United States v. Ortino, Case No. 19-cr-00142-WHO-1
| Decision Date | 03 December 2019 |
| Docket Number | Case No. 19-cr-00142-WHO-1 |
| Court | U.S. District Court — Northern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JONATHON ORTINO, Defendant. |
Re: Dkt. No. 30
Defendant Johnathon Ortino, a Department of Homeland Security (DHS) employee with Customs and Border Patrol (CBP), moves to suppress statements he made to the DHS Office of Inspector General ("DHS OIG") because DHS OIG officials interviewed him without advising him that he could assert his right to remain silent without being penalized by termination or discipline in accordance with Garrity v. New Jersey, 385 U.S. 493 (1967). They did advise him of his Miranda rights, but Ortino argues that both Miranda and Garrity warnings were required.
I find that Ortino's belief that he was compelled to answer DHS OIG's questions under threat of termination is not objectively reasonable. DHS Management Directive 810.1 prohibits CBP from disciplining an employee who refuses to cooperate with DHS OIG when the employee is the subject of an investigation that could lead to criminal prosecution. Ortino knew that he was facing criminal consequences prior to the interview: he surrendered his service weapon, was placed under arrest, and received his Miranda warning. The government did not implicitly or explicitly compel him to answer questions. His motion to suppress is DENIED.
Ortino was a DHS CBP officer and an elected president of the National Treasury Employees Union ("Union") Chapter 165. Superseding Indictment [Dkt. No. 13] ¶ 1. As Union president, he had an obligation to file the Union's Form LM-3 Labor Organization Annual Report ("Form LM-3") with the Department of Labor ("DOL"). Id. ¶ 2. According to the Superseding Indictment, Ortino used the Union's bank account for his own private expenses and made online transfers from it to his and his other associates' private bank accounts. Id. ¶ 17. He allegedly filed a false Form LM-3 in 2014, 2015, and 2016 for the Union that concealed this activity. Id. ¶ 10.
Another CBP officer defeated Ortino in the Union's presidential election on September 12, 2017. Opposition to Motion to Suppress ("Oppo.") [Dkt. No. 33] 3. According to the government, this led to Ortino's confrontations with Anad Muni, the newly-elected Union president, and Bryan Vann, the Union's former-vice president while he was president. Id. Ortino allegedly threatened Vann at a bar, shoved Vann to provoke a fight, and when Vann refused to hit him, called Vann a racial slur. Id. CBP issued an internal "memorandum of instruction," informing Ortino that his confrontation with Vann was unacceptable and should not be repeated. Id.; Declaration of Richard DiNucci in Support of Opposition ("DiNucci Decl.") [Dkt. No. 33-2] ¶ 2.
Ortino's supervisor, Port Director Richard DiNucci, claims that Ortino told him that he was concerned about losing work opportunities because of his confrontation with Vann. DiNucci Decl. ¶ 3. DiNucci contends that Ortino asked for a meeting several times, and that DiNucci coordinated the date, time and location of the meeting with DHS OIG Special Agent Janet Roberson because he knew that she also wanted to speak with Ortino. Id. ¶¶ 4-5.
Ortino asserts that he did not initiate the meeting request and rather, on March 31, 2019, DiNucci directed him to appear for a meeting on April 2, 2019 to "get the air cleared on the Vann thing." Declaration of Johnathon Ortino in Support of Motion to Suppress ("Ortino Decl.) [Dkt No. 32] ¶ 3 & Ex. A (email exchange between Ortino and DiNucci). Ortino asked if there was anycause for concern and whether he should bring a union representative. Id. DiNucci replied, Id. Ortino notes that this email exchange occurred just a few days after the government obtained its initial indictment under seal, charging Ortino with three counts of false statement. Indictment [Dkt. No. 1].
Upon his arrival, Ortino claims that DiNucci informed him that the real reason he was there was to talk to DHS OIG and DOL agents. Ortino Decl. ¶ 4. He responded that he did not want to talk to the agents that day because he had to take care of other things before leaving for vacation the next day. Id. He states that he requested rescheduling the meeting to the following week but DiNucci told him that he "had to talk to the agents that day, and that [he] could not leave." Id. DiNucci told him to "be honest" with the agents.
