United States v. Palmquist

• Decision Date: 11 April 2013
• Docket Number: No. 11–2371.,11–2371.
• Citation: 712 F.3d 640
• Parties: UNITED STATES, Appellee, v. Mark Stephen PALMQUIST, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

712 F.3d 640

UNITED STATES, Appellee,

v.Mark Stephen PALMQUIST, Defendant, Appellant.

No. 11–2371.

United States Court of Appeals,First Circuit.

April 11, 2013.

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.

Before LYNCH, Chief Judge, BOUDIN,^* Circuit Judge, and WOODLOCK,^** District Judge.

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, 87 S.Ct. 616, 17 L.Ed.2d 562 (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 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 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 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 administrative proceeding for any evidentiary value that is warranted by the facts surrounding your case.

ACKNOWLEDGEMENT

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 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,––– U.S. ––––, 131 S.Ct. 1833, 179 L.Ed.2d 788 (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, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), the Supreme Court prevented government entities from “us[ing] the threat of discharge to secure incriminatory evidence against an employee.” Id. at 499, 87 S.Ct. 616. 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, 87 S.Ct. 616.

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 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...