UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
August 1, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
RICHARD MICHAEL WELTON, DEFENDANT.
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
I. FACTUAL BACKGROUND
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 going to be turned over to the assistant handling the case.
Q: But wasn't it obvious to you at that time that your legal advice might affect the way she testified?
A: I don't believe so."*fn26
Based on this evidence, defendant seeks dismissal of the indictment for outrageous government misconduct under the Due Process Clause or dismissal under the court's inherent supervisory powers. At the hearing, he argued that the government's failure to turn over copies of the email communications violated the Jencks Act or its disclosure obligations under Brady/Giglio. On this basis, he asked that the court strike Benitez's testimony at the suppression hearing, and conclude that, without that testimony, the government had not met its burden of showing that the statements he made on September 18, 2008. Based on that conclusion, defendant argued, the confession should be suppressed.*fn27
A. Whether the Government Engaged in Witness Coaching That Violated Due Process
To violate due process, governmental conduct must be "so outrageous that due process principles would absolutely bar the Government from invoking judicial process to obtain a conviction." United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991) (quoting United States v. Russell, 411 U.S. 423 (1973)); see also United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir. 1991) ("[G]overnmental conduct must be 'so grossly shocking and so outrageous as to violate the universal sense of justice,'" quoting Restrepo, 930 F.2d at 712).
Defendant contends that "coaching" Benitez in the manner Scarpelli did was outrageous and violated due process. "Significant 'difficulties (attend) the notion that due process of law can be embodied in fixed rules.'" Hampton v. United States, 425 U.S. 484, 491 (Powell, J., concurring) (quoting Russell, 411 U.S. at 431). Neither party has cited, and the court has not found, case authority delineating the "constitutional boundaries of witness preparation." Skains v. Lockler, No. CIV S-06-127, 2009 WL 230037, *8 (E.D. Cal. Jan. 20, 2009) ("It is, of course, proper for an attorney to meet with a witness in preparation for trial. A thorough search reveals no Supreme Court or Ninth Circuit precedent on the constitutional boundaries of witness preparation. There appear to be no clearly established standards for evaluating a prosecutor's 'coaching' of witness testimony, assuming of course that the testimony is not perjured"). While directing a witness to use (or avoid using) particular words when phrasing an answer is unacceptable conduct, particularly for a prosecutor,*fn28 cf. United States v. Apperson, 441 F.3d 1162, 1208 (10th Cir. 2006) (affirming trial court's denial of a motion for mistrial where prosecutors denied "programming" witnesses by ascertaining which exhibits would be the subject of defense questions and suggesting how the witnesses might respond and there was no contrary evidence); United States v. Copple, 827 F.2d 1182, 1190 (8th Cir. 1987) (rejecting an argument that the government engaged in misconduct by, inter alia, "coaching [witnesses] on the way in which their testimony should be presented" because that the witnesses testified untruthfully); United States v. Cincotta, 689 F.2d 238, 244-45 (1st Cir. 1982) (affirming a district judge's decision to instruct witnesses on their proper role in the trial and on the impropriety of prosecutors' conduct after the government sent a letter to prospective government witnesses that, inter alia, "coached the witnesses on how to present their testimony"), there is no evidence that Benitez testified falsely at the suppression hearing as a result of the advice she received from Scarpelli. Benitez's hearing testimony was consistent not only with the tape of the September 18, 2009 interview she conducted of Welton, but with the declaration she signed three days before Scarpelli advised her to avoid saying that her pre-Miranda conversation with Welton was designed to soften him up. In light of this fact, the court cannot conclude that Scarpelli's efforts to "coach" Benitez violated due process or constituted the type of outrageous government misconduct that warrants dismissal of the indictment.
