United States District Court, N.D. California
ORDER DENYING MOTION TO SUPPRESS STATEMENTS RE: DKT.
H. Orrick United States District Judge
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.
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.
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.
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.
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.
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 any cause for concern and
whether he should bring a union representative. Id.
DiNucci replied, “No need for a rep unless you want
one. I wanted to clear that up face to face.”
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].
Meeting with Supervisor DiNucci
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.
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.
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.
DHS OIG Interviews Ortino Without Providing A
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 statement without 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).
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.
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).
DHS OIG's Instruction on Garrity
DHS OIG Special Agent Handbook
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). 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 ...