Opinion
CR420-014
02-05-2021
UNITED STATES OF AMERICA, v. SHARON ANN WALTON, Defendant.
ORDER AND REPORT AND RECOMMENDATION
CH ISTOPHER L. RAY, UNITED STATES MAGISTRATE JUDGE.
Defendant Sharon Walton is indicted on a single count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). See doc. 1 (Indictment). Defendant’s prior counsel moved to suppress statements she made to investigators. See doc. 25 (Motion to Suppress Statements). The Court held a hearing on several motions, including the suppression motion, on September 24, 2020. Doc. 38. After substitute counsel entered the case, he confirmed his adoption of all of the pending motions. See doc. 53. For the reasons explained below, the suppression motion should be DENIED. Doc. 25.
I. Sealed Material
The Government requested, and the Court granted, that materials submitted by the Government related to defendant’s motion to suppress statements she made to law enforcement would be sealed. See docs. 26 & 29. Nevertheless, the public has a qualified right of access to criminal proceedings, including judicial records, protected by the First Amendment. See, e.g., United States v. Ochoa-Vasquez, 428 F.3d 1015, 1028-29 (11th Cir. 2005) (citations omitted). Protection of that right implies a presumption of publicity. Id. at 1030. That presumption may be overcome by “‘an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. (quoting Press-Enterprise Co. v. Superior Ct. of Cal., Riverside Cnty., 464 U.S. 501, 510 (1984)). Rather than sealing documents entirely, there is a preference for sealing “only such parts . . . as necessary” to preserve the interest served by sealing. Press-Enterprise Co., 464 U.S. at 513.
In order to minimize the restriction of this record from the public, the Court will not seal this Order and Report and Recommendation in its entirety. Rather, the Court will place a redacted version on the public docket and an unredacted version under seal. In order to ensure that only properly sealed information is redacted and to ensure that no information is inadvertently published, the Court will afford the parties an opportunity to propose those redactions.
To that end, the Clerk is DIRECTED to SEAL this Order and Report and Recommendation until further Order from the Court. Counsel should, however, be afforded immediate access. Within seven days of the date of this Order and Report and Recommendation, counsel are DIRECTED to confer and agree to a redacted version which they will submit to the undersigned’s Courtroom Deputy Clerk. If they disagree on any redaction, the parties are DIRECTED, within the seven-day period provided above, to submit a Joint Status Report clearly identifying each proposed redaction about which they disagree and the basis for their disagreement. The Clerk is DIRECTED to file any such Joint Status Report UNDER SEAL. These interim deadlines shall not affect the deadlines to submit objections to the Report and Recommendation, as discussed below.
II. Report and Recommendation on Suppression
A. Background
In this single-defendant conspiracy case, Walton is alleged to have participated in a scheme to misappropriate and launder funds from various retirement accounts. Doc. 25 at 1. Pursuant to their investigation of those allegations, several agents interviewed Walton in the early-morning hours of January 24, 2019. Id. at 2. Defendant argues that the statements she made during that interview were not voluntary and she filed the instant motion, pursuant to the Supreme Court’s opinion in Jackson v. Denno, 378 U.S. 368 (1969), seeking suppression. Id. at 3-4. The Court held a hearing on the motion on September 24, 2020.
The Government’s exhibits, doc. 41, were admitted without objection for purposes of the hearing, but defense counsel expressly reserved the right to challenge the evidentiary value of the Government’s Exhibit 2 at any future proceeding.
The Government’s brief clarifies, and defendant does not dispute, that law enforcement arrived at Walton’s home to execute a state search warrant. See doc. 30 at 1-2. The Government contends that, after informing her that they were there to execute the warrant, “[t]he agents asked Walton whether she would be willing to speak to them voluntarily,” and she agreed. Id. at 2. The parties also do not dispute the circumstances of the interview. The interview took place in Walton’s home at her kitchen table. Id. Special Agent Williams—who conducted the interview and testified at the September 24 hearing—stated that among the other officers present to execute the warrant, Secret Service Special Agent Glen Kessler was also present and directed most of the interactions with Walton. See doc. 38.