B. Whether the Government Violated the Jencks Act or Rule 26.2 of the Federal Rules of Criminal Procedure
The Jencks Act requires that the government produce a witness's statements to a defendant after the witness has testified. As respects pretrial discovery, it states that "[i]n any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case." 18 U.S.C. § 3500(a) (emphasis added); see United States v. Taylor, 802 F.2d 1108, 1118 (9th Cir. 1986) (the Jencks Act "limits compulsory pretrial discovery of statements made by prospective government witnesses and makes them unavailable until such witnesses have testified at trial"); see also United States v. Hanna, 55 F.3d 1456, 1459 (9th Cir. 1995) ("Hanna's only request for the production of Jencks Act materials was made in a pretrial motion for discovery. Hanna did not move for the production of grand jury testimony or other witness statements after any of the government witnesses testified. Because Hanna failed to 'tender to the Court the question of [Sargeant Crenshaw's statements or prior testimony] at a time when it [was] possible for the Court to order it produced,' he may not claim, on appeal, that the failure to produce any such material violated the Jencks Act"); United States v. Barker, 988 F.2d 77, 79 (9th Cir. 1993) ("[T]he Jencks Act requires only that a witness' statement be 'subject to... discovery following the witness' testimony on direct examination'"). At the hearing, defendant argued that the government's failure to disclose the Benitez-Scarpelli emails prior to the suppression hearing violated the Jencks Act. Because there is no pretrial right to statements under the Jencks Act, this argument fails. See Hanna, 55 F.3d at 1459.
Rule 12(h) of the Federal Rules of Criminal Procedure, however, effectively extends the disclosure obligations of the Jencks Act to suppression and other pretrial hearings. FED. R. CRIM. P. 12(h) ("Rule 26.2 applies at a suppression hearing under Rule 12(b)(3)(C). At a suppression hearing, a law enforcement officer is considered a government witness); FED. R. CRIM. PROC. 26.2(a) ("After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the government or the defendant and the defendant's attorney to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness's testimony"); United States v. Conners, 825 F.2d 1384, 1388 (9th Cir. 1987) ("Rule 26.2(a) places in the criminal rules the substance of the Jencks Act 18 U.S.C. § 3500"); see also United States v. Webster, 914 F.2d 259, 1990 WL 136117, *3 (6th Cir. Sept. 20, 1990) (Unpub. Disp.) ("Thus it stands to reason that any law interpreting a provision of the Jencks Act should be applicable to a similar provision of Rule 26.2").
The disclosure requirement of the Jencks Act, and thus of Rule 26.2(a), does not attach until after the witness has testified on direct examination and defendant or his counsel has made a request to the court for the witness's prior statements. Unlike the requirements of Brady v. Maryland, 373 U.S. 83 (1963), "the defendant must plainly tender to the Court the question of the producibility of the document at a time when it is possible for the Court to order it to produced, or to make an appropriate inquiry. If he does not do so he may not assert... that failure to order production or to undertake further inquiry was error." Hanna, 55 F.3d at 1459 ("The responsibility for fairly directing the attention of the Court to the precise demand submitted for the Court's determination is appropriately placed upon the Defendant, who seeks the statute's benefits," quoting United States v. Burke, 506 F.2d 1165, 1168 (9th Cir.1974), cert. denied, 421 U.S. 915 (1975) (emphasis original)); see FED. R. CRIM. PROC. 26.2(a) ("[T]he court, on motion of a party who did not call the witness, must order [the witness' statements produced]" (emphasis added)); see also United States v. Bagley, 473 U.S. 667, 670 n. 2 (1985) ("The Jencks Act, 18 U.S.C. § 3500, requires the prosecutor to disclose, after direct examination of a Government witness and on the defendant's motion, any statement of the witness in the Government's possession that relates to the subject matter of the witness' testimony").*fn29 Because defendant did not request that the court order production of statements by Benitez under Rule 26.2(a) at the hearing on the motion to suppress,*fn30 it appears that, strictly interpreted, Rule 26.2(a) does not apply.*fn31
Moreover, the portions of the email exchange that are most troubling -- i.e., those in which Scarpelli advises Benitez how to testify at the suppression hearing -- would not be subject to disclosure under Rule 26.2(a). Under the Jencks Act and Rule 26.2(a), only a witness's own statements need be disclosed. "The Congressional policy behind the Jencks Act was to protect witnesses from being impeached with words that are not their own, or are an incomplete version of their testimony." United States v. Griffin, 659 F.2d 932, 937 (9th Cir. 1981) (quoting United States v. Spencer, 618 F.2d 605, 606 (9th Cir. 1980)); see also United States v. Pardee, 224 Fed. Appx. 650, 650 (9th Cir. Mar. 6, 2007) (Unpub. Disp.) ("Under the Jencks Act, 'production is limited to statements which can properly be called the witness' own words,'" quoting United States v. Howard, 450 F.2d 792, 793 (9th Cir. 1971) (per curiam)).
