Order Denying Suppression -- Grand Jury Target or Subject and Miranda Issues (10/22/16)

In United  States v. Cason, 2016 U.S. Dist. LEXIS 142434 (D WV 2016), here, the Court denied Cason's motion to suppress evidence of Cason's statements in an interview of Cason by IRS agents serving a search warrant.  Cason denied that he was testified that he was a subject of the grand jury investigation and that he was given the appropriate Miranda warnings.  The Agents testified differently, and their contemporaneous memorandum of the interview to that effect was entered.  The Magistrate conducting the hearing on the motion had made the key findings:

• After knocking on Cason's front door, the agents waited on his porch for three to four minutes while Cason's daughters left for school, hardly indicating custody or restriction;
• The agents tone did not change once they entered the home;
• The agents twice informed Cason that he was the subject of an investigation, that he was free to consult with an attorney, and that he was free to end the interview at any time n4;

   n4 Agent Gandee recounted this fact in his memorandum of interview, which he gave Cason the opportunity to review a few weeks later. The memorandum clearly indicated that Cason had been "informed he [was] the subject of a criminal investigation, that he had the right to legal counsel, and that he did not have to answer any of [their] questions." After reviewing the memorandum together with his legal counsel, Cason noted that there were no "major" inaccuracies.
   In his objections to the R&R, Cason argues that he "should have testified as to the nature and completeness of his review of the Memorandum, as should have [his attorney]," and that "[n]onetheless, [his] brief review of the Memorandum weeks later does not change any of the facts recited above." (Dkt. No. 39 at 9). Yet, Cason fails to explain how a memorandum wrongfully indicating that he had been informed of such highly pertinent facts and rights, of which both he and his attorney were fully aware, somehow contained no "major" inaccuracies.

• The agents did not restrict Cason's freedom of movement;
• When the agents requested that Cason ride with them to his office, he willingly agreed;
• While at his office, Cason was free to take phone calls and to leave the room, which he did multiple times, indicating that he freely ended his conversation with the agents at multiple points;
• While at his office, Cason was free to consult with counsel, and to end the interview, which he ultimately did; and
• Nothing in the record indicated that Cason was threatened or coerced.

In the opinion linked above, the district court affirmed those findings which controlled the disposition of the motion to suppress.

I write to address two issues -- the grand jury "subject" issue and the Miranda warnings issue.

Grand Jury Subject Issue

Although the key facts are not fully fleshed out, I question whether, in fact, Cason's status was a subject of the grand jury investigation because that term has special meaning in the context of a grand jury investigation.  Keep in mind that the IRS CI Agents were acting as assistants to the prosecutor for the grand jury investigation.  There are reasons for the difference in a grand jury setting and potential consequences if the difference is not respected.

The United States Attorneys manual provides (USAM 9-11.151 - Advice of "Rights" of Grand Jury Witnesses, here):

A "target" is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. An officer or employee of an organization which is a target is not automatically considered a target even if such officer's or employee's conduct contributed to the commission of the crime by the target organization. The same lack of automatic target status holds true for organizations which employ, or employed, an officer or employee who is a target. 

A "subject" of an investigation is a person whose conduct is within the scope of the grand jury's investigation.

Note the expansive definition of subject that almost certainly would include targets, but target is a more narrow definition that does not include all subjects.  Most important, in grand jury settings, the difference between the two categories is critical.  For example, the same USAM stated that:  "It is the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a "target" or "subject" of a grand jury investigation."  In this sense, the two categories are treated as mutual exclusive rather than target being encompassed within subject, although the instructions in that provision of the USAM are to apply to persons in both categories.  Another practical example, in responding to request from a grand jury prosecutor for a proffer session or other type of cooperation, the attorney for the witness should always ask whether the witness is a target or subject of the investigation and receive a direct representation as to the witness' status.  If the witness is a target, the defense attorney should, as a default rule, advise the witness not to cooperate in any way; if the witness is a subject who is not a target, the defense attorney must make a judgment call as to whether to cooperate, with the default position probably being no.  Although in a general sense, the word subject could include target, in grand jury usage, my understanding is that they are mutually exclusive terms.  If the prosecutor represents that a witness is a subject that means that the witness is not at that time a target.  I don't think any reasonable prosecutor would (or should) describe a person who is in fact a target of the investigation as simply a subject of the investigation.  (If the prosecutor does not want to advise as to the status, the prosecutors other option is not to say anything; the prosecutor does not have the option to lie about the status.)  So, in a grand jury context, a statement that a witness is a subject of the investigation is a representation that the witness is not a target.  But, given the potential for the term subject to include target, a careful defense attorney would want and insist that the prosecutor's representation be that the witness is a subject and not a target of the investigation.