Williams testified that Walton did not appear to him to have any difficulty understanding the request to speak with agents and escorted the agents to her kitchen table. See also doc. 41 at 173 (photo of Walton, Williams, and Kessler at the table). Portions of the interview were recorded, but Williams testified that there were no recordings of the initial contact or initial consent to an interview, and that his recorder did not capture the earliest portions of the interview because of technical issues. He realized that the recorder was not working as soon as he sat down at the table and he immediately retrieved a replacement from his vehicle. “Only a couple of minutes,” elapsed before Kessler initiated his recording.On cross-examination, Williams clarified that the agents arrived at the residence between 6:30 and 7:00 a.m. He further testified that the recorded portion of the interview did not begin until sometime after 7:00 a.m.
At the hearing, the Government played excerpts from the audio recording. Rather than citing to the audio recording by time code, where the transcript is relevant to Agent Williams’ testimony, the Court has cited to the relevant page of the transcript. A copy of the recording was admitted as Government’s Exhibit 1, and a transcript of the recording was provided by the Government as its Exhibit 2, see doc. 41 at 1-172.
Williams explained that the interview lasted approximately three hours. During the interview, Walton’s demeanor was “nervous,” and she “appeared upset,” but she was able to answer the agents’ questions. Williams further testified that Walton never attempted to withdraw her consent to the interview. She never appeared to have any difficulty understanding the questions and was told “multiple times” that she was free to leave. She was also told “multiple times” that she was not under arrest. In response to questions about whether she was “going to jail,” Williams testified that the agents informed Walton that she was not going to jail “that day.” He also testified that agents offered to assist Walton in getting her young granddaughter to school, but she declined. At least once in the interview, Kessler discussed the possibility that Walton would “go to prison,” the possible penalties for the crimes being investigated, and the fact that Walton was on probation. Most significantly, Kessler stated early in the interview, “You’re going to go to federal prison for about 15 to 20 years if you can’t open up and start telling me about The Man.” Doc. 41 at 7. XXXXX
See, e.g., doc. 41 at 19 (Kessler states that Walton is “free to leave,” and that Walton was “free to get out of here”), 22 (Kessler states that Walton is “free to move about.”).
See, e.g., doc. 41 at 3 (Kessler refers to “the reason we’re not arresting you today”), 10 (Kessler states “you’re not under arrest.”), 22 (Kessler states “we’re not taking you,” multiple times, and “I promise you, we’re not taking you to jail today. I promise you. Okay? There’s no - we don’t have any intentions of taking you to jail today.”).
See, e.g., doc. 41 at 10 (when Walton assumes that the “about to go . . . to jail,” Kessler replies “No, no, no.”); 22 (Kessler states “I promise you, we’re not taking you to jail today. I promise you.”).
See, e.g., doc. 41 at 20 (Kessler discusses whether Walton needs to take her granddaughter to school, e.g., “Well, you can take her [to school] this morning.”).
Williams noted that Walton signed a consent to permit the search of computers or electronic equipment that recited: “This written permission is given by me voluntarily. I have not been threatened, placed under duress, or promised anything in exchange for my consent.” Doc. 41 at 175. Walton also provided verbal consent to a search of her phone. Finally, she signed a written consent to search the premises and automobile that included identical voluntariness language. See doc. 41 at 176. On crossexamination, Williams acknowledged that those forms were not signed until “some hours into the interrogation.”
Although the discussion of the verbal consent to search the phone does not include a specific reference to the recording or transcript, see doc.41 at 4 (Walton states, “You can open my phone.”).
The transcript references the consent forms for the first time at page 53. Doc. 41 at 53 (“These are just consent forms for the house and for the electronics.”).
B. Analysis
In the first place, the Court must determine whether Walton’s interview was custodial. Whether a suspect is “in custody,” depends upon “whether there is a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (quotes and cite omitted). Despite the sensitivity of the test to the circumstances of the interrogation, it remains an objective inquiry. United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006) (evaluation of custody is context-sensitive, but objective); see also United States v. Eubank, 2015 WL 3557493 at * 6 (S.D. Ga. Mar. 18, 2015). The circumstances of the interrogation are evaluated from the perspective of “the reasonable innocent person.” United States v. Street, 472 F.3d 1298, 1309 (11th Cir. 2006); Eubank, 2015 WL 3557493 at * 6 (“The test [for custody] is an objective one: taking into account all the circumstances surrounding the interrogation, would a reasonable person—one innocent of any wrongdoing—have felt that he was not free to terminate the interview and leave.” (cites omitted)). Custodial status is relevant because, if the interview were custodial and Miranda warnings were not provided, any statements would be presumed to have been made involuntarily. See, e.g., United States v. Lall, 607 F.3d 1277, 1285 (11th Cir. 2010).