For all of these reasons, the court concludes that Rule 26.2(a) provides no basis for the relief that defendant seeks -- i.e., the striking of Benitez's testimony at the suppression hearing and the suppression of defendant's statements in the September 18, 2008 interview.
C. Constitutional Requirements Regarding Pretrial Disclosure of Exculpatory or Impeachment Material
1. Standards Governing Pretrial Disclosure of Evidence in Criminal Cases
The government has a constitutional duty to disclose, upon request, all evidence favorable to a defendant that is material either to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963) ("We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment"); see also United States v. Ruiz, 536 U.S. 622, 627-28 (2002) ("[A] federal criminal defendant's... right to receive from prosecutors exculpatory impeachment material [is] a right that the Constitution provides as part of its basic 'fair trial' guarantee," citing Brady and U.S. CONST. AMENDS. V and VI); United States v. Agurs, 427 U.S. 97, 106-07 (1976) ("In many cases, however, exculpatory information in the possession of the prosecutor may be unknown to defense counsel. In such a situation he may make no request at all, or possibly ask for 'all Brady material' or for 'anything exculpatory.' Such a request really gives the prosecutor no better notice than if no request is made.... But if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request [or a general 'all Brady material' request] is made");
Evidence "is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985); see also Strickler v. Greene, 527 U.S. 263, 280 (1999) (citing Bagley). The government's obligations under Brady are "not confined[,] [however,] to evidence that affirmatively proves a defendant innocent: Even if evidence is merely 'favorable to the accused,' its suppression violates Brady if prejudice results." Gantt v. Roe, 389 F.3d 908, 912 (9th Cir. 2004) (citing Brady and Strickler).
The government's disclosure obligations under Brady include impeachment as well as exculpatory evidence. Giglio v. United States, 405 U.S. 150, 154 (1972) ("When the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule" (citation omitted)); Bagley, 473 U.S. at 676 ("Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule.... Such evidence is 'evidence favorable to an accused,'... so that, if disclosed and used effectively, it may make the difference between conviction and acquittal").
The Brady obligation, moreover, extends to all government actors, not just the government attorney and investigative team prosecuting the case. See Kyles, 514 U.S. at 437 ("[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police"); United States v. Blanco, 392 F.3d 382, 388 (9th Cir. 2004) ("A prosecutor's duty under Brady necessarily requires the cooperation of other government agents who might possess Brady material"). The government's good or bad faith, moreover, is irrelevant. Brady, 373 U.S. at 87; see also Agurs, 427 U.S. at 110 (stating that the prosecution's constitutional obligation to disclose material evidence is not "measured by the moral culpability, or the willfulness, of the prosecutor.... If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor" (footnote omitted)); Giglio, 405 U.S. at 154 ("[W]hether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor").
Before the court can find that a Brady violation has occurred, it must conclude that "[t]he evidence at issue [is] favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence [was] suppressed by the State, either willfully or inadvertently; and [that] prejudice... ensued." Strickler, 527 U.S. at 281-82.
2. Whether The Government Violated Brady or Giglio
The timing of required Brady and Giglio disclosures differs. Brady disclosures need "'be made at a time when disclosure would be of value to the accused.'" United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988) (quoting United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir.1985)); see also United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000) (stating that a Brady violation "may be cured... by belated disclosure of evidence, so long as the disclosure occurs 'at a time when disclosure would be of value to the accused,' " quoting United States v. Span, 970 F.2d 573, 583 (9th Cir. 1992)). By contrast, because Giglio material "merely goes to the credibility of the witness, it need not be disclosed prior to the witness testifying." United States v. Rinn, 586 F.2d 113, 119 (9th Cir. 1978); United States v. Hopkins, Cr. No. S-05-0538 EJG (GGH), 2008 WL 4453583, *2 (E.D. Cal. Oct. 3, 2008); United States v. Marquez, 686 F. Supp. 1354, 1358 (N.D. Ill. 1988) ("Because evidence which is potentially impeaching merely goes to a witness' credibility, courts generally hold that disclosure in advance of trial is not required"); United States v. Laurins, 660 F. Supp. 1579, 1584 (N.D. Cal. 1987).
