Filed: Apr. 11, 2013
Latest Update: Mar. 28, 2017
Summary: 1, One count, not at issue here, also charged Palmquist with, making a false statement in an application for employment with, the Veterans Administration.Palmquists dependency benefits.about Bonds summary.United States v. Jadlowe, 628 F.3d 1, 13 (1st Cir.constitute coercion under Garrity.
United States Court of Appeals
For the First Circuit
No. 11-2371
UNITED STATES,
Appellee,
v.
MARK STEPHEN PALMQUIST,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin,* Circuit Judge,
and Woodlock,** District Judge.
George T. Dilworth, with whom Drummond Woodsum was on brief
for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief
for appellee.
April 11, 2013
*
Judge Boudin heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel’s opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d).
**
Of the District of Massachusetts, sitting by designation.
WOODLOCK, District Judge. Mark Palmquist is a Marine Corps
veteran who worked as a civilian employee with the U.S. Department
of Veterans Affairs from 2004 to 2010. He was convicted of fraud
in connection with his own receipt of veterans benefits.
Adverting to Garrity v. New Jersey, 385 U.S. 493 (1967),
Palmquist challenges his conviction on grounds that statements he
made during an interview with a Veterans Administration
investigator were coerced because they were induced by putting him
to a choice between loss of his job or surrender of his right to
remain silent under the Fifth Amendment and consequently should
have been suppressed. Adverting to commentary accompanying the
sentencing guideline applicable to his offense, he challenges his
sentence on grounds that the restitution ordered should have been
offset by other benefits he might have claimed from the Veterans
Administration. Finding no support for either the claim of
coercion or that of entitlement to benefits which could be used as
an offset to the restitutionary obligation, we decline to disturb
either the conviction or the sentence.
I.
On October 14, 2008, Palmquist filed a claim with the Veterans
Administration for increased service-related disability benefits
based on a back injury. He had filed six prior claims for back
injury, all of which were denied because he could not establish
that the injury was service-related. To support his October 2008
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application, which was granted, Palmquist supplied a government
memorandum purporting to establish that he sustained his injury in
connection with military service in Panama in 1988. The memo,
however, was a forgery, and no other evidence supported Palmquist’s
claim. Before the Veterans Administration uncovered the fraud,
Palmquist received $37,440 in disability benefits to which he was
not entitled.
Palmquist’s efforts to defraud the Veterans Administration, as
charged in the indictment, began long before 2008. Previously,
Palmquist had received service-related benefits in an amount
contingent upon his claimed number of dependents. Palmquist
claimed as dependents Aurora Ra Williams-Enstrom, whom he married
in 2002, and her minor daughter. Palmquist, however, never
notified the Veterans Administration that he divorced Williams-
Enstrom in 2003. As a result, Palmquist received $9,789 in
dependency benefits to which he was not entitled.
Palmquist was charged in a 27-count indictment with a variety
of offenses involving misconduct in his receipt of benefits from
the Veterans Administration.1 Pursuant to a plea bargain reserving
the right to appeal the denial of his motion to suppress the
statements he made to the Veterans Administration investigator, he
pled guilty to two counts: knowingly submitting a false claim for
1
One count, not at issue here, also charged Palmquist with
making a false statement in an application for employment with
the Veterans Administration.
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Veterans Administration service-related benefits in violation of 18
U.S.C. § 287, and theft of Veterans Administration service-related
benefits exceeding $1,000 in violation of 18 U.S.C. § 641. The
district court sentenced Palmquist to 18 months of imprisonment, 3
years of supervised release, $47,228 in restitution, and $200 in
special assessments.
II.
Palmquist challenges the district court’s refusal to suppress
statements he made to Timothy Bond, a criminal investigator for the
Veterans Administration Office of the Inspector General. The
statements may be taken to indicate that his use of the forged
memorandum was knowing and willful.2 In addressing Palmquist’s
suppression claim, we rely upon the facts as supportably found by
the magistrate judge and adopted by the district judge.
