distinguishing between “the threat of automatic loss of one[’s] livelihood and the threat of an inference that might lead to such a loss”
How later courts described this case
- distinguishing between “the threat of automatic loss of one[’s] livelihood and the threat of an inference that might lead to such a loss”
- “If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, . . . the privilege against self-incrimination would not have been a bar to his dismissal.”
- employee was “told that he would be fired if he did not sign” a waiver of his Fifth Amendment rights
- rejecting Garrity claim when “there is no indication Palmquist was aware of the regulation at all, let alone that he was selectively presented with the” allegedly problematic portion
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 20-30009
21-30121
Plaintiff-Appellee,
D.C. Nos.
v. 3:13-cr-00008-SLG-1
3:13-cr-00008-SLG
JAMES MICHAEL WELLS,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, Chief District Judge, Presiding
Argued and Submitted June 7, 2022
Anchorage, Alaska
Filed December 14, 2022
Before: Andrew D. Hurwitz, Daniel A. Bress, and Holly
A. Thomas, Circuit Judges.
Opinion by Judge Bress
2 UNITED STATES V. WELLS
SUMMARY *
Criminal Law
The panel affirmed James Wells’s convictions, vacated
the district court’s restitution order, and remanded for
further proceedings in a case in which Wells, while a Coast
Guard employee, shot and killed two co-workers at a Coast
Guard station.
Wells contended that under the Fifth Amendment and
Garrity v. New Jersey, 385 U.S. 493 (1967), statements he
made to government investigators should have been
suppressed because they were made under threat of loss of
employment.
The panel’s independent review of the record
confirmed that the investigators did not explicitly threaten
Wells’s job security if he refused to incriminate himself,
and Wells did not argue otherwise. Instead, Wells
advanced a theory of implicit coercion by virtue of an
employment manual, and a letter of caution he received
after allegedly using a fuel card for his personal vehicle,
which, he argued, operated in the background of his
interviews to create “an impermissible penalty situation.”
The panel held that in the absence of a direct threat of loss
of employment, the appropriate framework for the court is
to consider both the public employee’s subjective belief
and the objective reasonableness of that belief to determine
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. WELLS 3
whether the employee’s statements were improperly
coerced; it is only when both elements are satisfied that the
employee is, under Garrity, entitled to suppression of his
statements absent a grant of immunity. The panel rejected
Wells’s argument that United States v. Saechao, 418 F.3d
1073 (2005), controls and sets forth a purely objective test.
Turning to Wells’s Garrity claim within the proper
framework, the panel wrote that the evidence in the record
does not suggest that Wells subjectively believed that either
the employment manual or the letter of caution required
him to answer the investigator’s questions or to waive his
immunity from self-incrimination; to the contrary, the
interview transcripts reveal Wells’s affirmative intent to
cooperate with the investigation in an apparent effort to
make it seem that he had nothing to hide. Having
concluded that Wells did not establish a subjective belief
that he was required to answer the investigators' questions
or suffer an employment consequence, the panel did not
need to consider whether, if Wells had held such a belief, it
would have been objectively reasonable. Thus, Wells was
not implicitly coerced to provide his interview statements,
and the Fifth Amendment did not prevent the introduction
of his statements at trial.
In ordering Wells to pay $1,921,640 in restitution
pursuant to the Mandatory Victims Restitution Act
(MVRA), the district court determined that restitution
should be paid using 80% of the monthly payments from
his retirement and disability benefits. Wells claimed that
under provisions of the Consumer Credit Protection Act, 15
U.S.C. § 1673, that are incorporated into the MVRA, his
retirement and disability benefits constitute “earnings,”
which cannot be garnished more than 25%. The district
court concluded it had discretion under the All Writs Act to
4 UNITED STATES V. WELLS
order garnishment of a higher percentage of the monthly
payments. The panel held that because the MVRA creates
specific statutory requirements for garnishing earnings, the
All Writs Act cannot be used to sidestep those
requirements. The panel vacated the restitution order and
remanded for the district court to determine whether each
of Wells’s benefit payment streams constituted “earnings”
under § 1673; if so, the MVRA limited garnishment of
those funds to 25%.
