U.S. v. Friedrick

• Decision Date: 11 March 1988
• Docket Number: No. 87-3001,87-3001
• Citation: 268 U.S.App.D.C. 386,842 F.2d 382
• Parties: UNITED STATES of America, Appellant, v. Robert S. FRIEDRICK.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 382

842 F.2d 382

268 U.S.App.D.C. 386

UNITED STATES of America, Appellant, v. Robert S. FRIEDRICK.

No. 87-3001.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 24, 1987.

Decided March 11, 1988.

Appeal from the United States District Court for the District of Columbia (Criminal No. 86-00188-01).

Ann K.H. Simon, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Mark J. Biros, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.

William D. Beyer, Cleveland, Ohio (Appointed by the Court), with whom James P. Murphy, was on the brief, for appellee.

Before STARR and BUCKLEY, Circuit Judges, and McGOWAN, ^* Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

The Government appeals from a determination by the District Court that certain statements made by an FBI agent in the course of interviews conducted by Justice Department lawyers are inadmissible against him in a prosecution for making false statements in previous interviews. Following a thorough evidentiary hearing, United States District Judge George Revercomb concluded that, in view of the totality of the circumstances, the Government obtained the statements from the FBI agent under compulsion, thus rendering them inadmissible under settled principles of Fifth Amendment law. We agree and affirm.

I

In 1982, the Government launched an investigation into suspected corruption in the International Brotherhood of Teamsters. Jackie Presser, an official of Teamsters Local 507 in Cleveland, Ohio, and since 1983 president of the International, was suspected of participating in a scheme to "employ" persons who in reality rendered no services to the union, and to convert union funds paid to those "phantom employees." In connection with the investigation, the Government obtained convictions in 1983 of Jack Nardi and Allen Friedman, two "employees" who performed no services for the union. The investigation continued into 1984, with the Government focusing on the activities of Presser and other officials of Local 507.

The investigation was complicated by the fact that Presser, unbeknownst to prosecutors conducting the investigation, had for many years been an informant for the Federal Bureau of Investigation in Cleveland. The FBI relationship began with Agents Patrick Foran and, later, Martin McCann serving as Presser's "handling agents"; finally, Special Agent Robert S. Friedrick, the defendant in this case, stepped into the "handler" role. At the time of the investigation, Friedrick served, as had his predecessors McCann and Foran, in the capacity of supervisor of the FBI's Organized Crime Unit in Cleveland.

Over time, it became increasingly apparent to Justice Department investigators that Presser was connected in some fashion with the FBI's Cleveland office. To explore the nature of this relationship, DOJ investigators met with FBI officials in Cleveland on July 3, 1984. McCann, Foran, and Friedrick, as well as several Government investigators, attended the meeting. The meeting, which was informal in nature, took place in the living room of Foran's in-laws. At that time, there was no reason to suspect that FBI personnel had been involved in illegality. Accordingly, no oaths were administered, and no transcript taken.

At this meeting, the investigators learned that Presser had indeed served as an FBI informer for many years. The investigators specifically asked the three agents whether Presser had ever been authorized by FBI personnel in Cleveland to employ "no-shows." In response, Friedrick stated that he had personally authorized the hiring of one person, George Argie; Friedrick later maintained that Foran was in fact the agent who authorized hiring Argie. None of the three agents, however, admitted to having authorized the hiring of the previously convicted Jack Nardi or Allen Friedman. As a result, the Government's investigation into Presser's activities continued.

After nearly a year had passed, the Justice Department was preparing to indict Presser for several offenses arising out of his role in the employment of Nardi and Friedman. In June 1985, David Margolis, the head of the Department's Organized Crime and Racketeering Section, held meetings with John Climaco, Presser's attorney, to discuss Presser's status. In the course of those meetings, Climaco informed Margolis that Presser had been authorized by his FBI "handling agents" to employ "phantom employees." ¹ Soon after these meetings, on June 20, 1985, Friedrick (and his predecessors, Foran and McCann) were interviewed in Cleveland to explore any possible basis for Climaco's claims. At this interview, which like the July 3, 1984 meeting was not conducted under oath, Friedrick stated that he had personally told Presser not to remove Friedman from the union payroll even though Presser had wanted to do so.

