JENNIFER G. ZIPPS, District Judge.
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.
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).
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.
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:
(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 incriminating statements and jeopardizing his conditional liberty by remaining silent.'" Saechao, 418 F.3d at 1078 (quoting Murphy, 465 U.S. at 436).
Applying these principles in the context of supervisory probation, the Supreme Court in Murphy held that a Minnesota state law requiring probationers to attend meetings with their probation officers and to answer truthfully questions posed by that officer did not in and of itself create a penalty situation. The Court emphasized that the statute only prohibited false answers and did not preclude the probationer from asserting any claim of privilege. Id. at 437-38. The Court noted that Murphy was not expressly informed during the meeting with his probation officer than an assertion of the privilege would result in the imposition of a penalty and the fact that Murphy apparently felt no compunction about untruthfully denying certain information strongly suggested that the "threat" of revocation did not overwhelm his resistance. Id. at 438-39. Finally, the Court noted that even if Murphy did harbor a belief that his probation might be revoked for exercising the Fifth Amendment privilege, his belief would not have been reasonable in light of the many decisions that have made clear that the State could not constitutionally carry out a threat to revoke probation for legitimately exercising the Fifth Amendment privilege. Id.
In contrast, in United States v. Saechao, the Ninth Circuit concluded that an Oregon statute constituted a penalty under Murphy where the statute provided for revocation of probation for failing to answer all reasonable questions asked by a probation officer. There the probationer made incriminating statements immediately after his probation officer reviewed the conditions of probation, including the requirement to answer all reasonable inquiries promptly and truthfully. 418 F.3d at 1075. In light of the wording of the statute and applicable Oregon cases upholding revocation of probation for a probationer's refusal to answer questions, the appeals court found that the probationer had no choice other than to disclose or face revocation of probation. Id. at 1078-79.
In the context of public employees, it is clear that where the threat of removal from office is explicit and the defendant is aware of a pending criminal prosecution, the statements will be considered coerced. Thus, in Garrity, the Supreme Court found coercion where a New Jersey statute mandated job forfeiture for any public employee that refused to testify against himself and, prior to being questioned, each state police officer was warned "(1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office." 385 U.S. at 494. The Court reasoned that the choice on the officers was "one between self-incrimination and job forfeiture," and found that "the statements were infected by the coercion inherent in this scheme of questioning and [could not] be sustained as voluntary. . . ." 385 U.S. at 494.
Similarly, in Gardner v. Broderick, 392 U.S. 273 (1968), the Supreme Court found statements to be coerced where a New York City patrolman was asked to sign a waiver of statutory immunity before testifying in front of a grand jury regarding alleged bribery and corruption of New York City police officers. Id. at 274-75. The patrolman was told that if he declined to testify, he would be dismissed. As in Garrity, both the possibility of criminal investigation and the threat of job forfeiture was apparent to the defendant prior to making a decision whether to testify. See id.
The Court finds that Defendant's statements to FBI agents on September 15 were voluntary and were not obtained under threat of removal from office. Any belief that Defendant may have held that she would be fired for failing to answer all questions was not subjectively or objectively reasonable. Although the BOP policy requires employees to fully comply with an official investigation, Defendant was expressly told that she was not required to answer the investigators' questions and that she could leave at any point during the interview. Defendant, who had legal representation at the interview, voluntarily participated in the interview after being so advised. There is no point at which she asked to waive her privilege against self-incrimination or overtly threatened with job forfeiture. There is no point where she attempted to assert the privilege. In sum, there is no indication that the Government took "`the extra impermissible step' of requiring the Defendant `to choose between making incriminating statements and jeopardizing [her] conditional liberty by remaining silent.'" Saechao, 418 F.3d at 1078 (quoting Murphy, 465 U.S. at 436).
Defendant argues that the statements should be suppressed because she was under investigation and the Government failed to warn her of that fact. According to Defendant, the fact of the investigation is important because Garrity imposes an affirmative duty upon the Government to warn an employee that he or she is under investigation, just as it has such a duty in the context of a custodial interrogation.
For the foregoing reasons, the Court finds that the statements made by Defendant on August 12, 2011 and September 15, 2011, were voluntary and not coerced.
Accordingly, IT IS HEREBY ORDERED as follows: