nix, 863 F.2d 563, 565 (8th Cir. 1988) (finding that a seven and one half hour interrogation did not make the defendant's statements involuntary). Accordingly, we find that Evangelist's will was not over-borne and, therefore, we recommend that the Motion of Evangelist to Suppress the Statements that he made to the FBI be denied in its entirety, and we further recommend that Evangelist's Motion to Suppress the physical evidence, which was seized as a result of his purportedly illegal arrest, be denied as he was not the victim of an unlawful arrest.

b. Czichray's Motion to Suppress His February 16, 2001 Statements to the FBI.

Czichray seeks to suppress the statements he made to Boylan, and Bisswurm, at his home on February 16, 2001, asserting that he was subjected to custodial interrogation without the benefit of a Miranda advisory. Czichray also contends that our consideration of this suppression question is controlled by the "law of the case" doctrine,³¹ which we address first.

31 Czichray does not argue that his related contention, that we are bound by the precepts of collateral estoppel, and res judicata, from doing anything other than suppressing the statements that he made to law enforcement, and, therefore, we neither consider those related doctrines, nor address them, as they have been abandoned.

i. The Law of the Case Doctrine. In a related criminal matter, in which Czichray was charged with six Counts of bank fraud, the admissibility of Czichray's statements to the FBI, on February 16, 2001, was considered. In that proceeding, in an Order Rejecting Report and Recommendation of Magistrate Judge, the District Court, the Honorable John R. Tunheim presiding, granted Czichray's Motion to Suppress those statements, which are the very same as the ones Czichray seeks to suppress here. see,United States v. Czichray, Crim. No. 01-307 (JRT/FLN), 2002 WL 54504 (D. Minn. 2002) ("Czichray I").

Under the law of the case doctrine, "`when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Kinman v. Omaha Public School Dist., 171 F.3d 607, 610 (8th Cir. 1999), quoting Morris v. American Nat'l Can Corp., 988 F.2d 50, 52 (8th Cir. 1993), quoting, in turn,Arizona v. California, 460 U.S. 605, 618 (1983)); see also, United States v. Washington, 197 F.3d 1214, 1216 (8th Cir. 1999). "The law of the case doctrine prevents the relitigation of a settled issue in a case and requires courts to adhere to decisions made in earlier proceedings in order to ensure uniformity of decisions, protect the expectations of the parties, and promote judicial economy." United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995), citing Bethea v. Levi Strauss Co., 916 F.2d 453, 456-57 (8th Cir. 1990).

"Under this doctrine, `a decision in a prior appeal is followed in later proceedings unless a party introduces substantially different evidence, or the prior decision is clearly erroneous and works a manifest injustice.'" Id., quoting United States v. Callaway, 972 F.2d 904, 905 (8th Cir. 1992); see also, United States v. Stuckey, 255 F.3d 528, 530 (8th Cir. 2001). The law of the case doctrine does not apply "`when an intervening decision from a superior tribunal clearly demonstrates the law of the case is wrong.'" Kinman v. Omaha Public School Dist., supra at 610, quoting Morris v. American Nat'l Can Corp., supra at 52; see also,Lawrence v. Armontrout, 31 F.3d 662 (8th Cir. 1994).

"Historically, federal courts considered the law of the case doctrine to be jurisdictional in nature." Liberty Mut. Ins. Co. v. Elgin Warehouse and Equipment, 4 F.3d 567, 571 (8th Cir. 1993). "Currently, the doctrine has been recast as one of discretionary restraint." Id.; see also,Arizona v. California, supra at 618 ("Law of the case directs a court's discretion, it does not limit the tribunal's power"); Conrod v. Davis, 120 F.3d 92, 95 (8th Cir. 1997) ("The doctrine of the `law of the case' is a discretionary tool permitting a district court to effectively manage the legal issues arising during litigation"); United States v. Callaway, supra at 906; Bethea v. Levi Strauss and Co., supra at 457; Tischmann v. ITT/Sheraton Corp., 145 F.3d 561, 564 (2nd Cir. 1998) ("[T]he law of the case doctrine is, at best, a discretionary doctrine, which does not constitute a limitation on the court's power but merely expresses a general reluctance, absent good cause, to reopen rulings that the parties have relied upon"); State v, Hale, 317 A.2d 731, 734.(N.J. App. 1974) ("The distinction between the doctrine of `law of the case' and Res judicata is readily apparent: one directs discretion: the other supersedes it and compels judgment.").

While we have more than grave doubt that the law of the case doctrine applies here, particularly when the earlier legal proceeding has yet to reach a final Judgment, even if we found the doctrine to apply, we would render our factual findings on the Record presented to us, in order to assure the completeness of this Record. Should the District Court, acting upon discretion or upon its reading of the applicable law, consider the doctrine to preclude different factual findings than those issued in the prior proceeding, then nothing is lost by our independent factual findings predicated on the Record presented here. If, however, discretion or the applicable law, would not properly allow the invocation of the doctrine here, then we would be obligated to render the findings we now proceed to, consistent with the Record in this separate criminal proceeding.³²

32 Most commonly applied, the law of the case doctrine assures that, when a superior Court affirms certain rulings of the Trial Court, but reverses others, the parties are not permitted in the Trial Court to relitigate the affirmed issues. With the passage of time, however, the doctrine appears to have become, perhaps, unworkably amorphous. Accordingly, while the Government suggests that the law of the case doctrine only applies to appellate decisions, it is unclear that the doctrine's scope is so limited. See, e.g., United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) ("`[A] court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court,'" quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993), cert. denied, 508 U.S. 951 (1993); see also, Washington Nat. Life Ins. Co. of New York v. Morgan Stanley Co. Inc., 974 F. Supp. 214, 218 (S.D.N.Y. 1997) ("`Federal courts routinely apply law-of-the-case principles to transfer decisions of coordinate courts" and, "[i]ndeed, the policies supporting the doctrine apply with even greater force to transfer decisions than to decisions of substantive law; transferee courts that feel entirely free to revisit transfer decisions of a coordinate court threaten to send litigants into a vicious circle of litigation.'"), quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988); Casey v. Planned Parenthood of Southeastern Pennsylvania, 14 F.3d 848, 856 (3rd Cir. 1994) ("Other law of the case rules apply to subsequent rulings by the same judge in the same case or a closely related one, to rulings by different judges at the same level, or to the consequences of the failure to preserve an issue for appeal."), citing Charles A. Wright et al., 18 Federal Rules and Procedure § 4478 (1981); State v. Hale, 317 A.2d 731, 734 (N.J.App. 1974) ("`Law of the case most commonly applies to the binding nature of appellate decisions upon a trial court," * * * and "[t]he doctrine of `law of the case' is also applied to the question of whether or not a decision made by a trial court during one stage of the litigation is binding through-out the course of the action."), citing 5 Am.Jur.2d, Appeal and Error, § 744, at 188-89 (1962).
The Government also urges that the District Court's decision inCzichrav I is not the law of this case, and quotes the Supreme Court's opinion, in Arizona v. California, supra, for the proposition that, "`when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" SeeUnited States Response to Motion to Suppress Confessions or Statements in the Nature of Confessions, at p. 2 [emphasis in original], quotingArizona v. California, supra at 618. However, other, lower Courts, have held that the "law of the case rules apply to subsequent rulings by the same judge in the same case or a closely related one." Casey v. Planned Parenthood of Southeastern Pennsylvania, supra at 856 [emphasis supplied], citing Charles A. Wright et al., 18 Federal Rules and Procedure § 4478 (1981); see also, Jersey Dental Laboratories v. Dentsply Intern., Inc., 2002 WL 2007916 at *1 (D. Del., August 27, 2002) ("[T]he court will refrain from redeciding issues that were resolved earlier in the closely related litigation"); but see, State v. Hale, 317 A.2d 731, 734 (N.J.App. 1974) (refusing to apply the law of the case doctrine, in a second Trial, to a decision to suppress confessions in a prior Trial that resulted in a mistrial); In re Monosodium Glutamate Antitrust Litia., 2003 WL 297287 at *2 (D. Minn., February 6, 2003) (declining to apply the doctrine to a Special Master's decision on the same issue, in the same case, because the Special Master's decision was made in a different procedural posture).

