U.S. v. Okwumabua, 1105
| Decision Date | 11 September 1987 |
| Docket Number | D,No. 1105,1105 |
| Citation | 828 F.2d 950 |
| Parties | 23 Fed. R. Evid. Serv. 1048 UNITED STATES of America, Appellant, v. Benjamin OKWUMABUA and Afro-Lecon, Inc., Respondents. ocket 87-1046. |
| Court | U.S. Court of Appeals — Second Circuit |
Denise E. O'Donnell, Asst. U.S. Atty., Buffalo, N.Y. (Roger P. Williams, U.S. Atty., W.D.N.Y., Kathleen M. Mehltretter, Asst. U.S. Atty., Buffalo, N.Y., of counsel), for appellant.
Joseph M. La Tona, Buffalo, N.Y. (Condon, La Tona, Pieri, & Dillon, P.C., Buffalo, N.Y., of counsel), for respondents.
Before OAKES, NEWMAN, and PIERCE, Circuit Judges.
Appellant, United States of America, appeals from a portion of an order entered on December 29, 1986, in the United States District Court for the Western District of New York, Elfvin, Judge, granting respondent Okwumabua's motion to suppress statements made by him on June 6, 1985 to a special agent of the General Services Administration ("GSA") Inspector General's Office. On January 28, 1986, defendant Benjamin Okwumabua and his corporation, defendant Afro-Lecon, Inc. ("Afro-Lecon"), were indicted for six counts of making The sole question on appeal is whether Benjamin Okwumabua's fifth amendment privilege against compelled self-incrimination bars the admission of incriminating statements made in a non-custodial setting to a special agent of the United States. For the reasons set forth below we hold that under the circumstances of this case the fifth amendment privilege does not bar the admission of the statements in question, and we reverse.
false statements to the United States Small Business Administration ("SBA") in violation of 18 U.S.C. Sec. 1001, one count of filing a false claim with GSA in violation of 18 U.S.C. Sec. 287, and one count of mail fraud in violation of 18 U.S.C. Sec. 1341. Defendants moved to suppress statements and documents obtained from them. Hearings were held on those motions on May 20 and 21, and September 2 and 16, 1986. The district court denied the portions of the motion seeking the suppression of documents and the suppression of statements made by the defendant Benjamin Okwumabua in January 1985, and on June 4 and 12, 1985. Statements made on June 6, 1985 to Special Agent Garrett Howard of the GSA Inspector General's Office were ordered suppressed. A notice of appeal was filed by the government on January 27, 1987.
This case arose from a contract between the corporate defendant, Afro-Lecon, located in Jamestown, New York, and the SBA. Afro-Lecon was awarded a "multi-million dollar" GSA contract for the production of filing cabinets, which was subsequently terminated by the government. A contract provision authorized Afro-Lecon to submit a claim for "[a]ll costs" incurred in connection with the project. In October 1983, Afro-Lecon submitted a final claim in excess of $1 million for its costs of performance through the termination date. By December 1984, the GSA had denied the claim and Afro-Lecon had appealed to the GSA's Contract Board of Appeals.
Due to Afro-Lecon's claim submissions and its initiation of administrative litigation, the GSA exercised its right under the contract to audit the claim. George Pavel, an auditor in the GSA Inspector General's Office, began the audit in January 1985 with an on-site visit to Afro-Lecon's office. One portion of the claim was a request for payment of direct labor costs of $984,000. During the audit, Pavel requested documentation to support this labor costs claim. In January 1985, Pavel was given a set of 26 weekly payroll summaries which were all certified to the SBA as being costs incurred in connection with the GSA contract. Pavel reviewed the payroll summaries and copied information from them onto his audit workpapers. He was not satisfied with this support documentation and requested access to time records or other records that would validate the payroll summaries and the claim. However, no other records were made available in January 1985. At some point in January 1985 Pavel spoke with Lindsay Simmons, attorney for Afro-Lecon, regarding access to financial statements which was provided.
During May 1985, Pavel received a phone call from Okwumabua in reference to additional records that were available for his review. Pavel returned to Jamestown on June 3, 1985 and asked to see the payroll summaries again. He was provided with payroll summaries that were different from the summaries given to him in January. This second set, hereinafter referred to as the June set, were also certified to the SBA. Pavel did not confront anyone about the two sets of payroll summaries, but he requested and received a copy of the June set of records.
On June 4 or 5, Pavel reported to his supervisor, Sayed Emara, that he had received two different sets of records to support the direct labor costs claim. On June 5, Pavel was informed that his supervisor and Garrett Howard, a special agent of the Inspector General's Office, would be coming to Afro-Lecon to investigate further. Sometime prior to June 6, 1985, after talking to GSA audit personnel, Agent Howard opened a file to investigate the possibility that a criminal violation had occurred.
