U.S. v. Perelman

Decision Date19 August 2010
Docket NumberCase No. 2:09-CR-00443-KJD-LRL
Citation737 F.Supp.2d 1221
PartiesUNITED STATES of America, Plaintiff, v. David M. PERELMAN, Defendant.
CourtU.S. District Court — District of Nevada

Roger Yang, U.S. Attorney's Office, Las Vegas, NV, for Plaintiff.

Rene Valladares, Federal Public Defender, Las Vegas, NV, for Defendant.

ORDER

KENT J. DAWSON, District Judge.

Currently before the Court is Defendant's Motion to Suppress Involuntary Statements (# 18). The Government filed a Response (# 20), to which Defendant filed a Reply (# 23). The Magistrate Judge issued a Report and Recommendation (# 42) on Defendant's Motion, recommending that the Court deny Plaintiff's Motion to Suppress. Defendant filed Objections (# 46) to the Magistrate Judge's Report and Recommendation, to which the Government filed a Response (# 48).

Additionally before the Court is Defendant's Supplemental Motion to Suppress (# 28). The Government filed a Response (# 30), to which Defendant filed a Reply (# 31). The Magistrate Judge issued a Report and Recommendation (# 38), recommending that the Court deny the Supplementary Motion to Dismiss. Defendant filed Objections (# 39) to the Magistrate Judge's Report and Recommendation, to which the Government filed a Response (# 40).

Also before the Court is Defendant's Motion to Dismiss Count Two of the Indictment (# 13). The Government filed a Response (# 19), to which Plaintiff filed a Reply (# 24). The American Civil Liberties Union ("ACLU") also filed a brief in Reply (# 25) as amicus curaie, on behalf of Plaintiff. The Magistrate Judge issued a Report and Recommendation (# 41), to which Plaintiff filed Objections (# 50). The Government filed a Response (# 51), to which Plaintiff filed a Reply (# 54). Additionally, before the Court is the Notice of Ninth Circuit Case (# 58), and Supplemental Memorandum (# 60) filed by the Government, and Defendant's Supplement (# 59).

The Court has considered each Motion, Response, Reply, and the amicus brief, together with the Magistrate Judge's Reports and Recommendations, Defendant's Objections, Responses, Reply, and all supplemental information and conducted a de novo review of the record in this case in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 1-4. De novo review means the court must consider the matter anew, the same as if it had not been heard before and as if no decision previously had been rendered. Ness v. Commissioner, 954 F.2d 1495, 1497 (9th Cir.1992). Thus, although the Court need not hold a de novo hearing, the Court's obligation is to arrive at its own independent conclusion about those portions of the Magistrate Judge's Report and Recommendation to which objections have been made. United States v. Remsing, 874 F.2d 614, 617 (9th Cir.1989).

Having read and considered the foregoing, and having conducted a de novo review, the Court determines that the Magistrate Judge's Report and Recommendations ( 42, 38, 41) are accepted and adopted in whole. Particularly, the Court finds that the facts and issues presented in this case are distinguishable from the facts and issues involved in the recent Ninth Circuit decision in U.S. v. Xavier Alvarez, 617 F.3d 1198 (9th Cir.2010). Specifically, the Alvarez decision addresses the constitutionality of sections (b) and (c) of the Stolen Valor Act, 18 U.S.C. § 704, which impose criminal penalty "for the mere utterance or writing" of what is or may be perceived as a representation that an individual has been awarded a military decoration or service medal. ( Id., at 1199-1200). The Defendant in this case however, was indicted under sections (a) and (d) of the Statute, for the unauthorized wearing or use of a military or service medal—which was not addressed by the Ninth Circuit in Alvarez.

Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to

Suppress Involuntary Statements (# 18), Defendant's Supplemental Motion to Suppress (# 28), and Defendant's Motion to Dismiss Count Two of the Indictment (# 13) are DENIED.

IT IS FURTHER ORDERED that the Magistrate Judge's Report and Recommendations ( 42, 38, 41) are accepted and adopted in whole.

IT IS FURTHER ORDERED that Plaintiff's Objections to the Magistrate Judge's Report and Recommendation (# 46, 39, 50) are DENIED.

MOTION TO SUPPRESS INVOLUNTARY STATEMENTS (# 18)
REPORT & RECOMMENDATION

LAWRENCE R. LEAVITT, United States Magistrate Judge.

