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United States v. Sciolino

September 10, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
NANCY R. SCIOLINO, DEFENDANT.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

AMENDED MEMORANDUM AND ORDER

This matter is before the court on defendant Nancy R. Sciolino's ("Sciolino" or "defendant") motion to suppress statements made to two Special Agents of the United States Postal Service ("the officers") on November 19, 2008. Defendant is charged in the indictment with one court of embezzling postal funds in violation of 18 U.S.C. § 1711, one count of theft of U.S. money in violation of 18 U.S.C. § 641, and twelve counts of false entries and reports of U.S. moneys in violation of 18 U.S.C. § 2073. (Indictment [Docket #9], filed Feb. 19, 2009). Defendant submitted a declaration in support of her motion to suppress.*fn1 Having reviewed the file herein and heard the arguments of counsel, the court DENIES defendant's motion to suppress.

BACKGROUND*fn2

Sciolino began working for the U.S. Postal Service in February 1985. She was a part-time flexible clerk for eight years and became a full time clerk in 1993. From December 6, 2007 until September 30, 2008, Sciolino was the Officer in Charge at the Farmington, California Post Office. Subsequently, she was a Sales and Service Associate in the Acampo, California Post Office, but was used as a "floater clerk" when other post offices needed her.

On November 19, 2008, Special Agent Linda M. Russo ("Russo") of the United States Postal Service, Office of the General Inspector, interviewed defendant Sciolino at the Acampo, California Post Office after presenting her credentials and explaining that the purpose of the interview was to discuss the shortage that was discovered in Sciolino's individual clerk drawer at the Farmington, California Post Office. Russo asked Sciolino to read the Office of Inspector General's "Acknowledgment of Rights Form." The form provided that a Special Agent was conducting an investigation into a matter affecting defendant's official duties. It also provided that, in connection with this investigation:

1. I have the right to remain silent if my answers may result in a criminal charge being brought against me.

2. Anything I say or do may be used as evidence in administrative proceedings, civil proceedings, or any future criminal proceeding involving me.

3. If I refuse to answer the questions posed to me on grounds that the answers may tend to incriminate me, I cannot be discharged solely for remaining silent.

4. This interview is strictly voluntary and I may leave at any time.

(Ex. B to Def.'s Mot. to Suppress.) Sciolino initialed each of the numbered statements and then signed that she had read and understood the rights. (Id.) The Acknowledgment of Rights Form was Dated November 19, 2008 at 9:57. Special Agent Patricia Ford-Smith ("Ford-Smith") was also present at the interview.

Sciolino asserts that throughout the interview, one of the inspectors repeatedly said words to her to the effect of, "I know what you did," "You need to tell the truth," and "You need to tell us you took the money." (Sciolino Decl. ¶ 2.) She also asserts that as the interview progressed and she denied the accusations, the questioning by the inspector became more hostile, and the inspector raised her voice in an angry manner. Sciolino further asserts that when she attempted to get a drink of water, the inspectors stood up and blocked the door; the inspectors then watched her as she got a drink of water outside the door to the break room. (Sciolino Decl. ¶¶ 5-7.)

During the interview, Sciolino made incriminating statements. Further, she also produced a written statement, containing incriminating statements. (Ex. C to Mot. to Suppress.) Sciolino asserts that inspectors suggested to her what she should write in that statement. (Sciolino Decl. ¶ 9.) The signed statement provides that Sciolino made the decision to make the written statement "freely, knowingly, and voluntarily, and without any threats or promised having been extended." (Ex. C to Mot. to Suppress.) The statement was also made under penalty of perjury. The first page of the sworn statement was dated November 19, 2008 at 11:05; the last page, following the content of the statement was dated November 19, 2008 at 11:38. (Id.)

ANALYSIS

A. Failure to Administer Miranda Warnings

Sciolino moves to suppress all statements made by her during the interview on November 19, 2008 on the grounds that the statements were involuntary and obtained without valid warnings and waiver of rights in violation of Miranda v. Arizona, 384 U.S. 436 (1966) ("Miranda"). Specifically, defendant asserts that she was not advised of her right to the presence of an attorney during the investigation. Thus, the question before ...


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