Our issuance of factual findings is also counseled by the development of the law since the time that the ruling, in the earlier proceeding, was rendered. We do not suggest that any particular decision has produced a "sea change" in the parameters which determine whether interrogation is custodial, or not, but the law which governs such matters has developed further, including the guidance that is provided in United States v. Axsom, supra, and United States v. Santos-Garcia, 313 F.3d 1073, 1079 (8th Cir. 2002), to name but two decisions that were not available at the time of the earlier ruling in Czichray I. Our rendering of factual findings on this Record, however, should not be viewed as registering any disagreement with the rulings in the prior proceeding, for we had no involvement there, and are not well-positioned to express any agreement, or disagreement, as to a Record that we have not thoroughly reviewed.³³ Accordingly, we proceed to the merits of Czichray's Motion to Suppress, based upon the Record before us in this proceeding.

33 We make plain that we have reviewed the 130 pages of testimony inCzichrav I, as augmented by the 702 pages of testimony amassed in this proceeding. We have found little contradiction in the Record and, notwithstanding an opportunity to do so, the Defendants did not, in our judgment, impeach the Agents' testimony here, based on their testimony inCzichrav I, In the earlier proceeding, the District Court characterized the suppression question as "a very close issue." Government Exhibit 5, at 11. We are not privy, however, to all of the Exhibits in the earlier proceeding, nor of the arguments presented to both the Magistrate Judge, or the District Court, there. As a result, we are unable to fully assess the circumstances at play in Czichray I, and can only relate our firm conviction that, on this Record, the suppression issue, as to Czichray, is not a close one.

ii. The Interrogation of Czichray at His Home.

Czichray argues that, when he made the statements to the FBI, on February 16, 2001, he was in custody, without the benefit of a Miranda warning, and that his statements were coerced. Our analysis commences with the custody question.

A) Custody. To support his contention, that his statements should be suppressed, Czichray principally relies upon the Court's decision inCzichray I, a decision that carries substantial importance.³⁴ We are obligated, however, to make our recommendations on the current state of the law, and on the facts as presented by the competent and credible evidence, which compels a different ruling, in our view, than was reached in Czichrav I.

34 "Ordinarily, judges of coordinate jurisdiction will defer to another's interlocutory ruling." Hill v. City of Pontotoc, Miss., 993 F.2d 422, 424 (5th Cir. 1993), citing 18 Charles A. Wright, et al.,Federal Practice Procedure § 4478 (1981). "The rule is deference not obedience." Id. Although the Court's decision in Czichrav I is not accurately defined as an interlocutory ruling in this matter, we extend deference to that ruling.

As to the first Griffin factor — that is, the advice given Czichray by the Agents — the Court in Czichray I found that, although the Agents "repeatedly told Czichray that he was free to refuse the interview, and that he could tell them to leave at any time," id. at *3, the Agents "followed up such advice with the warning that if he did not cooperate, he would suffer harm." Id. In the words of the Court, "[i]n particular, the agents threatened to involve Czichray's father in the investigation, and threatened to interfere with legitimate insurance payments to Czichray's business." Id. The Court also found that the Agents "directed Czichray to call in sick, and told him not to alert his office that he was being questioned by the FBI." Id.

In their testimony before this Court, both Boylan, and Bisswurm, testified that Czichray was told, at least eight times during the six hour interview, that he could refuse to talk, and that he could tell the Agents to leave. [T. Vol. II, 51, 54, 60]. Given this evidence, which is not controverted, we find that the first Griffin factor is present and, as related by the Court in Czichray I, we address the tactics, which were employed by the Agents, as they relate to the other, pertinent Griffin factors.

Next, we find, on the Record presented, that Czichray's freedom of movement was unrestrained. Again, viewing the evidence presented in this case, we are unable to find that the Agents "instructed" Czichray to call in sick, Czichray I, at *4, that the Agents "prevented" Czichray from using the bathroom unaccompanied, or "directed" Czichray not to answer the phone, as we find, on this Record, that the Agents suggested, to Czichray, that he call in sick, that he not tell anyone he was speaking with the FBI, and that, if he were to cooperate with the FBI, the Agents would have to assure that the bathroom, which Czichray wanted to visit, did not present issues of officer safety, and did not contain a telephone.

As we have observed, there are various purposes served by the escort of suspects, during an interview in the suspect's home. See United States v. Griffin, supra at 1350-51. Here, quite plainly, officer safety was one of the stated concerns for the Agent who accompanyied Czichray to the bathroom. According to the Record before us, when Czichray asked to use the bathroom, Boylan inquired whether "he would mind if I'd take a look and if he had any telephones in there," as "one of the reasons he was asked if he's got any telephones in there is if he's going to cooperate I want to make sure that he knows that if he calls somebody else and says the FBI is out here it's going to be difficult from him to cooperate because everybody will know and that will limit his cooperation," and "[s]o I asked him if he had any telephones back there. [T. Vol. II, 65-66].

Thus, the stated purpose for following Czichray around his home was officer safety, as well as to monitor Czichray's access to any means by which he might communicate with anyone other than the Agents. In contrast, we have already noted that, as to Evangelist, Thompson testified that, when Evangelist asked to use the bathroom, Thompson asked him if he "could escort him to that portion of his house just for the purposes of officer safety, to make sure that there were no weapons available." [T. Vol. I, 55]. Not only is it significant that the Agents had somewhat different purposes in mind, it is equally significant that those divergent purposes were communicated to Evangelist, and to Czichray, respectively.

The fact that escorting Czichray was not solely for the purpose of officer safety does not render the escort improper, or unduly constraining. Here, the purpose that was communicated to Czichray for the Agents' desire to escort him to another area of his home, was to ensure their safety and the integrity of their investigative efforts, as they did not want Czichray to communicate, to others, that he was being investigated, which could have undermined their efforts to obtain his cooperation, or could have prompted the destruction of relevant evidence. Such a concern is an understandable, and permissible purpose, for escorting a suspect in his home, and is does not counsel a finding of custody. See United States v. Axsom, supra at 503 (stating that "the agents escorted [the defendant] not to restrict his movement, but to protect themselves and the integrity of the search," which was being conducted in the defendant's home)[emphasis supplied].

Moreover, Czichray was allowed to leave his seat in order to obtain a drink in his kitchen, the Agents never told him that he could not move about and, although he was escorted, Czichray moved wherever he wanted throughout his home, and was left alone after a scan of the room was performed. Cf., United States v. Axsom, supra at 501 (finding some evidence of restraint because the defendant was unable to get a drink of water).³⁵ Accordingly, we find that Czichray's freedom of movement, as established in this Record, was not reflective of being held in a state of arrest.

35 We note that, in United States v. Axsom, 298 F.3d 496, 501-503 (8th Cir. 2002), the Court accepted the District Court's finding, that Griffin's restraint factor demonstrated a limitation on the defendant's freedom of movement, based upon the fact that the defendant was denied an opportunity to get a drink from his kitchen, as the Court noted that the defendant "was not handcuffed, nor was he confined to one room," that the defendant "moved throughout his residence," "[h]e secured his dogs outside, he entered his bedroom to obtain clothing, he sat in the living room, and he used his bathroom.'" There, the defendant was also escorted to other rooms of his home. Id. Thus, the absence of freedom of movement appears to be uniquely pinioned on the agents' denial, in that case, of the defendant's attempt to obtain a glass of water.