The court has not located any authority in this circuit that squarely hold that Giglio applies in the context of a pretrial suppression hearing.*fn32 The Ninth Circuit has held, however, that Brady applies to at least one category of suppression hearing. See United States v. Barton, 995 F.2d 931, 935 (9th Cir.) ("[W]e hold that the due process principles announced in Brady and its progeny must be applied to a suppression hearing involving a challenge to the truthfulness of allegations in an affidavit for a search warrant"), cert. denied, 510 U.S. 957 (1993); see also United States v. Fernandez, 231 F.3d 1240, 1248 n. 5 (9th Cir. 2000) ("Nonetheless, 'the due process principles announced in Brady and its progeny must be applied to' certain pretrial proceedings, such as suppression hearings," quoting Barton).*fn33 The continuing validity of these cases may be questionable given the Supreme Court's decision in United States v. Ruiz, 536 U.S. 622, 623 (2002). There, the court reversed a decision of the Ninth Circuit that required prosecutors to make impeachment material available to defendants before entering into a plea agreement. They nonetheless remain the law of the circuit and are instructive here.
Assuming, without deciding, that the government was required to disclose Giglio material to defendant in connection with the suppression hearing, the court concludes that no Giglio violation occurred, as defendant cannot show prejudice. See Strickler, 527 U.S. at 281-82. As noted, delayed disclosure of exculpatory or impeachment evidence does not violate the constitution so long as the defendant receives the material in sufficient time to make use of it. See, e.g., United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985) ("Davenport further claims that the prosecution's failure at the pretrial hearing to disclose the fact that a witness to a lineup identification had previously been asked to identify the robber amounted to a suppression of exculpatory evidence under [Brady]. Disclosure, to escape the Brady sanction, must be made at a time when the disclosure would be of value to the accused.... Here, Davenport had access to the exculpatory information from the beginning of trial and made use of it in cross-examining a witness. The delay in providing the information does not, therefore, constitute a due process violation" (citations omitted)); see also Gamez-Orduno, 235 F.3d at 461; Span, 970 F.2d at 583. Moreover, to establish a Brady violation, the defendant must show that there is a reasonable probability that the outcome of the trial or proceeding would have been different had the evidence been disclosed. Gantt, 389 F.3d at 913; see also Strickler, 527 U.S. at 263.
Defendant cannot make this showing here. First, although the evidence in question was disclosed after the suppression hearing, the government produced the material at a time when defendant was able to seek a pretrial hearing and renew his request that his statements to Benitez be suppressed. He thus obtained the information in sufficient time to make use of it.*fn34
Furthermore, the court concludes the impeachment evidence is not material, in the sense that it does not alter the court's view regarding the voluntariness of defendant's statements on September 18, 2008.
Viewed in the context of Benitez's exchange with Scarpelli regarding "softening up" suspects, the issue presented by Welton's suppression motion is whether Benitez "softened" Welton up before he waived his Miranda rights such that his waiver was invalid and his subsequent statements were coerced. There are two requirements for a voluntary, knowing, and intelligent waiver of rights. "First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986). The court has already concluded that Benitez's empathic statements did not coerce Welton to waive his Miranda rights or confess his involvement in the underlying crime.*fn35 It has similarly concluded that Welton was keenly aware of the fact that he possessed rights under Miranda and chose nonetheless to give them up. The fact that Benitez engaged in conversations, after the fact, with Scarpelli regarding the advisability of "softening up" suspects before reading them their Miranda rights does not change the court's view of what occurred on September 18, 2008, or the effect on Welton of the statements Benitez made that day.
The Ninth Circuit, in fact, considered the effect of "softening up" a suspect in Elliott v. Rocha, 108 F.3d 337 (Table), 1996 WL 733179 (9th Cir. Dec. 16, 1996) (Unpub. Disp.). There, the defendant and a police officer conversed for several minutes before the officer read the defendant his Miranda rights. They discussed the defendant's girlfriend, the defendant "being treated like a human being," the fact that the defendant would be handcuffed during transport to San Diego, the amount of bail, and the fact that other suspects in the case had implicated the defendant. Id. at *2. Considering the totality of the circumstances, including the fact that the police officer had known the defendant for eighteen years, and the fact that there was no evidence that the officer "plied [the defendant] with friendship to deceive him and obtain statements from him," the court concluded that such tactics did not amount to coercion. Id.
