U.S. v. Vangates, 01-12967.

• Decision Date: 08 April 2002
• Docket Number: No. 01-12967.,01-12967.
• Citation: 287 F.3d 1315
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Levette VANGATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

287 F.3d 1315

UNITED STATES of America, Plaintiff-Appellee, v. Levette VANGATES, Defendant-Appellant.

No. 01-12967.

United States Court of Appeals, Eleventh Circuit.

April 8, 2002.

Fabienne Elizabeth Leconte, John H. Pelzer, Ruden, McClosky, Smith, Schuster & Russell, Fort Lauderdale, FL, for Defendant-Appellant.

Anne R. Schultz, Miami, FL, Jessica Dunsay Silver, Teresa Kwong, U.S. Dept. of Justice, Washington, DC, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before MARCUS, FAY and WINTER^*, Circuit Judges.

MARCUS, Circuit Judge:

At issue in this appeal is whether certain statements made by a correctional officer are protected under the Fifth Amendment to the Constitution and Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Specifically, appellant Levette Vangates contends that her conviction for deprivation of a prison inmate's constitutional rights under color of law and obstruction of justice should be overturned because the district court erroneously concluded that her testimony from a previous civil trial was admissible in the criminal proceeding. Because we are satisfied that Vangates could not have formed an objectively reasonable belief that her testimony in the civil case was compelled by any state action, we conclude that the district court found correctly that the testimony was not protected by Garrity or the Fifth Amendment, and we affirm the conviction.

I.

On July 20, 1995, Novelette Hamilton was arrested for failing to complete community service pursuant to a shoplifting conviction. After spending a night in the Women's Detention Center, she was transported to the Pretrial Detention Center in Miami, Florida and sentenced to time served. As she was being processed for release, Hamilton was assaulted. After her release, Hamilton reported the assault to the Department of Corrections and said that she had been beaten by three correctional officers whom she later identified as the defendants, Vangates, Brigetta Mas, and Rena Symonette.

Soon thereafter, an Internal Affairs investigation was conducted regarding the incident. As part of the investigation, each officer was interviewed by Sergeant Mary Williams, the investigator assigned to the case. Each officer was required to sign three forms entitled "Subject Employee Notification," "Subject Employee Statement," and "Rights of Subject Officers in Internal Affairs Investigation" prior to her interview. These documents expressly informed each officer that she would be subject to discipline and possibly dismissal if she refused to answer the investigator's questions about her work performance and that her statements to Internal Affairs could not be used against her in a subsequent criminal proceeding, except one for perjury, but that they could be used against her in relation to departmental charges.¹ Williams completed her report in 1996, and the Internal Affairs investigation was closed in November 1999.

In 1996, Hamilton filed a § 1983 civil rights action in the United States District Court for the Southern District of Florida seeking damages stemming from the assault. (Hamilton v. Metropolitan Dade County, Case No. 95-1759-DLG.) She named Metropolitan Dade County and the three officers, in both their individual and official capacities, as defendants in the suit. Pursuant to the terms of its collective bargaining agreement, the County Attorney's office represented the officers, except to the extent each was sued individually for punitive damages. To defend the punitive damages claims, the County hired separate counsel to represent the officers in their individual capacities. The case went to trial in January 1997, and was settled while being presented to the jury.

At trial, the plaintiff introduced into evidence, as an exhibit during Sgt. Williams's testimony, the Internal Affairs investigative file regarding the incident, which contained transcripts and tape recordings of Williams's interviews with the officers. In addition, Williams testified without objection about the interviews and quoted summaries found in the Internal Affairs reports during her testimony. Further, each officer was subpoenaed by the plaintiff to appear as a witness. The officers appeared in uniform and answered questions about the incident and the Internal Affairs investigation. Notably, none of the officers claimed a Fifth Amendment privilege or asserted any immunity in response to the questions posed to them. Each officer denied assaulting Hamilton, and each of them was compensated by the County for the time spent in court.