On June 5, 1985, Agent Howard telephoned the United States Attorney's Office Howard, Pavel, and Emara met with Okwumabua for one hour on June 6, 1985, in Okwumabua's office. Howard was introduced as a member of the Inspector General's Office. He was not identified as a special agent nor was Okwumabua told that allegations of fraud or false statements were being investigated. No threats or promises were made to Okwumabua and he was not restrained, confined, or placed under arrest at any time. Because the interview was non-custodial in nature, Miranda warnings were not given. Howard interviewed Okwumabua regarding the June set of payroll summaries which had been provided to Pavel.
in Buffalo and spoke with Assistant United States Attorney ("AUSA") Mehltretter about the Afro-Lecon investigation. He informed the AUSA that he would be in Buffalo on June 7 and arranged to meet with her on that date. During their telephone conversation, Howard told the AUSA that he was going to be in Jamestown on June 6 to investigate the possibility of false statements in the claim submitted by Afro-Lecon on its GSA contract. In response to an inquiry by Howard, the AUSA told him that when he investigated the claim he was not required to give Miranda warnings but that he should not be deceptive with respect to his identification.
On June 7, 1985, Howard, Pavel, Emara, and AUSA Mehltretter met in the United States Attorney's Office in Buffalo. Howard and Pavel informed the AUSA of the nature of the claim and about the two sets of payroll summaries that had been given to Pavel. The AUSA requested that further investigation be conducted to determine what records the company might have from which labor costs could be determined. Interviews of the company's accountant and past employees were discussed. AUSA Mehltretter suggested that Pavel continue his audit by analyzing the workpapers that he had prepared. After the meeting of June 7, 1985, Pavel returned to Jamestown alone and continued his audit at Okwumabua's office. Agent Howard met with the AUSA on July 22, 1985. Shortly before this meeting, Pavel was instructed to discontinue his audit and to assist Howard. Thereafter, several grand jury subpoenas were issued.
On January 28, 1986, Okwumabua and Afro-Lecon were indicted for violations of 18 U.S.C. Secs. 287, 1001, and 1341. Thereafter, defendants moved to suppress statements and documents obtained from them. The district court denied the portions of the motion seeking the suppression of documents and the suppression of statements made by Okwumabua in January 1985, and on June 4 and 12, 1985. However, the district court granted the motion with respect to the statements made by Okwumabua to Howard on June 6, 1985. In doing so, the district judge stated that "[t]his Court is not approbatory of the prosecution's utilization of the ploy of having a criminal investigator 'sit in' on and participate in a non-criminal conference or interview when criminal prosecution was, as here, eminently predictable and without advising the 'target' of the investigator's role and purpose." We reverse.
The government's sole contention on appeal is that the district court erred in suppressing statements made by the defendant Okwumabua to Agent Howard on June 6, 1985. In support of its position, the government asserts that there were no affirmative misrepresentations by the three agents and that Okwumabua's statements were voluntary. "When such a claim [of involuntariness] is raised, it is the duty of an appellate court ... 'to examine the entire record and make an independent determination of the...
To continue reading
Request your trial
-
United States v. Rivera
...of questioning, the defendant's physical and mental capabilities, and the government's method of interrogation.” United States v. Okwumabua, 828 F.2d 950, 953 (2d Cir.1987) ; see Deskovic v. City of Peekskill, 894 F.Supp.2d 443, 457–58 (S.D.N.Y.2012). The government must prove that a confes......
-
Robinson v. Stegall
...the defendant's physical and mental capabilities, and the governing method of interrogation." Id., quoting, United States v. Okwumabua, 828 F.2d 950, 953 (2d Cir. 1987). "Only if the totality of the circumstances `reveals both an uncoerced choice and the requisite level of comprehension may......
-
U.S. v. Braxton
...of the nature of the crime being investigated unless the suspect asks and failing to tell would be misleading); United States v. Okwumabua, 828 F.2d 950, 953 (2d Cir.1987) ("Silence by a government agent can only be equated with an affirmative misrepresentation where there is a legal or mor......
-
US v. Garcia
...Green v. Scully, 850 F.2d 894, 901 (2d Cir.), cert. denied, 488 U.S. 945, 109 S.Ct. 374, 102 L.Ed.2d 363 (1988); United States v. Okwumabua, 828 F.2d 950 (2d Cir.1987), cert. denied, 484 U.S. 1063, 108 S.Ct. 1022, 98 L.Ed.2d 987 (1988). Voluntariness "cannot be taken literally to mean a `kn......
-
The Fifth Amendment And Civil Tax Enforcement
...(5th Cir. 1977). 192 F.3d 535, 542 (6th Cir. 1999). See Groder v. United States, 816 F.2d 139 (4th Cir. 1987). United States v. Okwumabua, 828 F.2d 950, 953 (2d Cir. 1987) (quoting United States v. Serlin, 707 F.2d 953, 956 (7th Cir. United States v. Peters, 153 F.3d 445, 441 (7th Cir. 1998......