Six days later, on June 26, 1985, Friedrick, under orders from his superiors, appeared at FBI headquarters in Washington, D.C., to review and sign a statement reflecting what he had related at the June 20 interview in Cleveland. By this time, the FBI had decided to pursue an internal administrative Form FD-645, and the immunity to which it relates, is central to the issues presented in this case; we therefore pause in the narrative of events concerning Mr. Friedrick to describe the contents of that form and the procedures normally followed in executing it. We take cognizance as well of another document, Form FD-644, which also bears on our analysis. Briefly stated, FBI regulations provide that Bureau employees interviewed pursuant to formal internal administrative inquiries or investigations are to be presented with either of two forms, FD-644 or FD-645. See FBI Manual of Administrative Operating Procedures (MAOP) Secs. 13-6.1, 13-6.2. Form FD-644 is captioned "Warning and Assurance To Employee Requested To Provide Information On A Voluntary Basis." As the caption suggests, Form FD-644 indicates to the prospective interviewee that his statement is voluntary and that his refusal to answer questions cannot result in adverse employment action. Form FD-644 goes on to provide that the Government is free to use any statements by the employee against him in any subsequent criminal prosecution or agency disciplinary proceeding.

                inquiry into the circumstances surrounding the FBI's "authorizations."    In that inquiry, Justice Department lawyers decided to grant Friedrick transactional immunity from prosecution for his actions during the Presser affair. 2   Thus, before requiring Friedrick to sign his statement, the investigators presented him with a Form FD-645
                

Form FD-645, in contrast, is entirely different. It is captioned "Warning and Assurance To Employee Required To Provide Information." Under Form 645 procedures, the FBI may require an employee to provide information, and it may visit sanctions upon an employee, including dismissal, if he refuses to submit to questioning. Since the Form 645 procedures are compulsory, the Government may not use an employee's statements against him in any subsequent criminal prosecution (though it may sanction an employee administratively based on his answers). Under Form 645 procedures, not only may the Bureau require an employee to provide information, but it may insist that the employee be completely truthful. The only criminal offense to which the use immunity conferred under Form 645 procedures does not reach is for giving false statements to federal officials, an offense proscribed by 18 U.S.C. Sec. 1001 (1982), ³ the familiar statute under which Friedrick has been indicted in this case.

With this brief background, we resume the narrative of events. Before the June 26, 1985 meeting at FBI headquarters in Washington, D.C., the FBI, jointly with the Justice Department, elected to immunize Friedrick and to focus the administrative investigation on his two predecessors, Foran and McCann. Accordingly, on June 26 Friedrick was presented with a Form 645, which by its terms required Friedrick to answer the questions propounded to him. At this meeting, Friedrick for the first time stated under oath that Presser had indeed been authorized by the FBI to employ "no-shows."

Less than a month later, the Government publicly declined prosecution of Presser. In addition, the Government thereafter acquiesced in the voiding of Nardi's and Friedman's convictions. These widely publicized actions were taken, in the main, by virtue of Friedrick's assertions that Presser's conduct had enjoyed FBI approbation.

Unbeknownst to the Justice Department, its understanding that Presser had been authorized by the FBI to employ "phantom employees" was entirely in error. That The administrative inquiry, begun in June 1985, was soon upgraded to an internal criminal investigation focusing on potential prosecutions of Foran and McCann for obstruction of justice. In conjunction with the now considerably more formal investigation, Government investigators decided that further interviews with Friedrick were needed to explore inconsistencies between his (and his colleagues') July 1984 and June 1985 statements concerning the authorizations given to Presser. Accordingly, Ralph Regalbuto, a Special Agent in the FBI's Office of Professional Responsibility (FBI/OPR), informed Richard Schwein, Assistant Special Agent in Charge of the Cleveland office (and one of Friedrick's two immediate superiors), that Friedrick was to report to Washington on August 12, 1985. Schwein ordered Friedrick to appear, which Friedrick did.

misapprehension was the product of a calculated lie by Friedrick, who persuasively maintained to investigators that there had been authorizations when in fact there were none. This tangled web of deception, which Friedrick began to weave in Cleveland in July 1984, and which ensnared the Government by virtue of Friedrick's statements in June 1985, soon began...