Third, the Agents clearly initiated the contact with Czichray but, under this prong of the Griffin test, we are also required to determine if Czichray acquiesced in the Agents' requests to answer questions. see,United States v. Axsom, supra at 501 ("In considering the third mitigating factor, the district court correctly found that [the defendant] did not initiate or arrange for the questioning," but "the court failed to analyze the disjunctive prong of the third mitigating factor — whether the defendant voluntarily acquiesced to requests by federal agents to answer questions'"). Not having the benefit ofAxsom, the disjunctive prong of the third mitigating factor was not addressed in Czichrav I, See Czichrav I, supra at *4.

Although the Agents initiated the contact, Czichray went to the door, after the Agents telephoned to tell him to come to the door, and Czichray was waiting for them, even though they had not previously identified themselves as FBI Agents. Given their undisclosed identities, Czichray can not persuasively suggest that he was duped into opening the door for the Agents. see, United States v. Shabazz, supra at 427 ("Even if agents employ a false identity — and here their identity was wholly undefined — voluntary admission permits an agent to enter private premises."). The Agents then displayed their credentials, and Czichray opened the door, allowing the Agents to enter his home. Czichray then spoke with the Agents for approximately six hours. We further note that, just days before the interview, the clinics in which Czichray was involved were subjects of Federal Search Warrants — he could not have believed that the discussions would involve benign palaver.

The fact that Czichray spoke with the Agents, and then signed a written statement, while suggestive of acquiescence, does not, however, control our determination, for, unlike the interrogation of Evangelist, Czichray never agreed to continue the interview elsewhere. In United States v. Axsom, supra at 502, the Court found that the defendant had acquiesced when he testified that he would have answered any questions, that were posed by the interrogating agents, because he believed it was in his own best interest to do so. There, the Court also noted that the defendant later telephoned the agents' office, leaving a message commending the FBI for their professionalism. Id. Here, Czichray's conduct does not suggest the level of acquiescence displayed by the defendant in Axsom, or by Evangelist. Further, Boylan, in characterizing Czichray's demeanor, testified that, "[a]t some point you could tell that, you know, after he's made his admissions he's feeling bad about it." [T. Vol. II, 74]. While Czichray was not the enthusiastic participant in the interview, that either the defendant in Axsom, or Evangelist was, he also made no attempt to terminate the interview directly or indirectly. He allowed, for reasons known to him alone, the interview to proceed to its closing.

As to the first aggravating factor, we find that the Agents did not employ strong arms tactics. Czichray argues that the Agents told him that they would "light up his life," which he claims to mean that, if he did not cooperate, then he would eventually be arrested, and the public, including his family and friends, would be informed of the charges against him. see, Defendant's [Czichray's] Memorandum in Support of his Motion to Suppress and Brady Disclosure, at 7. On an objective basis, however, we interpret the Agents' use of the phrase as a realistic, and pragmatic forewarning that, if there were no cooperation by Czichray, then the Agents' investigation could uncover information not to Czichray's liking, which could also adversely affect his personal and professional life.

Boylan testified that, in using that phrase, he meant that, regardless of what Czichray told, or refused to tell the FBI, the Agents were going to investigate Czichray's activities. Neither Czichray's subjective interpretation of the phrase, however, nor Boylan's intent in employing that language, are controlling on the objective meaning of the phrase to a reasonable person in Czichray's position. On an objective basis, the Agents were informing Czichray that he had a decision to make — whether to cooperate with them or not — and that the decision could impact upon his future. In a decision which was issued, after the pertinent ruling in Czichrav I, our Court of Appeals summarized the dimensions of appropriate, noncoercive interrogation, in a reversal of the Trial Court's grant of suppression, as follows:

The district court held that [the defendant's] confession to [law enforcement] was involuntary because it was coerced by [law enforcement's] comment that [the defendant's] children would be driving by the time he was released from prison. However, we believe that [law enforcement's] comment was "not so coercive as to deprive [the defendant] of a [his] ability to make an unconstrained decision to confess." United States v. Astello, 241 F.3d 965, 967 (8th Cir.) (internal quotation omitted), cert. denied, 533 U.S. 962, 121 S.Ct. 2621, 150 L.Ed.2d 774 (2001). To state the obvious, "interrogation of a suspect will involve some pressure because its purpose is to elicit a confession." Id. "[T]he fact that the tactics produced the intended result * * * does not make [a] confession involuntary." Id. at 968. In other words, "there is nothing inherently wrong with efforts to creat a favorable climate for confession." United States v. LeBrun, 306 F.3d 545, 555 (8th Cir. 2002) (internal quotation omitted).³⁶ "`[Q]uestioniing tactics such as a raised voice, deception, or a sympathetic attitude on the part of the interrogator will not render a confession involuntary unless the overall impact of the interrogation caused the defendant's will to be overborne.'" Astello, 241 F.3d at 967 (quoting Jenner v. Smith, 982 F.2d 329, 334 (8th Cir. 1993)). Nor will a promise of leniency, an "expressed disbelief in the statements of a suspect * * *, or lie[s] to the accused about the evidence against him" necessarily render a confession involuntary. Wilson v. Lawrence County, 260 F.3d 946, 953 (8th cir. 2001) (internal citations omitted). Rather, the coercive conduct must be "such that the defendant's will was overborne and his capacity for self-determination critically impaired." Astello, 241 F.3d at 967 (internal quotation omitted).

United States v. Santos-Garcia, supra at 1079.

36 We note, without further comment, that, in United States v. LeBrun, 306 F.3d 545, 556 (8th Cir. 2002), r'hrg granted and opinion vacated (8th Cir., December 31, 2002), the Court of Appeals had affirmed a ruling to suppress a confession on both custody, and involuntariness, grounds. A ruling on rehearing has not issued as yet.

In another somewhat different context, our Court of Appeals found nothing coercive in the questioning of a juvenile, who had requested and been denied an opportunity to speak with his mother, which used the following stratagem:

Here, the agents used a train analogy, telling [the defendant] that the train was leaving the station and those who told the truth would be on the train while those left behind at the station would be charged with the crime. They said that the train was getting crowded, and that those who were on the train would testify against him. Certainly, these statements may have influenced [the defendant's] decision to tell the truth. Having carefully read and listened to the June 19 interrogation in its entirety, however, we conclude that the statements were "not so coercive as to deprive [the defendant] of [his] ability to make an unconstrained decision to confess." United States v. Mendoza, 85 F.3d 1347, 1351 (8th Cir. 1996).

United States v. Astello, 241 F.3d 965, 967 (8th Cir. 2001), cert. denied, 533 U.S. 962 (2001).

Albeit, in Astello, the foregoing analogy was considered in the context of custodial questioning, at which the juvenile suspect was provided aMiranda warning, our obligation is to consider the totality of the circumstances, and we cannot say that the Agents employment of a "light up your life" stratagem deprived Czichray of his ability to make an uncontrained decision to cooperate and be interviewed.

