The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge
Defendant Rupinder Kaur, a United States Postal Service (Postal Service) employee, is charged in a two-count Indictment with embezzlement of at least $1,000 from a Postal Service Point-of-Service cash drawer, and with falsifying records of transactions in the Postal Service Point-of-Sale computer system, in violation of 18 U.S.C. §§ 1711 and 2073. She has moved to suppress certain statements she made on March 21, 2008 to two agents from the Postal Service's Office of the Inspector General during an interview in the basement of the Postal Service's Linden Hall Station in Flushing, New York, where she worked. The court grants the defendant's motion for the reasons that follow.
The facts relevant to this motion, as set forth in the motion papers, exhibits, and testimony at the hearing, are as follows. The defendant worked as a window clerk at the Linden Hill Station beginning in February 2000. The defendant is unfamiliar with the criminal justice system beyond a single arrest for petit larceny, for which she pleaded guilty to a non-criminal violation. When defendant reported for work on the morning of March 21, 2008, her supervisor directed her to the basement, where she met Special Agents Anthony Chironno and Patrick Casey from the Postal Service Office of the Inspector General. The agents told the defendant that they were there to interview her. She asked the purpose of the interview, but before informing defendant of the purpose of the interview, the agents handed her a document entitled "Garrity Warnings: Acknowledgment of Rights." Special Agent Chironno testified that he is required to give the Garrity warnings whenever he conducts an interview. Special Agent Chironno then directed the defendant to read the document, which states, in relevant part:
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 the 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.
(Defendant's Memorandum (Def. Mem.), Exhibit B.) The agent also verbally informed the defendant of these rights, and she verbally acknowledged that she understood. Special Agent Chironno testified credibly that after reading the first Garrity warning, he added a comment that he makes as part of his usual "schtick" whenever he gives Garrity warnings, to the effect that "if you killed JFK years ago, don't tell me." He testified that he also added a comment to the effect that "if you didn't do anything wrong, you would know that it doesn't apply."
After reading the Garrity warnings, according to the defendant's affidavit, the defendant told Special Agent Chironno that she was a divorced mother of two and offered to cooperate if he promised that she could keep her job.*fn1 Special Agent Chironno testified that he responded that he could not make such a promise because he lacked the authority, and that the defendant then started to cry. Special Agent Chironno testified that after the Garrity warnings were provided, the defendant asked to contact her union representative, and then offered to cooperate if the agent promised that she could keep her job. The court finds that this minor discrepancy in the sequence of events is immaterial.
The central factual issue between the parties is whether Special Agent Chironno made the following statements after the defendant asked for her union representative. The defendant claims in her affidavit that Special Agent Chironno told her that she could contact her union representative, but "he told me that the union representative 'won't do anything' and the union representative 'would tell me to keep my mouth shut, which won't help anything,' and that 'I was smart enough to make my own decisions.'" Def. Aff. & 9.
Special Agent Chironno denied at the hearing that he made these statements, but admitted that, in an attempt to clarify the role of the union steward, he told the defendant that the union representative could not answer questions for her, and that her union representative's role was to ensure that her union rights were protected, and that she would have to answer the questions herself. Special Agent Chironno specifically denied making any predictions about what the union representative would do. As to the agent's alleged comment, "you are smart enough to make your own decisions," Special Agent Chironno testified on direct and on cross-examination that he tells all interviewees, as part of his "schtick" about JFK, as described above, that they know if they did anything criminal and that the warnings may or may not apply, depending on the circumstances. The court finds that Special Agent Chironno's testimony regarding what he said and did not say to the defendant is credible.
After this, the defendant and her station manager attempted to contact her union representative by telephone. During this time, defendant got up and walked around in the basement, making calls, and waited with the agents in the basement for approximately one hour for her union representative to arrive. Before the union representative arrived, but after the defendant received the Garrity warnings, Special Agent Chironno informed the defendant that the purpose of the interview was to investigate whether she took money from the Point-of-Sale cash drawer, and to investigate another employee for making a false Point-of-Sale transaction.
The union steward arrived after approximately one hour, at which time the agents requested that the defendant again read and review the Garrity warnings in the presence of her union representative. Special Agent Chironno again read the Garrity warnings, with the same "schtick" about JFK, and again defendant verbalized her understanding of the warnings. Although the defendant verbally acknowledged that she ...