The panel addressed other issues in a concurrently filed
memorandum disposition.
COUNSEL
Benjamin L. Coleman (argued), Singleton Schreiber
McKenzie & Scott LLP, San Diego, California, for
Defendant-Appellant.
Daniel N. Lerman (argued), Attorney, Appellate Section;
Lisa H. Miller, Deputy Assistant Attorney General;
Kenneth A. Polite Jr, Assistant Attorney General, United
States Department of Justice, Criminal Division,
Washington, D.C.; Bryan Wilson, Attorney; Stephen L.
Corso and Steven E. Skrocki, Assistant United States
Attorneys; John E. Kuhn Jr., United States Attorneys;
Office of the United States Attorney, Anchorage, Alaska;
for Plaintiff-Appellee.
UNITED STATES V. WELLS 5
OPINION
BRESS, Circuit Judge:
On the morning of April 12, 2012, two Coast Guard
employees were shot and killed at a Coast Guard station on
Kodiak Island, Alaska. A jury found that their co-worker,
James Wells, had committed the murders. In this opinion,
we primarily address Wells’s contention that under the
Fifth Amendment, statements he made to government
investigators should have been suppressed because they
were made under the threat of loss of employment. We
hold that Wells’s Fifth Amendment self-incrimination
challenge fails because he was not coerced to speak with
investigators on pain of losing his job.
In this opinion and an accompanying memorandum
disposition, we affirm Wells’s convictions. But we vacate
the district court’s restitution order and remand for further
proceedings limited to that issue because the district court
mistakenly relied on the All Writs Act in determining how
certain benefits would be garnished.
I
A
James Wells, Richard Belisle, and James Hopkins
worked together at the United States Coast Guard
Communication Station (COMMSTA) on Kodiak Island,
Alaska. COMMSTA is “the 911 of the Bering,” fielding
calls from mariners in distress and military aircraft passing
through the airspace. After a lengthy military career, Wells
for over twenty years worked as a civilian COMMSTA
mechanic, maintaining the radio antennas used to
6 UNITED STATES V. WELLS
communicate with aircraft and vessels. Belisle was the
“master rigger” responsible for ensuring that antenna
equipment was properly and safely rigged. Hopkins
supervised both men.
At 6:48 a.m. on April 12, 2012, surveillance video
captured Wells’s white pickup truck driving on the main
road towards COMMSTA. Wells took this route every
morning to get to work. On this particular day, Wells
pulled off at the Kodiak airport, which is located on the
same road about two miles from COMMSTA.
Wells’s wife, Nancy, had left her car, a blue 2001
Honda CR-V, in the airport parking lot while on a business
trip. At 7:09 a.m., security footage showed a blue car
approaching the COMMSTA antenna maintenance facility
(also known as the “rigger shop”), where Hopkins and
Belisle were already working. The government’s theory
was that Wells had swapped his vehicle for Nancy’s at the
airport and driven it to COMMSTA, where he then shot
Hopkins and Belisle.
Surveillance video showed a blue vehicle leaving the
rigger shop at 7:14 a.m. By 7:22 a.m., Wells was seen
driving his white truck away from the airport towards his
residence. Altogether, this amounted to 34 minutes after
Wells first arrived at the airport.
At 7:30 a.m., Wells called Hopkins (now deceased) and
left a voicemail explaining that he would be late to work
because he had a flat tire. Wells, Belisle, and Hopkins
usually arrived around 7:00 a.m., while other COMMSTA
employees typically came in later. Wells also left
voicemails for Belisle (also deceased) and Scott Reckner, a
supervisor whom Wells had only “very rarely” called in the
past. After leaving these voicemails, Wells arrived at
UNITED STATES V. WELLS 7
COMMSTA at about 8:30 a.m., after the murders had been
discovered. When Reckner informed Wells of the murders,
Wells responded, “Shit. I had a flat tire.”