Czichray further maintains that the FBI threatened his father, as well as his business. The Agents denied making any threats as to Czichray's business and, although the Agents admitted to making references to Czichray's father, they also testified that the references were only made to reflect their interest in truthful responses, as the Agents felt that Czichray's father held information that was pertinent to their investigation. There is no showing that the Agents were lying, or that they "adopt[ed] a threatening posture toward [Czichray], display[ed] their weapons, or ma[d]e a physical show of force during the questioning." United States v. Galceran, 301 F.3d 927, 932 (8th Cir. 2002), quoting United States v. Axsom, supra at 502. The mere suggestion of family disgrace, and dishonor, is insufficient, in and of itself, to reflect an overborne will. See, e.g,United States v. Astello, supra at 968. The reference to Czichray's father, and any interest that the Agents might have in questioning him, while plainly intended to induce Czichray's cooperation, was not, in our view, so heavy-handed as to vitiate our finding that Czichray acquiesced in the Agents' questioning. One can choose between alternatives, after weighing the conflicting potential consequences, without being forced to make one election over the other. Few of life's choices are totally without a "downside," and we find that Czichray made a choice, then available to him, to speak with the Agents — a choice he now firmly regrets, but not one that arises from an overborne will.³⁷

37 According to the Record before us, the FBI had information which might relate Czichray's father to possible fraudulent activity or, at least, that his father could hold information that was pertinent to the investigation. In fact, after the interview with Czichray, the FBI contacted Czichray's father. As a result, the FBI's references to Czichray's father, during the interview of Czichray, were truthful explanations of the scope of future investigation, even if, subjectively, Czichray thought they were an effort at intimidation.

Czichray also contends that the Agents "pressured" him into cooperating, and cites the Court's opinion, in Czichrav I, where the Court observed that, "[c]learly, the agents threatened and pressured Czichray to cooperate." Id. at *4. We find no competent showing, in this Record, that Czichray was pressured, by the use of strong arm tactics, to cooperate. If Czichray interpreted Boylan's remark, that the FBI would light up his life, to mean that, if he cooperated, then the FBI would not investigate further, then we find the interpretation to be objectively unreasonable. Although Czichray argues that he was pressured into cooperating, he does not expressly assert, much less demonstrate, that he was promised leniency for his cooperation. Apart from conclusory suggestion, we are presented with no promise of leniency, by the Agents, in exchange for Czichray's cooperation. Accordingly, we find no showing of strong-arm tactics, or deceptive stratagems, on the part of law enforcement.

With respect to the second aggravating factor — whether the Agents dominated the environment of the interview — no such showing has been made here. Again, Czichray relies upon that portion of Czichrav I, where the Court stated:

Although the interview was conducted in Czichray' s home, nearly every other aspect of the situation was controlled by the FBI agents. The interview lasted for seven hours, during a significant portion of which Czichray was still in his underwear. The agents dictated everything, from where Czichray could sit to the manner in which he used the restroom.

Czichrav I, supra at *4.

The Record before us reflects that the interview lasted six or seven hours, but that is not, per se, an unreasonable length of time for such purposes.³⁸ see, Sumpter v. Nix, supra at 565 (finding that a seven and one-half hour interrogation did not make the defendant's statements involuntary). The Record, here, also disclosed that Czichray was only dressed in his boxer shorts, and a tshirt, for much of the interview, but we fail to see how that circumstance constitutes police domination, unless Czichray asked to dress more fully, and that request was denied. see, United States v. Axsom, supra at 502 (finding that an interview, which was conducted, in part, while the defendant was wearing his undergarments, was not police dominated). Here, Czichray answered his door, prior to knowing that his early morning callers were FBI Agents, and he wore only his boxers and t-shirt. Then, Czichray chose to speak to the Agents, prior to changing his clothing, and when he did express a desire to change his clothing, he was allowed to dress.

38 Before us, the Agents testified that the interview was only six hours in length.

Next, the Agents testified, in this Record, that they neither told Czichray where to sit, nor did the Agents dictate the "manner in which he used the restroom." Id. They simply chaperoned him to the restroom, leaving him unattended after a brief scan of the room. To be sure the Agents outnumbered Czichray, during the questioning in his home, but only minimally. see, United States v. Axsom, supra at 502 ("While nine persons participated in the execution of the search warrant, only two agents conducted the interview."). Here, Czichray was interviewed in his home, while sitting in the relative comfort of his living room, and we find, given the totality of the circumstances, that his interview was not police dominated. Id. ("When a suspect is interrogated in the comfort and familiarity of his home, a court is less likely to find the circumstances custodial"); cf., United States v. Hanson, 237 F.3d 961, 963 (8th Cir. 2001) (finding that the interview was police dominated where the defendant was interviewed, at the police station, "in a six foot by eight foot space shut off from the rest of the office by two closed doors").

Lastly, as to the sixth factor, Czichray was not arrested at the end of his interview but, instead, his arrest occurred over a year later. Accordingly, we conclude, given these findings, that all of the mitigating, and none of the aggravating factors, as enunciated inGriffin/ warrant a determination that Czichray was in custody when questioned by the FBI in the confines of his home. He was repeatedly informed that he could stop the interview at any time, and he chose not to do so for reasons unexpressed but which, nonetheless, he found to be compelling. We find nothing presented here which, objectively assessed, commends a conclusion that he was in custody, during his interview, so as to require the provision of aMiranda warning. While, consistent with Griffin, we have examined each of the pertinent factors, we have not ignored the evidence in totality, which further supports the recommendation we make. In sum, a reasonable person in Czichray's circumstance would not have considered himself under arrest, or subject to constraints that were consistent with an arrest, at the time of his interview in his home.³⁹

39 We have reviewed Czichray's testimony, during Czichrav I, and have strong misgivings as to its credibility. While we have not had occasion to observe Czichray testify, we note that his testimony, in the previous proceedings, conflicts with the testimony of both Bisswurm, and Boylan. While, initially, we had some concern as to Boylan's forthrightness, given his penchant to parry questions put to him, we found his testimony, overall, to be credible. (T. Vol II, at pp. 84, 85, 90-91). Bisswurm impressed us, by demeanor, and by the consistency of his answers, to be credible, as well. By every appearance, the Magistrate Judge in Czichray I was not impressed by Czichray's believability, and that finding was not reversed, as least expressly, by the District Court. see, Government Exh. 5, at p. 11.

B) Voluntariness. As we have noted, even if Czichray were not in custody, his statements must be suppressed if they were not voluntarily given. For reasons we have already addressed, in considerable detail, we are not persuaded that Czichray's will was improperly overborne by the interrogating officers. To be sure, Czichray felt some degree of pressure to cooperate, but he is an adult, businessperson who, while apparently not experienced in matters of criminal justice, must still be held, by his training, and experience, to some appreciation of the plain language of the Agents, who interrogated him, and who advised him, repeatedly, that his cooperation could end at any time. Nothing has been offered to show a level of coercion consistent with an overborne will, and our findings are wholly to the contrary. Czichray does not offer evidence that he was ill, unable to comprehend the circumstances for one reason or another, or indisposed to decline the Agents' request for cooperation. Thus, we find that Czichray's statements were voluntarily made and, accordingly, we recommend that Czichray's Motion to Suppress de denied in its entirety.

c. The Motions of Pindyck, and Czichray, to Suppress the Statements they Made to State Farm.

Pindyck and Czichray seek to suppress the statements that they made to Krueger, and Bernhagen,⁴⁰ who were agents of State Farm, by arguing that Krueger failed to advise them that he was assisting the Government in its criminal investigation. As a threshold consideration, we must determine whether the Fourth, and Fifth Amendments, under which the Defendants seek to suppress their statements, applies to Krueger, a non-governmental employee.

40 Bernhagen's involvement in the investigation of the Defendants was minimal and, therefore, we only refer to Krueger in our discussion of the Defendants' Motions, but our findings apply equally to both Krueger and Bernhagen.