Similarly here, there is no evidence that Benitez crossed the line between empathy designed to develop rapport and deception designed to coerce a defendant into waiving rights he did not wish to give up, or making incriminating statements involuntarily. Benitez told defendant multiple times that he was free to leave and that he did not have to talk with her. She advised him at the outset of the conversation that she was a federal agent, that she had "come across something," and that defendant had "been on the radar" for some time. They then discussed his time in the Marine Corps, an ex-fiancee, why he was living at his place of employment, and his sex offender status. At this point, Benitez alluded to, but did not directly mention, the fact that Welton may have been abused as a child. She said: "I'm sorry those things happened to you, and I'm sorry it's following you."*fn36 Immediately, however, she said: "I'm here to talk with you about something we found," and stated that she was going to read Welton his Miranda rights.*fn37 She once again said that Welton did not have to speak with her. As in Rocha, the record is devoid of evidence that Benitez used coercion to induce Welton to waive his Miranda rights or make involuntary statements. See also United States v. Miranda, No. 08-CR-76, 2009 WL 159163, *3-4 (W.D. Wis. Jan. 22, 2009) (holding that playing a tape on which the suspect made potentially incriminating statements before giving Miranda warnings did not constitute unconstitutional "softening up" or the deliberate withholding of Miranda warnings until they had an inculpatory statement in hand, as is prohibited by Missouri v. Seibert, 542 U.S. 600 (2004)); Hernandez v. Scribner, No. 1:04-CV-05234, 2008 WL 2025146, *11 (E.D. Cal. May 9, 2008) (finding that a half hour of pre-Miranda questioning about unrelated past events and former acquaintances, and then about the victim of the homicide, did not constitute impermissible "softening up"); Velasco v. Campbell, No. 1:04-CV-06540, 2008 WL 928308, *10 (E.D. Cal. Apr. 4, 2008) (in analyzing whether improper "softening up" rendered a later post-Miranda confession invalid, the appropriate question is whether the suspect's "will has been overborne and his capacity for self-determination critically impaired," quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)); Thompson v. Rummel, No. C 05-1264, 2008 WL 906158, *11 (N.D. Cal. Mar. 31, 2008) (where inspectors expressed sympathy for the suspect and suggested that he may have committed homicide in self-defense, the comments did not overbear the suspect's will or render his Miranda waiver involuntary).
Because the court would have reached the same conclusion regarding the voluntariness of Welton's Miranda waiver and his subsequent statements had it known of Benitez's email communications with Scarpelli at the time of the suppression hearing, defendant has not been prejudiced and there has been no Giglio violation.
D. Exercise of The Court's Supervisory Power
"If the conduct does not rise to the level of a due process violation, the court may nonetheless dismiss [an indictment] under its supervisory powers. These powers may be exercised for three reasons: to remedy a constitutional or statutory violation; to protect judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; or to deter future illegal conduct." Barrera-Moreno, 951 F.2d at 1091 (citing United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991) (Simpson II)). "Dismissal is appropriate when the investigatory or prosecutorial process has violated a federal constitutional or statutory right and no lesser remedial action is available." Id. at 1092. Here, the court has found that the email communications and the government's failure to produce them before the suppression hearing did not violate a federal constitutional or statutory right. The need to provide a remedy for a statutory or constitutional violation therefore does not warrant dismissal of the indictment.
The second reason to dismiss under a court's supervisory powers is to protect judicial integrity, in particular by "ensuring that a conviction rests on appropriate considerations validly before a jury." Barrera-Moreno, 951 F.2d at 1091. This reason too is inapplicable here, both because the parties have waived jury trial and the court will act as the trier of fact, and because any possible prejudice to a fair trial has been and will be remedied by pretrial disclosure of the evidence, the evidentiary hearing held on July 29, 2009, and the opportunity defendant will have to impeach Benitez at trial. United States v. Arista-Barragon, 9 Fed. Appx. 590, 591 (9th Cir. Apr. 17, 2001) (Unpub. Disp.) ("Because this case was tried to a judge, the second reason for dismissing an indictment under the court's supervisory powers does not apply").
The third reason to exercise the court's supervisory powers is to "to deter future illegal conduct." Barrera-Moreno, 951 F.2d at 1091. In this regard, the court must consider whether "any lesser sanction [would be] like endorsing [the AUSA's conduct]." United States v. Chapman, 524 F.3d 1073, 1088 (9th Cir. 2008) (alterations original). Here, declining to impose some type of litigation sanction would endorse the notion that suggesting to government witnesses how they should testify at pretrial hearings is permissible, particularly since disclosure of the fact of such communications might not be compelled under Brady, Giglio, or Rule 26.2(a), and consequently there might not be another form of constitutional or statutory relief.
