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United States v. Kealoha

United States District Court, D. Hawaii

February 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KATHERINE P. KEALOHA 1; LOUIS M. KEALOHA 2; DEREK WAYNE HAHN 3; MINH-HUNG NGUYEN 4; GORDON SHIRAISHI 5; and DANIEL SELLERS 6, Defendants.

          ORDER DENYING WITHOUT PREJUDICE KATHERINE KEALOHA AND LOUIS KEALOHA'S MOTION TO SUPPRESS STATEMENTS AND EVIDENCE, ECF NO. 309

          J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On January 11, 2019, Defendants Katherine Kealoha and Louis Kealoha (collectively, “Kealohas”) filed a Motion to Suppress Evidence and Statements, ECF No. 309 (“Motion to Suppress”), claiming that they made involuntary statements to the Honolulu Ethics Commission (“Commission”) in violation of their Fifth Amendment privilege against self-incrimination. The Motion to Suppress is premised on Garrity v. New Jersey, 385 U.S. 493 (1967), holding that compelled statements made by a public employee secured through the threat of job loss cannot be used in a subsequent criminal proceeding. The United States filed its Response in Opposition on January 25, 2019. ECF No. 348. A hearing was held on February 11, 2019.

         Because neither Katherine nor Louis Kealoha were compelled to make statements or forced to waive immunity in relation to those statements, the Motion to Suppress is DENIED.

         II. DISCUSSION

         “In a series of cases involving the Fifth Amendment rights of public employees, the Supreme Court has made clear that public employees cannot be compelled to choose between providing unprotected incriminating testimony or losing their jobs.” Aguilera v. Baca, 510 F.3d 1161, 1171 (9th Cir. 2007).

         Applying this general rule, Garrity found statements to be coercive when made by police officers given “[t]he choice . . . between self-incrimination or job forfeiture.” 385 U.S. at 496. Before questioning began, the police officers in Garrity were each told “(1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office.” Id. at 494. No immunity was granted nor was an immunity statute applicable, and the police officers' statements (over their objections) were later used against them in a conspiracy prosecution. Id. At 495.

The Court suppressed the statements, [1] reasoning that
[t]he option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in [Miranda v. State of Arizona, 384 U.S. 436, 464-65 (1966)], is likely to exert such pressure upon an individual as to disable him from making a free and rational choice. We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions.

Id. at 497-98 (citations, footnote, and editorial marks omitted); cf. Minnesota v. Murphy, 465 U.S. 420, 437 (1984) (“Unlike the police officers in [Garrity], [the defendant] was not expressly informed during the crucial meeting with his probation officer that an assertion of the privilege would result in the imposition of a penalty.”). Accordingly, Garrity held that “the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office . . . .” Id. at 500.

         Although Garrity protects Fifth Amendment rights of public employees, “[t]he Court was careful, however, to preserve the right of a public employer to appropriately question an employee about matters relating to the employee's possible misconduct while on duty.” Aguilera, 510 F.3d at 1171. For example, Gardner v. Broderick, 392 U.S. 273 (1968), stated that if the police officer in that case

had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, the privilege against self-incrimination would not have been a bar to his dismissal.

Id. at 278 (citation and footnote omitted).

         Applying this framework, Aguilera held that the Fifth Amendment privilege against self-incrimination was not violated when supervisors questioned sheriff deputies ÔÇťabout possible misconduct, given that the deputies were not compelled to answer the investigator's questions or to waive their immunity from self-incrimination. Indeed, ...


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