The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT AND GRANTING MOTION FOR OTHER REMEDY
On February 20, 2009, defendant Richard Michael Welton was charged in a two-count indictment with receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1), and possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). Trial is set to commence on August 4, 2009. On June 29, 2009, Welton filed a motion to suppress oral statements he made to FBI agents on September 18, 2008, when the agents interviewed him at his workplace and residence, Sornoso Auto Repair in Covina, California.*fn1 Welton asserted that the statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). He also argued that the statements were not voluntarily made and thus violated his Fifth Amendment rights.*fn2 The government filed opposition,*fn3 and the court denied the motion on July 20, 2009, concluding that the evidence showed the government did not use unconstitutionally coercive tactics to obtain statements from Welton.*fn4
On July 22, 2009, the government produced redacted copies of email communications between AUSA Anthony Scarpelli and FBI Special Agent Stephanie Benitez to defense counsel. Benitez was the agent who had obtained the statements from Welton and who testified at the hearing on the motion to suppress. Scarpelli is an attorney in the United States Attorney's Office for the District of Columbia. Scarpelli and Benitez were involved romantically between January and March 2009. On July 23 and 24, at defense counsel's request, the government produced unredacted copies of the email communications.*fn5 On July 27, 2009, defendant requested that the court conduct an evidentiary hearing to determine the nature and scope of Scarpelli's communications with Benitez regarding her testimony in this case.*fn6 The government did not object, and the court held a hearing on July 29, 2009, at 3:30 p.m.*fn7
The facts surrounding Welton's statements to Benitez are set forth fully in the court's order denying defendant's motion to suppress and are incorporated herein by reference. In the motion, defendant challenged the voluntariness of the statements he had made on the basis that psychological coercion by Benitez -- i.e., manipulation of his feelings regarding sexual abuse he had suffered as a child -- induced him to speak. Benitez testified, in a declaration and at the evidentiary hearing, that she felt sorry for Welton if he had been abused as a child, and that she did not mention possible prior abuse as an interview tactic. She stated that expressing sympathy for any past abuse he may have suffered was a way of relating to Welton, and putting him at ease.*fn8
The evidentiary hearing on Welton's motion to suppress took place on July 13, 2009. Prior to the hearing, on June 11, 2009, Benitez had emailed Scarpelli with a question about Miranda rights; in the email, she referenced a case in which she had recently testified, and in which a district judge had suppressed a statement made by a suspect before he was given Miranda warnings. Benitez said that she had recently learned that "softening up" a suspect before giving him Miranda warnings could result in suppression of the suspect's confession, and expressed concern because Welton's attorney had alleged that she compelled Welton's confession through "softening." Benitez requested Scarpelli's thoughts on the matter.*fn9
Later the same day, Scarpelli sent Benitez an email promising to look into the Miranda issue, and stating that "most judges would frown upon 'softening up' defendants."*fn10 Benitez responded: "One man's softening up is another man's [rapport] building."*fn11 Several hours later, Scarpelli sent Benitez an email. He stated that while her interview technique was "efficient and productive," a majority of the United States Supreme Court "didn't like it." Scarpelli referenced the Court's decision in Missouri v. Siebert, 542 U.S. 600 (2004), and noted that "[b]ased on what a defendant says, it [might] make the entire confession inadmissible."*fn12
Welton filed his motion to suppress eighteen days after this email exchange, on June 29, 2009. That same day, AUSA Lana Morton-Owens forwarded a copy of the motion and the transcript of Welton's interrogation to Benitez. On July 1, 2009, Benitez emailed Scarpelli, and told him that she would be testifying soon at the suppression hearing in this case, and that she was shocked by the allegations defense counsel had made about her in the motion papers. She said she would forward a copy of the motion and the interview transcript to Scarpelli for his review.*fn13 She forwarded the documents to Scarpelli in a separate email that read: "Here it is... ridiculous."*fn14
On Thursday, July 9, 2009, Scarpelli sent Benitez an email regarding his review of the interview transcript. He said that Benitez had done a "[g]ood job" making clear to Welton that he was not in custody. Scarpelli observed that if the court determined that Welton was in custody, however, Benitez's pre-Miranda conversation with him was "not incriminating" and constituted "background information to see if [Welton] wanted to talk and to make him feel comfortable with [Benitez]. He then stated: "DON'T SAY IT WAS TO SOFTEN HIM UP." Scarpelli opined that Welton's argument that Benitez had "prey[ed on his victimization" was "a loser," and counseled that "[t]he prosecutor should keep in terms of just trying to develop a rapport with [defendant]."*fn15
Benitez thanked Scarpelli for his analysis, and noted that she would testify the following Monday. She noted that AUSA Morton-Owens was "awesome" but had only been an AUSA for four months. Benitez requested permission to forward Scarpelli's analysis to Morton-Owens.*fn16
Scarpelli agreed, and later offered further analysis as to whether Welton had been in custody.*fn17
After Benitez told Scarpelli that the interview took place at Welton's place of work and that Welton had received Miranda warnings fifteen times in the past, Scarpelli replied that Welton was "screwed."*fn18
Both Benitez and Scarpelli testified at the evidentiary hearing held on July 29. Benitez stated that she consulted Scarpelli because she was offended by defense counsel's allegations regarding her conduct, and because Morton-Owens was an inexperienced prosecutor, and she wanted the advice of a more seasoned attorney.*fn19 Benitez testified that she had not spoken in person or by telephone with Scarpelli regarding the case, and that their only communications were the emails that had been produced to defense counsel.*fn20
Benitez defined "softening up" a suspect as being excessively nice and gentle, and contrasted this with the manner in which "softening up" has been used in the court decisions cited by Scarpelli.*fn21 She acknowledged that past sexual abuse was a topic that she often discussed with suspects, but stated that usually it was a subject raised by the suspect rather than by her. She conceded that in this case, she alluded to abuse before Welton discussed the particulars of it.*fn22
Scarpelli testified that he defined "softening up" a suspect as "gangsters beating someone into talking," or "some [other] sort of gangster scenario."*fn23 He also stated that his advice that Benitez not "SAY IT WAS TO SOFTEN HIM UP" was intended as a joke.*fn24 Scarpelli said that he assumed Benitez would forward his email messages to Morton-Owens, and that Morton-Owens would comply with any disclosure obligations that arose.*fn25 He acknowledged that he had shown bad judgment, but disclaimed any wrongdoing:
"Q: Do you think you did anything wrong in this case?
A: I do. I think that I used poor judgment in putting a joke in an e-mail which ultimately has us all here.
Q: But you don't see any problem in terms of discussing the issues that might come up with the hearing with Special Agent Benitez prior to the hearing?
A: Well, I think what I was doing was I was giving her the legal parameters of what occurred. And again, I was looking back from her statement, which was already memorialized. And again, that was being -- my understanding was it was ...