"The Supreme Court has expressly held that the constraints of the Fourth and Fifth Amendments do not apply to purely private activity"United States v. Garlock, 19 F.3d 441, 442 (8th Cir. 1994), citingBurdeau v. McDowell, 256 U.S. 465, 475 (1921) ( Fourth Amendment);Colorado v. Connelly, 479 U.S. 157, 166 (1986) ( Fifth Amendment); see also, United States v. Papaiohn, 212 F.3d 1112, 1122 (8th Cir. 2000)("A fundamental limitation on the fourth amendment is that is does not reach searches conducted by private actors."). The Government, however, can exercise such a degree of control over a private actor that an otherwise "private" action can be fairly attributed to the Government, for purposes of the Fourth and Fifth Amendment. Id. at 443; see also, Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 614 (1988) ("Although the Fourth Amendment does not apply to a search and seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government").

Both Krueger, and Thompson, testified that no one from the Government ever instructed, or suggested, that Krueger, or others at State Farm, interview the Defendants. Further, no law enforcement agents were present when the interviews were conducted, or even knew that the interviews were going to be conducted. The Defendants challenge the credibility of Krueger, and Thompson, and intimate that Krueger's testimony conflicted with the testimony of Thompson, in that Krueger recalled that he did not meet Thompson until after June 21, 2000, and Thompson estimated that Krueger "may have been," [T. Vol. I, 95], at a meeting, on November 16, 1999, that Thompson had with Stalogh. see,Memorandum is Support of Motion to Suppress June 21, 2000 Statement of Defendants Czichray and Pindyck, at 3.

Although the Defendants concede that Krueger's presence at the meeting is not important, and that Thompson was probably mistaken about Krueger's attendance at the meeting, id. at *3-4, they contend that the difference in recollections is probative, and that Krueger's recollection is "highly suspect," while Thompson's mistake was in good faith. We find, however, that the Defendants' assertion, that Krueger testified that he was not present at the meeting on November 16, 1999, and that he testified, conclusively, that he was certain he did not meet Thompson until after June 21, 2000, to mischaracterize the evidence. Id. Rather, when asked about the meeting on November 16, 1999, Krueger stated, "I do not remember that meeting." [T. Vol. I, 106]. Similarly, Krueger never testified, conclusively, that he did not meet Thompson until after June 21, 2000 — rather, he testified that he did not remember the date on which they met and, when asked point blank if he was certain that he had not met with Thompson prior to June 21, 2000, he stated, "I do not remember any meetings with him, no." [T. Vol. I, 109]. Whether or not Thompson met Krueger prior to Krueger's interview of the Defendants is not determinative of the question as to whether Krueger was acting as a Government agent, and we do not find the failure of Krueger, and Thompson, to recall the specific date on which they first met, was a sufficient inconsistency as to discredit their testimony. Given their demeanor, and the corroboration of their testimony, in the Record as a whole, we find both Krueger, and Thompson, to be credible witnesses.

The Defendants fail to proffer any showing that the Government controlled Krueger's investigation, and the testimony of Krueger, and Thompson, contradicts the Defendants' suspicions. The mere fact that Krueger shared information with the FBI does not establish that he acted as a Government agent, as investigators for insurance companies routinely provide law enforcement with information they uncovered in the course of their private investigations. See, e.g., United States v. Papaiohn, supra at 1122 ("We are convinced that the actions of the insurance company in this case were motivated solely by its own financial interests, and that the insurance company was not acting as an instrument or agent of the Government"). Further, Krueger testified that, if he had not been asked by the FBI for his information, he would not have provided the information to them. As a consequence, we find that neither Krueger — nor any other investigator at State Farm — was acting as an agent of the Government when Pindyck, and Czichray, made statements to State Farm and, therefore, we recommend that their Motions to Suppress be denied in this respect.

B. The Defendants' Motion to Suppress Physical Evidence.

Pindyck, Czichray, and Bruno, each challenge the legality of the Search Warrants that the FBI executed on three properties owned by three separate corporations — Ocean Management, St. Paul Spinal, and Northeast Spinal.⁴¹ Before reaching the merits of the Defendants' challenges, however, we first consider the Government's objection that the Defendants lack standing to challenge the legality of the Search Warrants.⁴²

41 Evangelist also filed a Motion to Suppress physical evidence, see, Docket No. 78, but that Motion challenged the admissibility of physical evidence that Evangelist asserted was derived from his unlawful arrest, and not from the legality of any Search Warrants. We have already found that Evangelist was not arrested and, therefore, we recommend that his Motion to Suppress physical evidence be denied.

42 We follow our Court of Appeals' approach, as explained inUnited States v. Green, 275 F.3d 694, 698 n. 3 (8th Cir. 2001):

We use the term "standing" as a shorthand reference to the issue of whether the defendants' Fourth Amendment interests were implicated by the challenged government actions. "Technically, the concept of `standing' has not had a place in Fourth Amendment jurisprudence * * * since the Supreme Court in Bakas v. Illinios, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 386 (1978), indicated that matters of standing in the context of searches and seizures actually involved substantive Fourth Amendment law." United States v. Sanchez, 943 F.2d 110, 113 n. 1 (1st Cir. 1991).

1. Standard of Review. "The Fourth Amendment to the United States Constitution provides that the Federal Government shall not violate `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'" Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 828 (2002), citing Veronia School Dist. 47J v. Action, 515 U.S.646, 651(1995). "It has long been the rule," however, "that a defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure." United States v. Padilla, 508 U.S. 77, 81 (1993)[emphasis in original]; see also, United States v. Payne, 119 F.3d 637, 641 (8th Cir. 1997); United States v. Najarian, 915 F. Supp. 1441, 1449 (D. Minn. 1995). This is so because "Fourth Amendment rights are personal and cannot be asserted vicariously." United States v. Pierson, 219 F.3d 803, 806 (8th Cir. 2000), citing United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994); see also, Rakas v. Illinois, 439 U.S. 128, 138-44 (1978).

As a consequence, "[t]he defendant moving to suppress bears the burden of proving he had a legitimate expectation of privacy that was violated by the challenged search." United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995), citing United States v. Kiser, 948 F.2d 418, 423 (8th Cir. 1991), cert. denied, 503 U.S. 983 (1992). In bearing that burden, a two-part inquiry is presented: 1) whether the defendant has asserted a subjective expectation of privacy, which is a question of fact; and 2) whether the defendant's subjective expectation is objectively reasonable, which raises a question of law. United States v. Welliver, 976 F.2d 1148, 1151 (8th Cir. 1992), cert. denied, 507 U.S. 1004 (1993); see also, United States v. Green, 275 F.3d 694, 699 (8th Cir. 2001);United States v. Dickson, 58 F.3d 1258, 1264 (8th Cir. 1995).

"`Factors relevant to the determination of standing include ownership, possession and/or control of the area searched or item seized; historical use of the property or item; ability to regulate access; the totality of the circumstances surrounding the search; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy considering the specific facts of the case.'" United States v. Pierson, 219 F.3d 803, 806 (8th Cir. 2000), quoting United States v. Gomez, supra at 256, citing United States v. Sanchez, 943 F.2d 110, 113 (1st Cir. 1991); see also, United States v. Stallinas, 28 F.3d 58, 61 (8th Cir. 1994). Generally, Courts recognize a privacy interest, in business premises, "when the area searched is set aside for the defendant's exclusive use, such as an individual office." United States v. Najarian, supra at 1452, quoting United States v. Hamdam, 891 F. Supp. 88, 91 (E.D.N.Y. 1995); see also, United States v. Fantin, 130 F. Supp.2d 385, 393 (W.D.N.Y. 2000).

In sum, "[i]f a defendant fails to prove a sufficiently close connection to the relevant places or objects searched he has no standing to claim that they were searched or seized." United States v. Gomez, supra at 256; see also, United States v. Muhammad, supra at 355.