For a court to dismiss an indictment for prosecutorial misconduct under its supervisory powers, however, defendants must show both flagrant misbehavior and substantial prejudice. United States v. Kearns, 5 F.3d 1251, 1254 (9th Cir.1993) (citing United States v. Jacobs, 855 F.2d 652, 655 (9th Cir.1988) (per curiam)). The record reflects neither here. Under such circumstances, "the sanction chosen must be proportionate to the misconduct." Jacobs, 855 F.2d at 655; see also United States v. Ross, 372 F.3d 1097, 1111 (9th Cir. 2004) (sanctions to deter prosecutorial misconduct are appropriate "even if the[ ] misconduct does not prejudice the defendant"). Where no prejudice has been suffered, remedies short of dismissal are salutary because they "allow the court to focus on the culpable individual rather than granting a windfall to the unprejudiced defendant." Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988); see also Ross, 372 F.3d at 1111-12 (stating that in such circumstances, sanctions are "necessary to punish prosecutors who fail to fulfill their duty 'to win fairly, staying well within the rules,'" quoting Kojayan, 8 F.3d at 1323); see generally Blanco, 392 F.3d at 394-95 (noting that "[a] range of options will be available to the court, including, at one extreme, dismissal of the indictment for governmental misconduct... [and] [a]t the other extreme,... simply leav[ing] the judgment... in place").
A court exercising its inherent supervisory powers has a variety of tools available to ensure that a prosecutor remembers that "[i]t is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v. United States, 295 U.S. 78, 88 (1935). In this regard, the court previously granted defendant's ex parte application for an evidentiary hearing, ordered Benitez and Scarpelli to appear for cross-examination, and afforded defendant an opportunity to investigate whether more egregious violations had occurred. Ensuring that prejudice to the defendant is minimized or eliminated is the court's first and most important duty when faced with this type of situation. Cf. Cincotta, 689 F.2d at 244-45 (after the government suggested to its witnesses how they should testify, the district court correctly admonished the witnesses that its conduct had been inappropriate and that, contrary to the government's advice, their obligation was to testify truthfully and candidly for the benefit of the jury).
There are other remedies available, however, that warrant consideration in this case. In United States v. Hasting, 461 U.S. 499, 506 & n. 5 (1983), the Supreme Court suggested that where prosecutorial misconduct is harmless error as respects the defendant, a court exercising its inherent supervisory powers could "order the prosecutor to show cause why he should not be disciplined;" "ask[ ] the Department of Justice to initiate a disciplinary proceeding against him;" and "publically chastise[ ] the prosecutor by identifying him in its opinion." Id. The court can also request that the state bar association of which the prosecution is a member initiate disciplinary proceedings. Bank of Nova Scotia, 487 U.S. at 263. Finally, it is within the power of the court to formally reprimand a prosecutor.*fn38 United States v. Sigma International, Inc., 300 F.3d 1278, 1279 (11th Cir. 2002) (per curiam).*fn39
As noted, the most troubling aspect of these proceedings is that AUSA Scarpelli not only advised Benitez how to present her testimony at the suppression hearing, but also took no responsibility for his actions, describing the comment as merely a joke. As an initial remedy, therefore, the court refers this matter to the United States Attorney for the District of Columbia and the Department of Justice's Office of Professional Responsibility, so that they may determine whether any ethical or legal violations were committed by Scarpelli that warrant further discipline.
Just as it finds not credible Scarpelli's assertion that his advice to Benitez was simply a joke, the court finds not credible Benitez's testimony that Scarpelli's advice did not influence her in any way when she testified at the suppression hearing. Even if she attempted to put it from her mind, Scarpelli's comments undoubtedly affected Benitez's testimony regarding her state of mind during the pre-Miranda portion of her interview with Welton, whether consciously or subconsciously. The sanction that is "proportionate to the misconduct," Jacobs, 855 F.2d at 655, therefore, is one that eliminates that taint. The court therefore makes a specific finding that those portions of Benitez's testimony that were influenced by Scarpelli's advice -- i.e., those relating to, her motivation for making certain statements during the pre-Miranda portion of her interview with Welton -- are not credible. The court's finding that Welton's Miranda waiver and subsequent statements were voluntary did not rely on Benitez's testimony about developing rapport with or expressing empathy for a suspect, but on the court's independent evaluation of the recording and transcription of the September 18, 2008 interview.*fn40 Consequently, the court concludes that suppressing Welton's confession would be too severe a sanction to impose for purposes of remedying the misconduct.