So, when operating in a grand jury setting, I would think it important that the the IRS CI agent use the appropriate term to describe the witness (Cason here), and be subject to the same constraints and requirements as the prosecutor just as if the prosecutor were conducting the interview (after all the CI agent as an assistant to a prosecutor is just an extension of the prosecutor).  As noted, in a grand jury investigation, I think that the representation that someone is a subject of the investigation means that the person is not then a target.  Specifically, in Cason, I think that Cason was probably a target at the time and that the representation that he was a subject was potentially misleading.  Indeed, one could argue that. had the IRS CI Agent said that he was a target of the grand jury investigation, Cason might have declined to answer further and sought counsel.

Miranda or Modified Miranda Warnings

The IRS CI agents appear to have given the modified Miranda warnings in noncustodial settins required in IRS CI administrative investigations. Those warnings are (IRM 9.4.5.11.3.1.1  (02-01-2005), Subject of Investigation, here):

2. Advise the subject of the investigation as follows: "In connection with my investigation of your tax liability (or other matter), I would like to ask you some questions. However, first I advise you that under the Fifth Amendment to the Constitution of the United States, I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate you in any way. I also advise you that anything which you say and any documents which you submit may be used against you in any criminal proceeding which may be undertaken. I advise you further that you may, if you wish, seek the assistance of an attorney before responding. Do you understand these rights?"

See also IRM 9.4.5.11.3  (02-01-2005), Duty to Inform Individual of Constitutional Rights and IRM 9.4.5.11.3.1  (05-15-2008), Informing of Constitutional Rights in Non-Custodial Interviews.

In IRS CI administrative investigations, the difference between subject and target of an investigation is not critical.  Indeed, under the definition in the USAM, target means target of the grand jury investigation and an IRS CI administrative investigation is not a grand jury investigation.  So, the use of the word subject is the inclusive word that would include both potential targets and targets (applying that word by analogy).

The IRM further provides the following for interviews in custodial settings (9.4.5.11.3.2  (02-01-2005), Informing of Constitutional Rights in Custodial Interrogations:

1. The Supreme Court has held that when an individual is taken into custody or otherwise deprived of freedom by the authorities, the individual must be advised of the following rights prior to any questioning:
  A. the right to remain silent
  B. that anything the individual says can and will be used against him/her in a court of law
  C. the right to consult an attorney, and if they cannot afford an attorney, one will be appointed prior to any questioning, if desired 

Opportunities to exercise the above rights must be afforded throughout the interrogation. After such warnings have been given and such opportunity afforded to him/her, the individual may knowingly and intelligently waive these rights and agree to make a statement. But unless such warnings and waiver are shown by the prosecution at trial, no evidence obtained as a result of an interrogation may be used against the individual.

I am not sure how the warnings of rights in custodial settings differs materially from the rights warnings in noncustodial settings, but everyone seems to think that the rights warnings in noncustodial settings noted above are not as robust as those required in custodial settings.

The IRS CI agents were not acting as IRS CI agents but as assistants to the grand jury.  Hence, the IRM states the following for noncustodial initerviews (IRM 9.4.5.11.3.1.2  (02-01-2005), Subject of Grand Jury Investigation):

IRS procedures for non-custodial advice of rights does not apply to grand jury investigations. The attorney for the government will provide instructions for advising subjects of their rights. Further, though IRS employees may use their credentials for identification purposes, they should advise those contacted that they are acting as assistants to the attorney for the government in conjunction with an investigation.

So the IRS CI Agents in Cason should have taken instructions from the AUSA acting as prosecutor, but it is unclear whether they just defaulted to the IRM noncustodial setting warnings noted above.  The Court determined that the setting was noncustodial and denied suppression because those warnings were adequate in a noncustodial settings.  For a recent case involving a case where the agents' execution of a search warrant was, under the facts, custodial as to the witness and suppression was granted, see Important Second Circuit Decision on Custody Requirement for Miranda Warnings (Federal Tax Crimes Blog 7/20/16), here.