DiNucci remembers the conversation somewhat differently. He says that he "explicitly told [Ortino] that he did not have to talk if he did not want to do so and that it was his choice whether or not to talk to the OIG." DiNucci Decl. ¶ 10. He also told him that "if he did decide to talk he should tell the truth and that he should get a lawyer if he wanted one." Id. He contends that he never told Ortino that he had to cooperate with DHS OIG and never threatened to punish Ortino if he did not cooperate with DHS OIG. Id. ¶ 9.
Both parties agree on the sequence of events that followed. DiNucci asked Ortino to surrender his service weapon and took him to a different room, where three agents were waiting. Ortino Decl. ¶ 5; DiNucci Decl. ¶ 8. The three agents told Ortino he was under arrest and read him his Miranda rights. Id. DHS OIG Special Agent Janet Roberson and DOL Special Agent Laura Lawrence then arrived and began questioning him. Id.
Ortino claims that Roberson also read him at least part of his rights and began questioning him while Lawrence took notes on a laptop computer and occasionally asked questions. Ortino Decl. ¶ 5. At some point during the questioning, Roberson asked Ortino to sign a Miranda waiver, which he did. Id. That form advised Ortino that he had the right to remain silent and the right to an attorney, and that he may waive both of these rights and "answer questions or make a statementwithout consulting an attorney if you so desire." Declaration of Christina E. Urhausen in Support of Motion to Suppress ("Urhausen Decl.") [Dkt. No. 31], Ex. I (Miranda waiver signed by Ortino on April 2, 2019). The agents questioned him about his employment history, his activities as Union president, his banking habits, an item-by-item review of expenses reflected in the union bank account, withdrawal and transfers, debit card purchases, the process of preparing forms for DOL and other topics. Mot. 7; Urhausen Decl., Ex. J (DOL interview report of Ortino).
Roberson states that when Ortino signed the Miranda waiver, he told both her and Lawrence that he "just wants to be honest" and to explain everything. Declaration of Janet Roberson in Support of Opposition ("Roberson Decl.") [Dkt. No. 33-3] ¶ 4. She also asserts that she and Lawrence told him "several times that he did not have to continue his post-arrest interview or answer [their] questions and that he could call an attorney," but he "always voluntarily chose to continue his interview." Id. ¶ 7. She contends that Ortino never asked if he would face any employment consequences. Id. ¶ 8. Ortino allegedly said that he was "ashamed of what happened and why it happened" and that the wire transfers from the Union account were his "fault" not the other CBP employees. Id. ¶¶ 9-10. He allegedly pleaded, "You guys have no idea what it feels like to go to bed every night thinking about this and waking up every morning thinking about this." Id. ¶ 10.
The agents did not give him the Garrity warning. They did give Garrity warnings to four other CBP employees interviewed about this matter. See Urhausen Decl., Exs. B, D-F (DOL interview reports of Vann, Kobashigawa, Le, and Papageorge). Ortino notes that the agents arrived late to his interview because they were interviewing another CBP employee who received a Garrity warning. Id., Ex. C (DOL interview report of Lewin, dated April 2, 2019).
The Garrity form that the agents allegedly used for other CBP employees comes from the DHS OIG Special Agent Handbook. Urhausen Decl., Ex. G (DHS OIG Special Handbook, 2007-2017) (hereinafter "Handbook") at Chapter 10, Page 1).1 The "INV Form 27, Federal Employee Warning Form (Garrity)" expressly warns a DHS employee being questioned that:
Although you would normally be expected to answer questions regarding your official duties, in this instance you are not required to do so. Your refusal to answer solely on the grounds that your answer may tend to incriminate you, will not subject you to disciplinary action.
Handbook at Chapter 10, Page 14, Exhibit 10-3. Ortino argues that the agents were required to provide him with a Garrity warning because the Handbook states that "all employee subjects will initially be provided with Garrity warnings." Mot. 6.
The Handbook recognizes that "DHS employees are generally required to assist investigators in the performance of their official duties," and "can be compelled to cooperate" under the Inspector General Act, 5 U.S.C.A., App. 3, the DHS Management Directive 810.1, and the Secretary's April 8, 2008 memorandum on cooperation with the OIG. Handbook at Chapter 10, Page 1. However, the DHS Management Directive states that employees will "[b]e subject to disciplinary action for refusing to provide documents or information or to answer questions posed by investigating officials . . . unless questioned as the subject of an investigation that can lead to criminal prosecution." Urhausen Decl., Ex. L (copy of DHS Management Directive 810.01 at Section V.B.5) (emphasis added).
The Handbook also advises that ...
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