At the hearing, defendant argued that with Benitez's testimony stricken, the court could not consider the recording and transcription of interview, as those items are hearsay.*fn41 The court disagrees. First, the statements of Welton that are reflected on the tape are not hearsay, as they are party admissions. FED. R. EVID. 801(d)(2)(A). Second, the statements of Benitez reflected on the tape are not being considered for the truth of the matter asserted, but rather for what they show regarding coercion or lack of coercion during the interview. They are also not hearsay because they provide context for defendant's admissions. See United States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2007) ("Statements providing context for other admissible statements are not hearsay because they are not offered for their truth"); United States v. Barone, 913 F.2d 46, 49 (2d Cir. 1990) (the district court properly admitted evidence of an informant's recorded statements during a conversation with the defendant where they were presented not for the truth of the matter asserted, but to establish a context to assist the jury in understanding the recorded statements of the defendant, i.e., his admissions); see also United States v. Davis, 890 F.2d 1373, 1380 (7th Cir. 1989) (when a defendant has an out-of-court recorded conversation with a third party, and the defendant's statements are admissible as party admissions, the third party's statements to the defendant during the recorded conversation are admissible "as reciprocal and integrated utterances between two parties for the limited purpose of putting the response of the defendant in context of making them intelligible to the jury and recognizable as admissions").
Defendant also argued that the tape could not be admitted unless he had an opportunity to cross-examine Benitez. To the extent this is a Confrontation Clause argument, it fails for the same reason that defendant's hearsay argument fails. See Tennessee v. Street, 471 U.S. 409, 413-414 (1985) (holding that the Confrontation Clause was not implicated when the confession of a non-testifying accomplice was admitted at defendant's trial for a non-hearsay purpose; the out-of-court statement was not offered to prove what happened at the murder scene but rather to rebut defendant's testimony that he was coerced to copy his own confession from the accomplice's); see also United States v. Inadi, 475 U.S. 387, 398 n. 11 (1986) (recognizing that the admission of non-hearsay statements raises no Confrontation Clause concerns, and noting that certain taped conversations could be admitted without violating the Confrontation Clause if not offered to prove the truth of the matters asserted, but rather as background for the conspiracy or to explain the significance of certain events); Tolliver, 454 F.3d at (holding that the statements of a government informant to defendant on a tape recording were offered for the non-hearsay purpose of providing context for defendant's admissions on the tape, presented no Confrontation Clause issue despite the fact that the informant did not testify at trial).*fn42
Finally, the court declines to strike so much of Benitez's declaration and hearing testimony as authenticated the tape of the interview. Rule 901 sets a low threshold for the authentication of evidence. FED. R. EVID. 901(a) ("The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims"). Defendant at no time during these proceedings has challenged those portions of Benitez's declaration and testimony that authenticate the recording of her interview with Welton. Benitez adequately authenticated the recording in her declaration, which was executed before she received the July 9, 2009 email from Scarpelli.*fn43 In addition, unlike Benitez's testimony regarding her state of mind in conversing with Welton before she read him his Miranda rights, her testimony regarding the fact that she recorded the conversation and that the tape recording she has presented accurately reflects the words that were spoken is corroborated by the recording itself and by the lack of any challenge to the authenticity of the evidence by the defendant. Consequently, striking this aspect of Benitez's declaration and suppression hearing testimony would be "a windfall to [an] unprejudiced defendant." Bank of Nova Scotia, 487 U.S. at 263.
In addition to striking so much as Benitez's suppression hearing testimony and declaration as concerns her motivations in engaging Welton in general discussion that touched indirectly on his alleged history of prior sexual abuse before administering Miranda warnings, the court exercises its discretion to make a specific finding that Benitez testified in a manner the court finds not credible at the evidentiary hearing on defendant's motion to dismiss the indictment. Specifically, the court finds not credible Benitez's testimony that Scarpelli's advice had no effect whatsoever on the manner in which she testified at the suppression hearing. The court will take this finding into account in assessing Benitez's credibility as a trial witness, should she be called to testify.
For the foregoing reasons, Welton's motion to dismiss the indictment or alternatively to suppress the statements he made to FBI agents on September 18, 2008 as a sanction for outrageous government misconduct is denied. Welton's motion for other remedies or sanctions is granted as detailed in this order.