On April 3, 2009, Bond interviewed Palmquist in Palmquist’s
office at the Togus Veterans Administration Hospital. Veterans
Administration police officer Jeffrey Turner was also present for
2
The government, for its part, seeks in its briefing to
minimize the evidentiary importance of the statements Palmquist
made to Bond. According to the government’s version of the facts
in support of the guilty plea, Bond would have testified only to
Palmquist’s admissions about his knowledge of Veterans
Administration claims procedures, which would show that his conduct
was knowing and willful. Presumably, the government means to imply
that it could have made such a showing even without the statements
at issue, based on Palmquist’s rather extensive history of filing
claims with the Veterans Administration, not to mention that his
use of the forged memorandum was a fairly obvious act of deception.
In any event, because we conclude that the statements did not need
to be suppressed, we express no opinion regarding their evidentiary
significance.
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the interview. In keeping with Veterans Administration policy,
Bond did not record the interview, but he did take notes.
Bond introduced himself to Palmquist as a member of the Office
of the Inspector General’s criminal investigation division, which
he confirmed by showing Palmquist his badge. Bond explained that
he had received allegations of fraud, specifically concerning
Palmquist’s dependency benefits. He also explained that the
interview was voluntary, and that Palmquist could not be punished
for refusing to answer questions. Before asking any questions,
Bond presented Palmquist with a form that read:
ADVISEMENT OF RIGHTS
(FEDERAL EMPLOYEES – GARRITY)
You are being contacted to solicit your cooperation in an
official investigation regarding misconduct or improper
performance of official duties. In accordance with the
Privacy Act, you are advised that the authority to
conduct this investigation is contained in the Inspector
General Act of 1978, 5 U.S.C. App. 3.
The matter under investigation could constitute a
violation of law that could result in the criminal
prosecution of the responsible individuals.
This inquiry concerns ________________________________
You have the right to remain silent if your answers may
tend to incriminate you. If you do decide to answer
questions or make a statement, you may stop answering at
any time.
Anything you say may be used as evidence in both an
administrative proceeding or any future criminal
proceeding involving you.
If you refuse to answer the questions posed to you on the
grounds that the answers may tend to incriminate you, you
cannot be removed (fired) solely for remaining silent;
however, your silence can be considered in an
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administrative proceeding for any evidentiary value that
is warranted by the facts surrounding your case.
ACKNOWLEGEMENT
I understand the warnings and assurances stated above and
I am willing to make a statement and answer questions
voluntarily. No promises or threats have been made to me
and no pressure or coercion of any kind has been used
against me.
In the blank space following “This inquiry concerns,” Bond wrote
“VA compens[at]ion benefits for Mark Palmquist.” The form was
signed by Palmquist and by Turner, as a witness.
After summarizing the form for Palmquist, Bond gave Palmquist
an opportunity to review the form and to ask questions. Palmquist
looked only briefly at the form, but did not indicate any confusion
about Bond’s summary. Bond concluded that Palmquist was satisfied
with his explanation, and observed that Palmquist showed no
reluctance in signing the form.
During the interview, Palmquist seemed calm and cooperative.
Early in the interview, Palmquist briefly discussed his medical
problems--in addition to his back injury, Palmquist was being
treated for PTSD--and asked a question about a civil employment
discrimination suit he had pending against the Veterans
Administration.3 Bond again reminded Palmquist that he was
involved in a criminal investigation, but asked if Palmquist wanted
3
The discrimination action has since been determined
adversely to Palmquist. Palmquist v. Shinseki, 689 F.3d 66 (1st
Cir. 2012), petition for cert. filed (U.S. Dec. 26, 2012) (No. 12-
789).
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his civil counsel present. Palmquist declined and agreed to
continue the interview, which turned to the issue of benefits
fraud. The entire interview lasted about 20 minutes, and ended
cordially.