The defendant, David M. Perelman, is under indictment on one count of Theft of Government Property in violation of 18 U.S.C. § 641 and one count of Unauthorized Wearing of a Purple Heart in violation of 18 U.S.C. § 704(a) and (d). The matter before the court is Perelman's Motion to Suppress Involuntary Statements (# 18), in which he contends that statements he made to Special Agents of the Department of Veteran Affairs Office of the Inspector General during an interview were involuntary, primarily on grounds that the agents deceptively failed to disclose that they were conducting a criminal investigation into his claims to be a Purple Heart recipient and his status as a disabled veteran and because his use of prescription medications, combined with his PTSD, deprived him of the capacity to competently waive his rights. Also under submission is the government's Opposition (# 20), and defendant's Reply (# 23). An evidentiary hearing was held on this issue on March 1, 2010. Having considered the motion, opposition, reply, and the testimony offered at the evidentiary hearing, the court submits this Report and Recommendation.

THE EVIDENCE

Based on the testimony adduced at the evidentiary hearing and the exhibits attached to the parties' papers, the court finds the following facts have been established by a preponderance of the evidence. At approximately 9:00 a.m. on July 10, 2009, Special Agent Gregory Fitzgerald of the Department of Veteran Affairs Office of the Inspector General ("VAOIG") contacted Perelman at his place of employment, the VA's Northwest Clinic. Perelman had been employed as a clerk with the VA Southern Nevada Healthcare System for approximately three years. SA Fitzgerald identified himself as a special agent with the VAOIG and stated that he was conducting an investigation and wanted to speak with Perelman. Perelman agreed to meet SA Fitzgerald at his office at the East Clinic for an interview at 10 a.m.

Concerned about the interview, Perelman went to speak to his union steward, Gregory Blackburn in Blackburn's office. Blackburn had previously represented Perelman in a union matter. Blackburn testified that Perelman seemed anxious and was seeking representation from Blackburn because he had to go speak with an agent from the VAOIG. Blackburn called the agent, who was later identified as SA Fitzgerald, and asked him why he needed to speak with Perelman. Blackburn specifically inquired whether it was a criminal matter. The agent told Blackburn that it was. Blackburn testified, "I thanked him and I hung up the phone and then I turned to Mr. Perelman and I told him I can't help you because it's a criminal investigation." Blackburn explained that he could not accompany Perelman because it was a criminal matter, and the union does not get involved in criminal matters. Blackburn then advised Perelman, "if hegot there and felt uncomfortable, he should thank them and walk out. I said that's what I would do."

After leaving Blackburn's office, Perelman drove himself to the East Clinic. The drive was approximately thirteen miles. SA Fitzgerald met Perelman in the reception area of the clinic and escorted him through the clinic to a conference room. The conference room had a second door which led to the outside and had windows to the outside. The room was approximately fifteen feet by fifteen feet and contained one large rectangular table with enough seating for ten people. Neither conference room door was locked. Special Agent Michael Morse joined SA Fitzgerald and Perelman in the conference room. Both agents presented their credentials. SA Morse was wearing a suit jacket, slacks, and white dress shirt. SA Fitzgerald was dressed in a suit and tie. Neither agent's sidearm was visible.

After checking Perelman's identification, SA Fitzgerald asked him to take a seat. He then explained to Perelman that he was a special agent with the VAOIG, "just like any other special agent he had heard of from another agency such as the FBI, ATF, DEA, except that my investigations involve criminal matters affecting the VA." He further explained that Perelman was there voluntarily, that he was not under arrest, that he did not have to speak to the agents, and if he did speak with the agents he could stop and leave at any time. Perelman stated that he understood and was willing to speak with the agents.

SA Fitzgerald explained that he and SA Morse investigate various types of crime, including false claims submitted to the VA and that's what they wanted to talk to Perelman about. The agents produced a Garrity federal employee advisement of rights form. SA Fitzgerald read the form to Perelman and gave it to Perelman to read. The Garrity form states: "You are being contacted to solicit your cooperation in an official investigation regarding misconduct or improper performance of official duties.... The matter under investigation could constitute a violation of law that could result in the criminal prosecution of the responsible individuals." The form provides a blank to fill in what "This inquiry concerns," in which the agents wrote "False Claims." Beneath this section is typed:

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 both in 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,
...

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2 cases
  • U.S. v. Swisher
    • United States
    • U.S. District Court — District of Idaho
    • July 28, 2011
    ...dismiss the indictment charging him with violating § 704(a) by the unauthorized wearing of a Purple Heart. See United States v. Perelman, 737 F.Supp.2d 1221 (D.Nev. Aug. 19, 2010). The court found that the facts and issues of the case were distinguishable from the facts and issues in Alvare......
  • Jackson v. Trinity Universal Ins. Co., CV 10-05-H-DWM
    • United States
    • U.S. District Court — District of Montana
    • September 15, 2010
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