2. Legal Analysis. The Defendants have not identified the specifics of their asserted expectations of privacy in the premises searched, or in the materials seized in those searches, notwithstanding having been given notice of the Government's "standing" objection, both in the Government's pre-Hearing response to the Defendants' Motions, and at the Hearing itself. [T. Vol. I, 24]. Obviously, in asserting Fourth Amendment challenges to the searches, the Defendants, by implication, maintain that they had an expectation of privacy in the searched premises, but the Defendants fail to provide any factual basis to support that bare assertion, other than Bruno, who maintains that he had an expectation of privacy in two of the clinics — St. Paul Spinal, and Northeast Spinal clinics — because he is the sole owner of those clinics. See Defendant Phillip J. Bruno's Memorandum of Law in Support of Pretrial Motion to Suppress Evidence, at 1. Bruno is the only Defendant who addressed the legality of the Search Warrants, in a post-Hearing Memorandum, as the other Defendants submitted post-Hearing Memoranda that were confined to their arguments for the suppression of their respective statements.

Whether one has standing in a work area "`must be addressed on a case-by-case basis.'" United States v. Najarian, supra at 1451, quoting O'Connor v. Ortega, 480 U.S. 709, 718 (1987). Accordingly, we will discuss each of the Defendants' Motions separately, commencing with the Motion filed by Bruno.

a. Bruno's Motion to Suppress Evidence.

Bruno challenges the legality of all three searches and, therefore, we address his expectation of privacy in each of the three locations.

i. Ocean Management. Bruno does not identify any specific privacy interest in Ocean Management, and it appears that he has no official affiliation with Ocean Management, which is the position taken by the Government. [T. Vol. IV, 59, 64](Thompson was asked on cross-examination by Bruno's attorney what Bruno's status was towards Ocean Management, and Thompson responded that "I don't believe he has an affiliation"). The Record is devoid of any showing that Bruno worked at Ocean Management's office, spent any time there, had a desk there, had an ability, or made any attempt to restrict access to that office in any way, or had any personal effects at that office. Rather, Thompson testified that he did not believe that Bruno worked at Ocean Management, and that the FBI did not have any information that Bruno spent any time at Ocean Management's office, had a desk there, had personal space there, or had any ability to restrict access to the office. [T. Vol. IV, 63]. Given this Record, which is uncontroverted, we find that Bruno does not have "standing" to object to the search at Ocean Management.

ii. Northeast Spinal and St. Paul Spinal. The only assertion, which has been made by Bruno, to support his claimed expectation of privacy at the Northeast Spinal, and St. Paul Spinal clinics, is that "[b]oth the government affidavit in support of the warrants, as well as the Indictment itself, allege and aver that Defendant Bruno is the sole owner of the clinics." see, Defendant Phillip J. Bruno's Memorandum of Law in Support of Pretrial Motion to Suppress Evidence, at 1. Bruno, however, stops short of explicitly claiming an ownership interest in either clinic. Id. Thompson testified, however, as to his understanding that Bruno had an ownership interest in the Northeast Spinal Clinic. [T. Vol. IV, 64]. Thus, we find that Bruno had an ownership interest in the Clinics.

However, "`[o]wnership alone is not enough to establish a reasonable and legitimate expectation of privacy.'" see, United States v. Najarian, supra at 1450 n. 5, quoting United States v. Kimball, 25 F.3d 1, 9 (1st Cir. 1994). As we expressed, in Nanarian, "such a proposition resurrects the `arcane distinctions developed in property * * * law,' which the Supreme Court laid to rest in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), and in Rawlinas v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980)." Id. quoting Rakas v. Illinois, supra at 143.

The Record is bereft of any competent showing that Bruno had a privacy interest in either clinic, but rather, merely demonstrates that Bruno had very little, if any, degree of exclusivity, and control, over either clinic, as all areas of the clinics were used by other people, and Bruno spent limited time at the clinics.⁴³ Similarly, Bruno does not assert an expectation of privacy over any of the documents, which were seized at the clinics, or at Ocean Management's office, and it is plain, on this Record, that no efforts were made to restrict access to the files. Cf., United States v. Najarian, supra at 1452-53. Moreover, the documents were, presumably, business records, and not Bruno's personal documents — at least we have no showing to the contrary. See, e.g., United States v. Bli, 147 F. Supp.2d 734, 739 (E.D. Mich. 2001); see also, United States v. John Bernard Industries, Inc., 589 F.2d 1353, 1362 (8th Cir. 1979).

43 As we observed, in United States v. Naiarian, 915 F. Supp. 1441, 1452 (D. Minn. 1995), quoting United States v. Hamdam, 891 F. Supp. 88, 94-95 (E.D.N.Y. 1995):

"[C]ourts are skeptical of standing claims when the defendant occasionally used the area searched. The greater the degree of exclusivity and control over a work area, and the more time a defendant spends there, the more likely standing is to be found.

* * *

By contrast, the less private a work area — and the less control a defendant has over that work area — the less likely standing is to be found."

Thompson testified that Bruno did not work at Northeast Spinal on a day-to-day basis, and that the only desk, at the clinic, was used by chiropractor Mark Soli ("Soli"). [T. Vol. IV, 64]. Thompson further testified that most of the documents, which were seized at Northeast Spinal, were obtained from Soli's desk, and from the area around that desk, and that the none of the documents were kept under lock and key.Id. at 65. With respect to St. Paul Spinal, Thompson testified that it was his understanding that Bruno worked there only on. a part-time basis, in the evenings. Id. He also stated that most of the documents were seized from the reception area, and from a desk which was used by Evangelist, and that none of the documents seized were kept under lock and key. Id. at 66. Lastly, Thompson testified that there were no restrictions on access to any of the files at either location. Id. Thus, in the absence of any showing by Bruno, and in light of the testimony of Thompson, we conclude that Bruno did not have exclusive control of either clinic, of any area of either clinic, or of any documents seized therein, and therefore, we find that Bruno does not have "standing" to challenge the Search Warrants executed on the St. Paul Spinal, and Northeast Spinal clinics. As a consequence, we recommend that his Motion to Suppress be denied and, absent his showing of "standing," we also deny Bruno's Motion for a Franks Hearing. see, Franks v. Delaware, 438 U.S. 154, 171 (1978).

b. Czichrav's Motion to Suppress Evidence.

As best as we can tell, Czichray claims no "standing" to challenge the Search Warrant that was executed on Ocean Management. In a letter from Czichray's attorney to the Magistrate Judge in Czichrav I, counsel advised that "Mr. Czichray d[id] not assert standing to challenge the search of Ocean Management Services, Inc." see, Government Ex. 17. Moreover, Czichray has not briefed this issue, and we find nothing in the Record which reveals that Czichray had any privacy expectation in Ocean Management's office, as he was neither an employee, nor an owner, of Ocean Management. Thus, we need only address Czichray's challenge to the Search Warrants which were executed at the St. Paul Spinal and Northeast Spinal clinics.

Given the Record submitted, we further find that Czichray has failed to establish that he had an expectation of privacy in either clinic, or in the documents that were seized from those premises. The Record is absent any showing that, when the Search Warrants were executed on the clinics in February of 2001, Czichray was spending, or had spent, any time at the clinics, let alone that he had exclusive control over any area of the clinics, as he no longer worked at either business, see, Government's Ex. 10, at 1, for, in approximately June of 2000, Czichray started working at Minnesota Institute of Neurology — MRI. Id. Even if he could demonstrate some privacy nexus 10 those clinics, the documents, which were seized, were not kept under lock and key, and there was, in fact, no restricted access to those files, as they were not Czichray's personal records, but the business records of the clinics. See, United States v. John Bernard Industries, Inc., supra at 1362 (rejecting claimed privacy interest, in part, because "the record establishes numerous employees of the supply store had ready access to the office and the records stored there."). As a result, we find that Czichray does not have "standing," under Fourth Amendment jurisprudence, to contest the seizure of the documents in question, and we recommend that his Motion to Suppress be denied.

c. Defendant Pindyck's Motion to Suppress Evidence.