The district court, adopting a magistrate judge’s
recommendation, found that the statements Palmquist made to Bond
were voluntary and accordingly denied Palmquist’s motion to
suppress. We will uphold such a denial unless there is no
reasonable view of the evidence to support the determination.
United States v. Jadlowe, 628 F.3d 1, 13 (1st Cir. 2010), cert.
denied,
131 S. Ct. 1833 (2011). We review the lower court’s
findings of fact for clear error, and its legal determinations de
novo. United States v. Hughes,
640 F.3d 428, 434 (1st Cir. 2011).
In Garrity v. New Jersey, 385 U.S. 493 (1967), the Supreme
Court prevented government entities from “us[ing] the threat of
discharge to secure incriminatory evidence against an employee.”
Id. at 499. When an employee faces the choice “between self-
incrimination and job forfeiture,” the Court ruled, his statements
are deemed categorically coerced, involuntary, and inadmissible in
subsequent criminal proceedings. Id. at 496-97.
Not every possible threat of adverse employment action,
however, triggers immunity under Garrity. As we have observed:
In all of the cases flowing from Garrity, there are two
common features: (1) the person being investigated is
explicitly told that failure to waive his constitutional
right against self-incrimination will result in his
discharge from public employment (or a similarly severe
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sanction imposed in the case of private citizens); and
(2) there is a statute or municipal ordinance mandating
such procedure.
United States v. Indorato, 628 F.2d 711, 716 (1st Cir. 1980).
Garrity immunity is contingent upon the degree of certainty that an
employee’s silence alone will subject the employee to severe
employment sanctions. So, for example, potentially unfavorable
inferences drawn from an employee’s silence, which serve as one
factor in adverse employment action against him, have been found
“too conditional” a threat to trigger Garrity immunity. United
States v. Stein,
233 F.3d 6, 14 (1st Cir. 2000); see also id. at 16
(distinguishing “the threat of automatic loss of one’s livelihood
and the threat of an inference that might lead to such a loss”).
Nothing that Bond said or presented to Palmquist could have
led Palmquist to believe that, if he remained silent, he would
automatically lose his job or suffer similarly severe employment
consequences solely for having remained silent. The magistrate
judge credited Bond’s testimony that he accurately summarized the
Advisement of Rights. The Advisement, in turn, informed Palmquist
that he could not be fired solely for refusing to participate in
the interview, although his silence could be used as evidence in an
administrative proceeding. Under Stein, the consequences of such
a use of Palmquist’s silence are too conditional to be deemed
coercive.
Whatever Palmquist may have read or been told at the time, he
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argues he was also subject to coercion under the Veterans
Administration Standards of Conduct, which provide:
Employees will furnish information and testify freely and
honestly in cases respecting employment and disciplinary
matters. Refusal to testify, concealment of material
facts, or willfully inaccurate testimony in connection
with an investigation or hearing may be ground for
disciplinary action. An employee, however, will not be
required to give testimony against himself or herself in
any matter in which there is indication that he or she
may be or is involved in a violation of law wherein there
is a possibility of self-incrimination.
38 C.F.R. § 0.735–12(b). This regulation is not inherently
coercive, given that, read in full, it effectively precludes
automatic disciplinary action for an employee’s refusal to testify
“in any matter in which there is indication that he or she may be
or is involved in a violation of law wherein there is a possibility
of self-incrimination.” In such a case the employee “will not be
required to give testimony.” The regulation thus makes exactly the
exception necessary to prevent the attachment of immunity under
Garrity.
Our opinion in Sher v. U.S. Department of Veterans Affairs,
488 F.3d 489 (1st Cir. 2007), is not to the contrary. Sher did not
create a blanket rule that employees subject to 38 C.F.R.
§ 0.735–12(b) are entitled to immunity under Garrity. In Sher, the
employee received letters from the Veterans Administration
reporting that criminal prosecution had been declined by the U.S.