The defendant does not contend that the interview was custodial. See doc. 25 at 3-4. The Government’s brief, however, includes an argument that the interview was not custodial. See doc. 30 at 6. As discussed below, whether the interview was custodial is relevant to the voluntariness analysis. Therefore, the Court has followed the Government’s presentation and addressed the issue, notwithstanding that defendant’s failure to raise it may have waived the argument.
The interview was not custodial. First, it took place in her home. Brown, 441 F.3d at 1348 (although the location of an interview is not dispositive, “courts are much less likely to find the circumstances custodial when the interrogation occurs in familiar or at least neutral surroundings, such as the suspect’s home.”) (quotes and cite omitted)). Second, the officers informed her he was not under arrest and was free to leave. See id. at 1347 (“[T]he fact that an individual is told he is not under arrest and is free to leave is a fact of substantial importance in determining whether a reasonable person would have felt free to leave.”). There is no question, therefore, that Walton was not “in custody” when she made the challenged statements; so Miranda and its progeny provide no basis for suppressing them.
Even absent custody, Walton’s challenged statements could still be inadmissible if they were involuntary. See, e.g., Lall, 607 F.3d at 1285 (“Even if [the defendant] was not in custody in the technical sense (and thus Miranda warnings were not required), we would still be required to address the voluntariness of his confession.”). A confession is involuntary, and thus inadmissible, “only when the [totality of] the circumstances show that ‘coercive police activity’ overcame the defendant’s free will.” Arvelo v. Sec’y Fla. Dept. of Corrs., __ F. App’x __, 2017 WL 1947909 at * 2 (11th Cir. May 10, 2017) (quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)). “Some form of government coercion is essential to a finding of involuntariness.” United States v. Lynn, 547 F. Supp. 2d 1307, 1310 (S.D. Ga. 2008) (citing Connelly, 479 U.S. at 163). As this Court has explained:
The constitutional protection against self-incrimination includes Miranda warnings that a suspect’s statements may be used against him, and the more general Due Process requirement that there must be a “voluntary, knowing, and intelligent waiver” of a suspect’s rights before “uncounseled incriminating statements made during a custodial interrogation may be admitted.” Lall, 607 F.3d at 1282-83 (citing United States v. Beale, 921 F.2d 1412, 1434 (11th Cir. 1991)). Custodial interrogation presents a sufficient specter of coercion that failure to comply with Miranda’s requirements creates a presumption that a confession was not voluntary. Id. at 1285 (citing Arizona v. Fulminante, 499 U.S. 279, 287 (1991); Jarrell v. Balkcom, 735 F.2d 1242, 1252 (11th Cir. 1984)). And if the Government contends that a suspect waived his Miranda rights, it must show that the waiver was “voluntary, knowing and intelligent” by establishing: (1) that “‘the relinquishment of the right [was] voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception[;]’” and (2) it “‘must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’” Id. at 1283 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986).
In determining voluntariness, the Court must assess “the totality of the circumstances—both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Coercive conduct normally involves an exhaustively long interrogation, the use of physical force, or the making of a promise to induce a confession. Connelly, 479 U.S. at 163 n. 1; United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir. 1992). Ultimately, the Court must determine “whether a statement was made freely or whether the defendant’s ‘will has been overborne and his capacity for self-determination has been critically impaired.’” Devier v. Zant, 3 F.3d 1445, 1455-56 (11th Cir.1993) (quoting Culombe, 367 U.S. at 602).Lynn, 547 F. Supp. 2d at 1310.
At the hearing, defense counsel identified three aspects of the interrogation supporting the exertion of coercion: (1) the length of the interview, (2) references to defendant’s status as a probationer, and (3) “conditional statements” regarding the penalties she faced. The Government’s evidence shows that, notwithstanding those arguably coercive features, the totality of the circumstances were not sufficiently coercive to render Walton’s statements involuntary.
