United States District Court, D. Arizona
ORDER RE: MOTION TO SUPPRESS STATEMENTS
JENNIFER G. ZIPPS JUDGEs
Pending before the Court is an Amended Report issued by United States Magistrate Judge Leslie A. Bowman. Judge Bowman recommends that Defendant’s “Motion to Suppress Statements of Defendant” be denied. (Doc. 125.) After review of the record, including Defendant’s Objections to the Report and the Government’s Response to the Objections, the Court will adopt the Recommendation and order that the Motion be denied.
STANDARD OF REVIEW
The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998).
FACTUAL & PROCEDURAL BACKGROUND
In her Motion to Suppress, Defendant asserted that statements she made to SIS Agent Madrid on August 12, 2011 and to FBI agents Samantha Cobol and Danica Dudas on September 15, 2011 should be suppressed because these statements were taken at the direction of her employer and were a term and condition of her employment, and therefore not voluntary. (Doc. 24 at 4.) Defendant cited Garrity v. New Jersey, 385 U.S. 493 (1967).
After hearing evidence, Judge Bowman concluded, considering the totality of the circumstances, that the statements made on August 12, 2011 and September 15, 2011, were voluntary and were not coerced. (Doc. 125 at 12.) She noted that Defendant had counsel present with her during the interview, was told by the FBI agents that the statement was voluntary, that she did not have to answer questions, and that she could leave at any time. (Id. at 11-12.)
In her Objection to the Amended Report and Recommendation Defendant challenges only the Magistrate Judge’s findings with regards to the statements made on September 15, 2011 during the FBI interview. (See doc. 130.) Defendant asserts: (1) the FBI had a duty to warn Defendant that her statements were in regards to an official investigation and might be used against her; (2) she could have been subject to termination if she declined to give the statements even though she was told she was free to leave; and (3) she could not have knowingly and voluntarily waived her Fifth Amendment rights when she was not aware that she was under investigation.
Section 9 of the BOP Standards of Employee Conduct states:
During the course of an official investigation, employees are to cooperate fully by providing all pertinent information they may have. Full cooperation requires truthfully responding to questions and providing a signed affidavit if requested. Any employee who fails to cooperate fully or who hinders an investigation is subject to disciplinary action, up to and including removal.
(Doc. 24, ex. A.) Defendant was aware of the BOP policy because of her involvement in previous investigations and because the policy was reiterated to her at annual trainings. According to Defendant, although she was not overtly threatened with job forfeiture at the time her statements were given, being aware of BOP’s policy, she believed she was required to adhere to it and give a statement as a condition of her employment.
The Fifth Amendment guarantees that a defendant’s compelled statements will not be used against her in a subsequent criminal proceeding. U.S. Const., amend. V; see Garner v. United States, 424 U.S. 648, 653 (1976). Although the Fifth Amendment privilege is not ordinarily self-executing, United States v. Jenkins, 785 F.2d 1387, 1393 (9th Cir. 1986), “where a state ‘compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment.’” United States v. Anderson, 79 F.3d 1522, 1526 (9th Cir. 1996) (citing Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977)). The “classic penalty situation” arises where the state, “either expressly or by implication, ” asserts that invocation of the privilege would lead to a penalty, such as job forfeiture or revocation of probation. Minnesota v. Murphy, 465 U.S. 420, 434-35 (1984). In such circumstances a defendant’s failure to assert the privilege is not considered waiver, and neither the compelled statements, nor the fruits thereof may be admitted over the defendant’s objection at trial. Id.; Garrity v. State of New Jersey, 385 U.S. 493 (1967).
If the court finds that the incriminating statements were obtained under threat of removal from office, the court need not determine whether a defendant waived her privilege; the coerced statements are inadmissible. United States v. Saechao, 418 F.3d 1073, 1076 (9th Cir. 2005); United States v. Goodpaster, 65 F.Supp.3d 1016, 1026 (D. Or. 2014). However, merely requiring a person to appear and give testimony is insufficient to support a finding of coercion. Rather, the Government must take “‘the extra impermissible step’ of requiring the employee ‘to choose between making ...