Attorney and advising that “‘[e]mployees will furnish information
and testify freely and honestly in cases respecting employment and
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disciplinary matters. Refusal to testify . . . in connection with
an investigation or hearing may be ground for disciplinary
action.’” Id. at 502. The letters, however, did not quote the
portion of § 0.735-12(b) indicating that an employee is not
required to give testimony where there is a possibility of self-
incrimination. Tellingly, then, the court said only that the
“notification”--i.e., the content of the letters and not the
regulation itself--“was a threat of removal sufficient to
constitute coercion under Garrity.” Id. (emphasis added).
Moreover, the central question in Sher was not whether the
employee faced coercion sufficient to immunize his statements from
use in criminal prosecution under Garrity. Rather, Sher involved
what the court took to be obviously coercive letters to the
employee, upon which Garrity immunity automatically attached, and
addressed whether the employee received sufficient notice of his
Garrity immunity to justify using his silence in an administrative
failure-to-cooperate charge. The court in Sher thus had no
occasion to determine whether any employee obligated to cooperate
under 38 C.F.R. § 0.735–12(b) would be under such coercion that
Garrity would render his statements inadmissible in criminal
prosecution.
In any event, this case is distinguishable from Sher in
several other respects. Here, there is no indication Palmquist was
aware of the regulation at all, let alone that he was selectively
presented with the coercive portion of the regulation that would
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imply he “faced the loss of his job for refusal to testify.” Sher,
488 F.3d at 502. Moreover, Bond made clear that he was
investigating a criminal matter regarding benefits fraud, rather
than an “employment and disciplinary matter,” which would trigger
application of the regulation.
Palmquist also argues that Bond and, alternatively, the
Advisement of Rights misstated the law, thus rendering Palmquist’s
testimony involuntary. Bond’s alleged misstatement was that
Palmquist could not be punished for not answering questions.
According to Palmquist, this misstated the extent to which his
silence could be used against him in administrative proceedings.
Bond was plainly referring to Palmquist’s immunity from criminal
punishment based on his silence; the statement is thus not
inconsistent with Bond’s later provision of an accurate summary of
the Advisement of Rights, which discusses the potential evidentiary
uses of silence. This alleged inconsistency, if inconsistency it
was, does not give rise to any clear error such that we must reject
the district court’s determination that Bond summarized the
Advisement of Rights form accurately.4
4
Moreover, any failure to inform Palmquist of adverse
employment consequences that could flow from his silence only
diminishes the likelihood that his statements were coerced by the
threat of adverse employment consequences. Cf. Dwan v. City of
Boston, 329 F.3d 275, 279 (1st Cir. 2003) (“[C]oercion is lacking
so long as the employee was never threatened or forewarned of any
sanction for refusing to testify.” (emphasis in original)).
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Palmquist also complains that the warnings in the Advisement
of Rights are inconsistent with model warnings provided by
Department of Justice in its so-called “Wray Memorandum.” Unlike
the OIG Advisement of Rights, the Garrity warning suggested by the
Wray Memorandum does not mention that an employee’s silence may be
used as evidence in an administrative or disciplinary proceeding.
Putting aside that nothing requires the Veterans Administration to
use the Department of Justice form, we have already observed that
potential use of Palmquist’s silence as evidence for what it is
worth is too conditional to constitute coercion. Stein, 233 F.3d
at 14, 16.
Palmquist makes no argument that his statements should have
been suppressed on more conventional voluntariness grounds, and the
record provides no such indication of coercion in any event. The
interview was, by all accounts, calm and cordial. Having
supportably determined that Palmquist’s statements were not
immunized under Garrity, the district court properly denied the
motion to suppress.
III.
Palmquist’s challenge to the court’s restitutionary order turns
on his alleged entitlement to an offset for benefits he never
received from the Veterans Administration. From March 2006 until
their divorce in October 2007, Palmquist was married to Tammy Swank.