First, even in custodial interrogation cases, the Supreme Court has stated that “there is no authority for the proposition that an interrogation [lasting three hours] is inherently coercive.” Berghuis v. Thompkins, 560 U.S. 370, 387 (2010). Any coercive effect from the length of the interrogation is further diminished, here, by the fact that the interview took place in Walton’s home, without any show of force by law enforcement. District courts in this circuit have recognized that interrogations of similar length, even when conducted in contexts far more coercive than these, did not render the statements involuntary. See United States v. Bhatt, 160 F. Supp. 3d 1359, 1364-65 (N.D. Ga. 2016) (“lengthy interview . . . while he vulnerably stood in his boxers for [“almost three hours,” see id. at 1362] after the shock of being woken by a large team of armed officers,” did not render statements involuntary); see also United States v. Salman, 286 F Supp. 3d 1325, 1351 (M.D. Fla. 2018) (finding no coercive conduct, “notwithstanding the 5.5 hours of questioning.”). The length of the interrogation, therefore, does not support the conclusion that Walton’s statements were involuntary.
Second, the references to defendant’s status on probation did not render her statements involuntary. The Seventh Circuit held, even where a probation officer accompanies law enforcement, “fear of [probation] revocation alone is not a sufficient ground” for finding a defendant’s statements involuntary, given the lack of other coercive conditions of the interview. United States v. Rainey, 404 F. App’x 46, 55-56 (7th Cir. 2010). Even supposing a sufficiently articulate threat of consequences to a probationer might render subsequent statements involuntary, the references to Walton’s probation status are, at best, vague. Walton brings up her probation status several times, but the agents do not attempt to use her status as leverage to initiate or prolong the interview.
See, e.g., doc. 41at 3 (Kessler notes Walton is “on probation,” and later states that officers are “not arresting [Walton] today . . . ‘cause [they] don’t want to affect anything”).
Near the end of the interview, for example, Walton and Kessler discuss the fact that, in Kessler’s opinion, she is likely obligated to inform her state probation officer of her contact with law enforcement. Doc. 41 at 163. He, however, is adamant that she will not be jailed based solely on the fact of the contact, provides her with his contact information to pass on to her probation officer, and advises her to inform the officer that she was not arrested Id.
Third, references to the possible penalties of criminal conduct, do not typically render a statement involuntary. See United States v. Quinn, 123 F.3d 1415, 1424 (11th Cir. 1997); United States v. Nash, 910 F.2d 749, 753 (11th Cir. 1990). Kessler’s statement, i.e. “You’re going to go to federal prison for 15 to 20 years if XXXXX,” doc. 41at 7, is certainly more troubling than a completely neutral estimation of the potential penalties of alleged criminality. It does not, however, rise to the level of a promise or explicitly offer a quid pro quo. See United States v. Quinn, 123 F.3d 1415, 1423-24 (11th Cir. 1997) (law enforcement telling a defendant “he was facing a 40-year sentence but might receive a more favorable sentence if he cooperated,” did not render statements involuntary); United States v. Hipp, 644 F. App’x 943, 947 (11th Cir. 2016) (“A general statement that cooperation may be beneficial to an accused, with no promise of leniency, does not amount to an illegal inducement.”); see also United States v. Mendoza-Cecilia, 963 F.2d 1467, 1475 (11th Cir. 1992), abrogated on other grounds by Coleman v. Singletary, 30 F.3d 1420 (1994) (law enforcement statement that “‘if [defendant didn’t] cooperate with us, ten years can be a long time in jail.’” did not render statements involuntary).
Moreover, despite some dicta to the contrary, courts have rejected the application of a per se rule that a statement was preceded by a direct or implied promise is involuntary. See Lall, 607 F. 3d at 1285. Further exchanges between Walton and Kessler support the conclusion that the original reference to a possible prison term was not a quid pro quo promise. First, shortly after the original reference, Walton and Kessler engage in the following, somewhat broken, exchanges:
[Walton] I mean, so therefore I’m about to go -
[Kessler] No, no, no.
[Walton] -- to jail.
[Kessler] Federal - no. No, no, no, no.
Doc. 41 at 10. And then:
[Kessler] You’re a middle person. I don’t care about the -
[Walton] Right. But I still -
[Kessler] –middleman.