While the civil suit was pending, Hamilton's attorney filed a civil rights complaint with the Federal Bureau of Investigation. As a result, the FBI opened a criminal investigation, which culminated in a grand jury indictment of the three officers in July 2000.² The indictment specifically charged that the officers, while acting under color of Florida law and "aiding and abetting one another, did willfully assault and beat" Hamilton, thereby depriving her of her constitutional rights in violation of 18 U.S.C. § 242. A second count charged Vangates alone with hindering the investigation, in violation of 18 U.S.C. § 1512(b)(3), by providing a false and misleading statement regarding the unlawful assault of Hamilton.³

Prior to trial, the Government filed a motion in limine seeking permission to use the testimony and exhibits from the civil trial, including the Internal Affairs file, as evidence in the criminal proceeding. On December 13, 2000, a magistrate judge issued a Memorandum and Order granting in part the motion in limine. He denied the motion insofar as it sought admission of the Internal Affairs file itself and any statements or summaries contained therein. He did so because the statements contained in the file were protected by Garrity when the officers gave them, and using the Internal Affairs file in the civil trial did not eliminate that protection.

The magistrate judge found, however, that, unlike the statements contained in the Internal Affairs file, the testimony given by the officers during the course of the civil trial was not protected by Garrity. First, he determined that the immunity granted by the Subject Employee Statement during the Internal Affairs investigation did not "carry over" to statements made during the civil trial. He also concluded that, even if the officers subjectively believed that the statements they made during the civil trial were compelled, there was no "objectively reasonable basis" for that belief. Accordingly, Garrity did not protect the testimony, and it was admissible in the criminal proceeding.⁴

The district court accepted the magistrate judge's determination that the Internal Affairs file could not be used as evidence in the criminal trial. During a pretrial hearing and over the course of the trial, however, the district judge modified the magistrate judge's order. First, he held that, in addition to the Internal Affairs file itself, any civil trial testimony concerning the Internal Affairs investigation or the officers' statements during that investigation could not be introduced at the criminal trial.⁵ He also prohibited any discussion or "reference whatsoever" to Internal Affairs and required that the Internal Affairs investigators be referred to simply as "officers" or "agents." The Government was permitted to reference the investigation, without mentioning Internal Affairs, only insofar as it was required to show how Hamilton filed her excessive force complaint and that Hamilton had identified the defendants in the photograph line-ups. The court permitted all other portions of the civil trial transcript not referencing the Internal Affairs investigation to be used in the criminal trial. Although the court's ruling permitted the civil trial testimony to be used in its case in chief, the Government stated during pretrial proceedings that it intended to use the testimony only for impeachment purposes.

None of the officers testified at the criminal trial, and neither the civil trial testimony nor the Internal Affairs report was introduced as evidence. Indeed, there is no contention that the prosecution deviated in any way from the district court's instructions.⁶

The jury acquitted co-defendants Mas and Symonette on the one charge lodged against them but convicted Vangates on both counts. In this appeal, Vangates argues that her conviction should be overturned because the district court erred in determining that her civil trial testimony was not protected by Garrity. That error, she contends, compelled her not to take the stand in her own defense and, therefore, renders her conviction improper.

II.

We review de novo whether Vangates's statements and testimony in the civil trial were "coerced" within the meaning of Garrity. See Taylor v. Singletary, 148 F.3d 1276, 1282-83 (11th Cir.1998) (stating that "it is well established that voluntariness is a legal, not a factual issue" and then "look[ing] to the record ... to determine whether the totality of the circumstances supports a conclusion of involuntariness") (citation omitted).

We begin our analysis with the familiar admonition that the Fifth Amendment protection against self-incrimination is not self-executing. Rather, as a general rule, to be protected a witness must assert that right specifically. Thus, a witness's answers "are not compelled within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of privilege." Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136, 1142, 79 L.Ed.2d 409 (1984). Further, "if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not `compelled' him to incriminate himself." Id. (quoting Garner v. United States, 424 U.S. 648, 654, 96 S.Ct. 1178, 1182, 47 L.Ed.2d 370 (1976)). An exception to this rule arises when...