DAVID G. CAMPBELL, District Judge.
On June 8, 2010, a grand jury indicted Defendants Paul James Dellinger and Brian Luke Bonetto, both of whom worked as federal prison guards. The indictment alleges that Defendant Dellinger tackled and punched an inmate, violating his rights under the color of law in violation of 18 U.S.C. § 242. Doc. 1. It also alleges that Defendant Bonetto witnessed the attack and that both Defendants failed to report the incident accurately and thereby obstructed justice in violation of 18 U.S.C. § 1519. Id. Defendants have filed motions to exclude oral and written statements they made after the incident. Docs. 33, 35. On August 14, 2013, the Court held an evidentiary hearing at which both Defendants and two other correctional officers testified. For the reasons that follow, the Court will deny the motions.
I. Legal Standard.
In Garrity v. State of New Jersey, 385 U.S. 493 (1967), the Supreme Court held that, absent a knowing and voluntary waiver, incriminating statements made by law enforcement officers to other law enforcement officers under the threat of termination are inadmissible in a subsequent criminal trial. Defendants argue that the statements they made in the aftermath of the incident were coerced under the threat of job loss and should therefore be excluded under Garrity.
Although the government ordinarily bears the burden of proving the voluntariness of statements made to law enforcement officers, neither party has identified Ninth Circuit law addressing the burden of proof in the Garrity context. Several other circuits have held that a Garrity claim depends on a showing of coercion. See, e.g., United States v. Trevino, 215 Fed.Appx. 319, 321 (5th Cir. 2007) ("Although the Supreme Court has not recently revisited the Garrity line of cases, a number of the circuits have focused on the coercion' issues emphasized by the Court in those cases, making it a claim dependent on such a showing.") (citing United States v. Vangates, 287 F.3d 1315, 1321-22 (11th Cir. 2002) (holding that the defendant's failure to show that her belief about coercion was objectively reasonable is fatal to her claim); Chan v. Wodnicki, 123 F.3d 1005, 1009-10 (7th Cir. 1997) ("[Plaintiff], who has the burden on [what actions can constitute coercion, ] also has not been able to find such authority")) (some citations omitted). The D.C. Circuit has held that coercion exists when a defendant "in fact believed his... statements to be compelled on threat of loss of job and this belief [was] objectively reasonable." United States v. Friedrick, 842 F.2d 382, 395 (D.C. Cir. 1988).
The Court agrees that coercion is key to a Garrity claim, and finds the two-part test adopted by the D.C. Circuit in Friedrick to be reasonable. Because Defendants seek relief under Garrity, and the availability of that relief turns on their subjective beliefs and the objective reasonableness of those beliefs, the Court concludes that Defendants bear the burden of showing coercion - that they believed their statements to be compelled on threat of job loss and that their belief was objectively reasonable.
The first witness at the suppression hearing was Officer Daryl McCoy. Officer McCoy testified that he operated the video camera for a recorded after-incident inquiry. He testified that it was policy to create such a video after use-of-force incidents. Officer McCoy testified that approximately one hour elapsed between the incident and the filming of the video, which he testified took place at approximately 7:30 or 7:45 p.m. In addition to the video, Officer McCoy testified that Lieutenant Daniel Iverson told Defendants to put together written reports by the end of their shift. Officer McCoy was responsible for collecting those reports and conveying them to Iverson. He testified that Defendants were not suspected of any wrongdoing at that time of the reports and that prison staff is routinely asked to submit reports by the end of shift. He stated that he did not recall anyone telling Defendants that they needed to hurry in the drafting of their memoranda, but there was pressure to finish quickly because the shift was ending. Finally, he testified that he did not know what would happen to an officer who refused to write a report, but he assumed that there would be some kind of discipline and possibly firing.
Lieutenant Iverson testified that he directed the creation of the after-action video and requested reports from both Defendants. When asked what would have happened had Defendants failed to comply with the request, he responded that he did not know what would happen, but that he has seen officers disciplined for insubordination. He testified that neither Defendant ever requested to speak with an attorney or a union representative and that there was no discussion of their Fifth Amendment right to remain silent. He stated that if Defendants needed more time to complete their reports they could have asked to stay overtime and he would have granted the request.
Defendant Bonetto testified that correction officers "do what the Lieutenant says" and that he believes he could have been subject to discipline for refusing to complete a report. Specifically, he stated that he believed he would probably be "written up." On cross-examination, Defendant Bonetto acknowledged that he was familiar with report writing and had written reports previously. He testified that he knew a report would be required even before Lieutenant Iverson requested him to write one. Indeed, he began drafting the report at about 6:30 or 6:45 p.m., approximately 20 to 30 minutes after the incident and before Iverson had asked him to write a report. He did not ask for additional time to write the one-paragraph report or to see a lawyer or union representative.
Defendant Dellenger testified that Lieutenant Iverson told him to write a report and that he believed he would have been disciplined or possibly fired if he refused. He testified that he had other duties to attend to while he was writing his report, including supervising an area that included more than 100 inmates. He testified that after he completed the report, he was contacted by Lieutenant Iverson and asked to reduce the level of offense he was charging against the inmate with whom he had the altercation. He complied with the request and, as a result, deleted from his report a reference to the inmate biting him during the altercation. Defendant Dellenger acknowledged that he never asked to see an attorney or a union representative, never invoked his Fifth Amendment rights, and never asked for more time to complete his one-paragraph report. He stated that there was no accusation of wrongdoing that night and that he knew he would need to draft an incident report even before he was ordered to do so. On re-direct, Defendant Dellinger reiterated that he believed he would face severe discipline if he did not complete the report.
In United States v. Cook, 526 F.Supp.2d 1 (D.D.C. 2007), a Deputy United States Marshal was accused of using excessive force against an inmate. The victim submitted a complaint against the deputy and, upon receiving the complaint, the deputy's supervisor ordered him to complete a report. The deputy moved to suppress statements in the report under Garrity. After an evidentiary hearing, the court determined that the deputy's claim that he would be fired if he did not complete the report was dubious because: (1) he was unaware of the policy for discipline for failure to write a report, and (2) he never knew of anyone who had been terminated on these grounds. Id. at 7. Though he testified that another officer had been threatened with termination for not completing a report, he could not recall if he learned of that threat before or after he wrote his own report. Id. The deputy "did not object, refuse, or request representation." Id. Additionally, the court found that a belief he would be terminated, even if subjectively held, would not be objectively reasonable because it was contrary to the published disciplinary policies. Id. at 8. The court concluded that "both the possibility of prosecution and the possibility of termination were far too tenuous to support a finding that he was between the rock and the whirlpool' at the time he filed his reports." Id. (quoting Garrity, 385 U.S. at 498).
Cook also found that there was no authority for applying Garrity to statements made by an employee when no criminal investigation had been initiated against him, despite the fact that a civilian complaint against the deputy had already been received. Id. The court concluded a "tremendous and unnecessary administrative burden" would arise if Garrity were applied ...