[Walton] --going to go to jail for that.
[Kessler] Not necessarily.
[Walton] Yes, I will.
[Kessler] Not necessarily.Id. at 11. When Agent Kessler returns to the question of possible consequences for the scheme, he says “So this is going to be a big case at some point. This is going to be huge, and a lot of people are going to go to federal prison for 15 to 20 years.” Id. at 55. Later still, in response to Walton’s question about whether she’s going to “go to jail for all of this,” Kessler responds that she “could potentially end up going to jail for all this if XXXXX Id. at 68.
The Court agrees with defendant that Kessler’s suggestion she “was going to go to federal prison for about 15 to 20 years if XXXXX” even if not an implied promise, is coercive. However, that single coercive statement, standing alone, does not render Walton’s statements involuntary. Lail, 607 F.3d at 1285 (The “suggestion of a per se rule that would render a confession involuntary if it was preceded by any direct or implied promises, however slight, has been rejected by the Supreme Court.” (internal quotation omitted) (citing Arizona v. Fulminante, 499 U.S. 279, 284-85 (1991)). In the context of the entire interview, Kessler’s single statement that whether Walton goes to prison is conditional upon her cooperation is the exception. The consistent pattern is far more indicative of a general reference to the possible consequences of the alleged criminality and Kessler’s encouragement XXXXX. Finally, after the conditional statement, Walton signed consents that recited that she had “not been threatened, placed under duress, or promised anything . . . .” Id. at 175-176. All of that context weighs against the conclusion that the totality of the circumstances were so coercive that Walton’s “will [was] overborne and [her] capacity for self-determination [had] been critically impaired.” Lynn, 547 F Supp. 2d at 1310 (quotation marks omitted) (quoting Devier, 3 F.3d at 1455-56). In the absence of any evidence from Walton supporting more coercive construction, the Court should find that the evidence preponderates in favor of the non-coercive construction.
Taken in the totality of the circumstances, the Court should find that the Government has proven by a preponderance of the evidence that any coercive effect from Kessler’s single sentence was insufficient to render Walton’s statements involuntary. See Bhatt, 160 F. Supp. 3d at 1363 (“Isolated incidents of police deception, [cit.], and discussions of realistic penalties for cooperative and non-cooperative defendants, [cit.], are normally insufficient to preclude free choice.” (cites omitted)); id. at 1364 (“Eleventh Circuit law remains clear that the isolated representations of a law enforcement officer who encourages cooperation with the government and indicates the adverse consequences of non-cooperation will not alone be deemed an illegal inducement that overwhelms the defendant’s ability to freely and voluntarily make a statement.”). Accordingly, the motion to suppress, should be DENIED. Doc. 25.
This report and recommendation (R&R) is submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72.3. Therefore, within 14 days from the date of this order, any party may file written objections to this R&R with the Court and serve a copy on all parties. The document should be captioned “Objections to Magistrate Judge’s Report and Recommendations.” Any request for additional time to file objections should be filed with the Clerk for consideration by the assigned district judge.
After the objections period has ended, the Clerk shall submit this R&R together with any objections to the assigned district judge. The district judge will review the magistrate judge’s findings and recommendation pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonette v. V.A. Leasing Corp., 648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F. App’x 542, 545 (11th Cir. 2015).
SO ORDERED and REPORTED AND RECOMMENDED.
As noted, Due Process requires that non-custodial statements be voluntary as well, but the context changes the degree of volition required. In non-custodial situations, voluntariness is not the exception, but the rule. See Beckwith v. United States, 425 U.S. 341, (1976) (“[N]oncustodial interrogation might possibly in some situations, by virtue of some special circumstances, be characterized as one where the behavior of law enforcement officials was such as to overbear [a suspect’s] will to resist and bring about confessions not freely determined.” (emphasis added) (alterations, quotes, and cite omitted); see also Eubank, 2015 WL 3557493 at * 8 (“But while a defendant’s individual characteristics may suggest that he was especially susceptible to police coercion, or even that he lacked the volitional ability to make a free and rational choice, [his] confession is nevertheless voluntary unless the police exploit that susceptibility or mental weakness with coercive tactics.” (emphasis added; cite omitted)).