Likewise, we find that Pindyck does not have "standing" to challenge the execution of the Search Warrants at the Ocean Management, St. Paul Spinal, or Northeast Spinal clinics. Pindyck has not asserted, much less established, that he had a reasonable expectation of privacy in any of the clinics, or in any of the materials which were seized at those locations. In the Superseding Indictment, the Government asserts that Pindyck was a manager, and officer, of the clinics, and of Ocean Management. see, Superseding Indictment, at 1-2. Although Pindyck does not advance the contention, we consider whether his status, as a manager, and officer, of Ocean Management, St. Paul Spinal, and Northeast Spinal clinics, affords him Fourth Amendment "standing."

"It is well-settled that a corporate officer or employee in certain circumstances may assert a reasonable expectation of privacy in his corporate office, and may have standing with respect to searches of corporate premises." United States v. Chuang, 897 F.2d 646, 649 (2nd Cir. 1990), citing Mancusi v. DeForte, 392 U.S. 364, 369 (1968); see also, United States v. Bli, supra at 739. "The question whether a corporate officer has a reasonable expectation of privacy to challenge a search of business premises focuses principally on whether he has made a sufficient showing of a possessory or proprietary interest in the area searched." Id. "Moreover, he must demonstrate a sufficient nexus between the area searched and his own work space." Id.

In Chuang, the defendant was a bank officer, and a one-half owner of the bank, who argued that, as an officer, an owner, and as one who exercised significant operational control over the bank, and all of the its premises, he had standing to dispute the legality of a search conducted at the bank. Id. at 650. In upholding the Trial Court's determination, that the defendant lacked standing to mount such a challenge, the Court of Appeals for the Second Circuit, noted that the bulk of the bank documents, which were seized, were obtained from the office of another officer of the bank, and that none of the documents came from the defendant's office. Id. As a result, the Court held that the defendant had "failed to demonstrate a sufficient nexus between the areas from which the documents were obtained and his own office." Id.

Similarly, although Pindyck was an officer and manager of the premises searched, Thompson testified that most of the documents, which were seized, came from the desks of Soli, at the Northeast Spinal Clinic, and of Evangelist, at the St. Paul Spinal Clinic. [T. Vol. IV, 64-66]. More importantly, there is no showing, in this Record, that Pindyck had an office, or a desk, at any of the locations searched, or that he had any expectation of privacy in any of the physical evidence that was seized, as access to the documents was not restricted. Moreover, the documents were, on this Record, business records, as Pindyck has advanced no competent showing that the records were his own. Therefore, we find that Pindyck does not have standing to challenge the searches, and we recommend that his Motion to Suppress be denied.

d. The Defendants' Other Challenges to the Search Warrants.

While unnecessary to the recommendation we make, in the interests of completeness, we also find that, upon our close review, ample probable cause was proffered for the Search Warrants at issue, and none of the Defendants have advanced a particularized, and cogent, showing to the contrary. A mere reading of Thompson's Affidavit in support of the issuance of the Warrants, plainly establishes substantial probable cause for the Warrants issued by the Magistrate Judge. While Bruno urges that omissions, or material mistakes in the Affidavits in support of the Warrants, require the conduct of a Franks Hearing, the argument is without merit. Franks v. Delaware, 438 U.S. 154, 171 (1978).

Bruno complains that the Affidavits did not detail a sufficient nexus between the assertedly fraudulent acts, and the premises of Northeast Spinal Rehabilitation, and asserts that the Affidavit only references that clinic in paragraphs 4, and 31. Bruno plainly overlooks the averments in paragraphs 13 to 18, and particularly those of paragraph 17, as well as the interrelationship of the clinics as detailed in the Thompson Affidavit. To the extent that certain of the Defendants have criticized that Affidavit as not detailing that some of the Defendants' patients were satisfied with their chiropractic care, we find the criticism irrelevant. First, we have no factual showing that any such satisfaction existed and, more importantly, the fact that some patients of the Defendants were purportedly satisfied with their chiropractic manipulations bears no relevance to the issue of probable cause for the issuance of the contested Search Warrants. The substance of the Defendants' Indictment, as well as the averments in Thompson's Affidavit, was not that the Defendants' patients received substandard care, but rather, that they either received no care, or less care, than the Defendants submitted for reimbursement to various insurance companies. Therefore, having failed to advance the substantial preliminary showing of any purported falsehood, or omission of material fact, we deny the request for a Franks Hearing. see, United States v. Mathison, 157 F.3d 541, 548 (8th Cir. 1998); United States v. Allen, 297 F.3d 790, 795-96 (8th Cir. 2002).

Lastly, we are mindful of the Defendants' argument, that the Search Warrant was impermissibly broad in its specification of the items to be seized, but we find no merit in the argument. To be sure, the Warrant provides, in particular, as follows:

8. The agents are authorized to seize all records located within the premises to be searched. The agents may seize any file cabinets containing documents and records to be seized if practicable to do so.

Plainly, this is a broad scope of search and seizure. As our Court of Appeals has explained:

The fourth amendment: requires that a search warrant describe with sufficient particularity the things to be seized in order to prevent "a general exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). The degree of specificity required in applying the particularity requirement "is flexible and may vary depending on the circumstances and types of items involved." Marvin v. United States, 732 F.2d 669, 673 (8th Cir. 1984), quoting United States v. Apker, 705 F.2d 293, 299 (8th Cir. 1983). For use involving a scheme to defraud, therefore, a search warrant is sufficiently particular in its description of the items to be seized "if it is as specific as the circumstances and the nature of activity under investigation permit." United States v. Wuagneaux, 683 F.2d 1343, 1349 (11th Cir. 1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). While the search warrant in this case was broad in the sense tht it allowed inspectors to seize almost all of the business records of Coin Stamp Gallery, we would conclude that under the particular facts of this case the scope of the warrant was justified. This is because it would not be possible through a more particular description to separate those business records that would be evidence of fraud from those that would not since there was probable cause to believe that fraud permeated the entire business operation.

United States v. Kail, 804 F.2d 441, 444 (8th Cir. 1986). The very same may be said here. Thompson's Affidavit details a pervasive, and interconnected, scheme to defraud private insurers through the submission of false claims of chiropractic treatment. Where, as here, the averments of a Search Warrant Affidavit provide probable cause to believe that a pervasive fraudulent scheme will be documented in the business records of the Defendants, the Warrant need only be "as specific as possible under the circumstances." United States v. Frederickson, 846 F.2d 517, 519 (8th Cir. 1988).

Here, we find that standard of specificity has been met. The Warrant particularizes various categories of records which are subject to search and seizure, and paragraph 8, which we have quoted, merely reflects that the incriminating nature of a particular record may not be discernable until compared with records in other files. see, United States v. Saunders, 957 F.2d 1488, 1491 (8th Cir. 1992). In United States v. Frederickson, supra at 518, the Court addressed the specificity issue that we now confront, under closely analogous circumstances, as follows:

The warrant itself listed numerous specific items to be seized, in addition to "any other instrumentalities and evidence (at this time unknown) of these crimes which facts recited in the accompanying affidavit make out." During the execution of the warrant, twenty-eight boxes of documents were seized, including documents which "which had anything to relate to financial information, how the business was run, [or] anything of that nature."