As a consequence, he could have claimed her as a dependent. If such
a claim had been made and awarded, the $9,789.00 in improper
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benefits received for his previous wife Williams-Enstrom and her
child, and awarded as restitution to the Veterans Administration,
would theoretically have been reduced by $1,791.00. But he made no
timely administrative claim for the Swank benefits and chose only
to assert entitlement during the sentencing proceedings.
His challenge involves a shameless sleight of hand. First,
Palmquist asks that his failure to apply for the benefit in a timely
fashion and the bar consequence under Veterans Administration
regulations be ignored. But procedural rules are applicable to all
claimants. Palmquist needed to submit updated evidence of his
marital status within one year of his marriage to Swank in order for
his increased benefits to run from that dependency status event.
See 38 C.F.R. § 3.660(c); see also id. §§ 3.401, 3.213.5 Palmquist
in his reply brief “concedes that he did not fill out all the
paperwork for [the Swank] benefits”6 and thus failed to meet these
procedural requirements. Like any other claimant who failed to make
5
It appears that the testimony during the sentencing hearing
that Palmquist had two years from the dependency event to apply for
benefits was inaccurate. Moreover, it appears there is only a time
limit on making benefits retroactive to the dependency event; there
is no time limit on applying for prospective benefits. These
refinements are of no assistance to Palmquist, because he did not
apply for benefits at any point during his marriage to Swank.
6
He contends, however, that he gave the Veterans
Administration notice of his marriage to Ms. Swank when he filed
for medical benefits for her. But that notice, apart from not
claiming dependency benefits, was provided to a different Veterans
Administration division, which someone like Palmquist, with a
sophisticated understanding of Veterans Administration procedures,
would know to be unlikely to make the connection to a claim for
dependency benefits.
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a timely claim, Palmquist thus had no entitlement to any Swank
benefit.
Second, Palmquist seeks to avoid his procedural obligations by
invoking Comment 3(F)(ii) to USSG § 2B1.1, the sentencing guideline
governing the loss incurred by the Veterans Administration and the
restitution required to make the Veterans Administration whole. The
Comment provides:
Government Benefits. - In a case involving government
benefits (e.g., grants, loans, entitlement program
payments), loss shall be considered to be not less than
the value of benefits obtained by unintended recipients
or diverted to unintended uses, as the case may be. For
example, if the defendant was the intended recipient of
food stamps having a value of $100 but fraudulently
received food stamps having a value of $150, loss is $50.
But the underlying, if not explicitly stated, assumption in the
comment is that an “intended recipient” is one who has an
entitlement to $100 in food stamps. Having failed timely to make
a claim, Palmquist, like any other untimely claimant, lost any legal
entitlement he might have had.7 The reason for his failure to make
the Swank claim is obvious: it would have disclosed that he no
longer had any entitlement to the more valuable Williams-Enstrom
benefit, and hadn’t for some time, since he was divorced from
7
Such an independent procedural bar to mitigating benefit
amounts distinguishes this case from those, cited to us by
Palmquist, in which courts measured loss as the difference between
the amount of benefits actually received and the amount defendant
would have received absent untruthful reporting in the benefits
claim itself. See United States v. Tupone, 442 F.3d 145, 153-54
(3d Cir. 2006); United States v. Dawkins,
202 F.3d 711, 714 (4th
Cir. 2000).
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Williams-Enstrom in 2003. His scheme depended on concealment of the
fact that he was no longer entitled to Williams-Enstrom benefits,
a disclosure that would necessarily follow from a claim for Swank
benefits.
There is no reason why Palmquist should get some special
indulgence, unavailable to other dilatory benefit claimants,
providing him with a means to minimize his restitutionary
obligations for criminal fraud. His claim for an offset is the
financial equivalent of the plea of the parricide who seeks
consideration from the court by pointing out that he is an orphan,
seeking to avoid confronting the unhappy fact that this is a
condition of his own contrivance.
Affirmed.
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