The Court found such specificity to be compliant with the Fourth Amendment, relying on its prior holding, in United States v. Dennis, 625 F.2d 782, 792 (8th Cir. 1980), where the particularity requirement was found satisfied by a Warrant which authorized the seizure of "certain books and records (or items of evidence) relating to the extortionate credit transaction business." See also, United States v. Horn, 187 F.3d 781, 788 (8th Cir. 1999), cert. denied, 529 U.S. 1029 (2000). Under the circumstances presented here, we conclude that the specificity requirements of the Fourth Amendment were not violated by the Search Warrants under review.

Even if we found that the Warrants suffered from overbreadth, we would, nonetheless, conclude that the searches were conducted in good faith. In United States v. Stelten, 867 F.2d 446, 451-52 (8th Cir. 1989), cert. denied, 493 U.S. 828 (1989), our Court of Appeals concluded that the good faith exception to suppression, that was first enunciated in United States v. Leon, 468 U.S. 897 (1984), applies to Warrants which are broadly worded, but which are not "so facially deficient * * * that the executing officers [could not] reasonably presume it to be valid." See, e.g., United States v. Thomas, 263 F.3d 805, 808 (8th Cir. 2001), cert. denied, 534 U.S. 1146 (2002) (applying Leon good faith exception to uphold a search conducted pursuant to a warrant completely lacking a description of the premises to be searched); United States v. Curry, 911 F.2d 72, 77 (8th Cir. 1990).

Here, the scope of the Warrant was adopted by an' experienced United States Magistrate Judge, and we could not expect the law enforcement officials, who executed the Warrant, to detect a purported instance of over breadth, which was not found, by the issuing Judicial Officer, to be of constitutional dimension. Moreover, we are presented with no evidence of bad faith on Thompson's part, in securing the Warrant, and there is evidence that the searching officers agreed to provide copies of any working documents to the clinics being searched. Accordingly, finding no basis upon which to suppress the evidence seized in the challenged, warranted searches, we recommend that the Defendants' Motions to Suppress that evidence be denied in all respects.

C. Motion to Dismiss the Superseding Indictment.

Bruno, Pindyck, and Czichray, seek to dismiss the Indictment, by asserting that the Indictment was secured through the use of tainted evidence, which was previously held inadmissible, in Czichrav I. However, since we have recommended, that Czichray's Motion to Suppress his statements, as well as the other Defendants' Motions to Suppress, be denied, we have no occasion to responsibly recommend that their Motion to Dismiss be granted.

NOW, THEREFORE, It is —

ORDERED:

1. That the Government's Motions for Discovery [Docket Nos. 13, 14, 15, and 16] are GRANTED.

2. That the Motions of Pindyck, and Czichray, for Discovery and Inspection [Docket Nos. 24 and 60] are GRANTED.

3. That the Motions of Pindyck, Bruno, and Czichray for the Disclosure of Evidence Favorable to Defendant [Docket Nos. 25, 26, 42, and 61] are GRANTED.

4. That Pindyck's Motion for Disclosure of Government Witnesses [Docket No. 27] is DENIED.

5. That the Motions of Pindyck, Bruno, and Czichray, for Government Agents to Retain Rough Notes [Docket Nos. 30, 48, and 64] are GRANTED.

6. That Pindyck's Motion to Confirm or Deny the Unlawful Employment of Electronic Surveillance [Docket No. 31] is DENIED.

7. That the Motions of Pindyck, Bruno, and Czichray, for Early Disclosure of Jencks Act Material [Docket Nos. 32, 46, and 62] are GRANTED.

8. That the Motions of Pindyck, Bruno, and Czichray, for Notice of Other Offenses [Docket Nos. 33, 55, and 63] are GRANTED.

9. That the Defendants' for Severance [Docket Nos. 34, 56, 70, and 76] are DENIED.

10. That the Motions of Pindyck, and Czichray, to Allow Filing of Additional Motions [Docket Nos. 35 and 75] are DENIED as moot.

11. That the Motions of Pindyck, Bruno, and Czichray, to Join in Co-Defendants' Motions [Docket Nos. 36, 58, and 74] are DENIED.

12. That the Motions of Pindyck, Bruno, and Czichray, for Disclosure of All Rule 1006 Exhibits and All Evidence upon which Those Exhibits Are Based [Docket Nos. 38, 54, and 71] are GRANTED.

13. That Bruno's Motion for Disclosure of Any Orders, Applications, and/or Supporting Affidavits for Electronic Surveillance [Docket No. 41] is DENIED.

14. That Bruno's Motion for Disclosure of the Identity of All Informants Who Were Witnesses to, or Participated in, the Crimes Charged in the Indictment [Docket No. 43] is DENIED.

15. That Bruno's Motion for Disclosure of Any Information Provided by Informants, their Criminal Records, and the Incentive Provided to Those Informants to Provide the Information [Docket No. 44] is DENIED.

16. That Bruno's Motion for Disclosure of All Investigative Reports Relating to this Investigation [Docket No. 45] is DENIED.

17. That Bruno's Motion for Disclosure of Copies of Any Handwritten or Tape-Recorded Notes of Interviews, Debriefings, or Surveillance of Defendant and Alleged Co-Conspirators, Witnesses and Informants [Docket No. 47] is DENIED.

18. That the Motions of Bruno, and Czichray, for Production of Any Informants Whose Identity is Disclosed for Purposes of Conducting Pretrial Interviews [Docket Nos. 49 and 68] are DENIED.

19. That Bruno's Motion for Disclosure of Any Sound Recordings Relating to the Investigation [Docket No. 50] is DENIED.

20. That the Motions of Bruno, Czichray, and Evangelist, for Disclosure of All Incentives Offered or Provided to Each Witness Who the Prosecution Intends to Call at Trial [Docket Nos. 53, 69, and 79] are GRANTED.

21. That the Motions of Bruno, and Czichray, to Delete Surplusage from the Indictment [Docket Nos. 57 and 72] are DENIED.

22. That Czichray's Motion for Participation by Counsel in Voir Dire [Docket No. 73] is deferred to the Trial Court.

23. That the Defendants' Joint Motion for Continuance of Trial Date [Docket No. 39] is deferred to the Trial Court, assuming that the Motion has not been made moot.

24. That Bruno's Motion to Suppress All Electronic Surveillance Evidence and Any Evidence Derived Therefrom [Docket No. 51] is DENIED.

AND, It is —

RECOMMENDED:

1. That the Defendants' Motions to Suppress Statements [Docket Nos. 28, 52, 65, and 77] be denied.

2. That the Defendants' Motions to Suppress Physical Evidence [Docket Nos. 29, 52, 66, and 78] be denied.

3. That the Motions of Pindyck, Bruno, and Czichray, to Dismiss the Indictment [Docket Nos. 37, 59, and 67] be denied.

NOTICE

Pursuant to Rule 45(a), Federal Rules of Criminal Procedure, D. Minn. LRl.l(f), and D. Minn. LR72.1(c)(2), any party may object to this Report and Recommendation by filing with the Clerk of Court, and by serving upon all parties by no later than May 16, 2003, a writing which specifically identifies those portions of the Report to which objections are made and the bases of those objections. Failure to comply with this procedure shall operate as a forfeiture of the objecting party's right to seek review in the Court of Appeals.

If the consideration of the objections requires a review of a transcript of a Hearing, then the party making the objections shall timely order and file a complete transcript of that Hearing by no later than May 16, 2003, unless all interested parties stipulate that the District Court is not required by Title 28 U.S.C. § 636 to review the transcript in order to resolve all of the objections made.