COMMSTA authorities instructed all employees to
remain at the station so that they would stay safe and be
able to assist in the investigation. Shortly thereafter, the
FBI and the Coast Guard Investigative Service (CGIS)
arrived and launched an investigation. The investigators
started by interviewing COMMSTA personnel. We
recount the interviews with Wells in some detail because
they form the basis for the principal issue that we address
in this opinion.
Agents interviewed Wells four times in the evening of
April 12 (the day of the murders), and twice more on the
morning of April 13. In the first interview, which began
around 7:21 p.m., Wells volunteered that “the only reason I
wasn’t here this morning at 7:00 was I had [a] flat tire in
my truck.” However, Wells admitted that he did not know
exactly where or when his tire went flat, and that he did not
“really look at it to see what was wrong.” He also
answered questions about his background and duties at
COMMSTA, the work environment, and his relationships
with Belisle and Hopkins.
In the second interview, which began at 8:04 p.m., the
agents asked Wells if they could search his truck to
“verify” his story about the flat tire, and Wells replied,
“Knock yourself out.” The agents told Wells “[t]his is
totally voluntary” and “you can refuse this.” Wells
reaffirmed his consent. The agents also asked Wells if they
could search his cell phone, and Wells again agreed.
Before both searches, Wells signed acknowledgments of
8 UNITED STATES V. WELLS
his rights. The agents then searched Wells’s truck and
found in the back a tire that had been punctured by a nail.
Wells was interviewed twice more that evening, but the
interviews were brief. The agents initially told Wells that
they had follow-up questions after speaking to other
employees, but after only three minutes (and no questions),
they stopped the interview because Wells said that he
needed to take medication. In the final session that
evening, the investigators conducted a several-minute
interview in which they suggested “having [Wells’s] hands
wiped for gunshot residue” to “see what his reaction would
be.” Wells agreed to the test. Wells would later testify that
he had interpreted these interviews as “just . . . general
information gathering” and nothing “out of the ordinary.”
By the next morning, the agents had reviewed the
surveillance footage of the road leading to COMMSTA.
The footage showed Wells’s truck driving to and from the
airport. The agents decided to interview Wells again.
Before initiating the interview, the agents informed Wells
of his rights under Miranda v. Arizona, 384 U.S. 436
(1966), emphasizing that “you don’t have to talk to us” and
“don’t have to answer” questions. Although Wells said he
was “a little concerned now,” he consented to the interview
and signed a Miranda waiver. At one point in the
interview, Wells declined to answer questions about his
disciplinary issues (“Nope, I’d rather not”). But he
otherwise responded to the questioning.
After substantial questioning about the layout,
operations, and employees of the rigging shop, the agents
turned to the previous day’s events. Wells reiterated that as
he was driving to work, he noticed he had a flat tire. He
UNITED STATES V. WELLS 9
then turned into a parking lot by the airport to check the
tire, after which he decided to go back home to change it.
The agents informed Wells that the security footage
showed a 34-minute gap between Wells’s truck driving to
and from the airport. When asked to account for that time,
Wells said he “d[idn’t] have a reasonable explanation for
it.” One agent told Wells that they were “baffled,” to
which Wells replied, “Well, so am I.” An investigator told
Wells that “[t]hings aren’t adding up with that story,” and
Wells simply responded, “I don’t have [a] theory at the
moment.”
Later that day, investigators asked to interview Wells
again, explaining that “your stories aren’t lining up with the
factual time lines that we have.” Wells asked, “Are you
accusing me?” The agents said “[a]t this point, yes Jim.”
Wells terminated the interview.
Meanwhile, attempting to locate the blue vehicle they
had seen in the security footage, the agents went to the
airport, where they found Nancy’s blue CR-V. They later
learned that the car was parked in a different spot than
where Nancy had left it, and there was mail addressed to
Wells in the front seat that had not previously been there.
After a lengthy process to rule out other suspects—which
involved obtaining a list of all vehicles registered in
Kodiak, identifying those that potentially matched the one
in the video, and interviewing the owners—the
investigators came to believe that the vehicle in the video
was, in fact, Nancy’s blue CR-V.
The agents searched Wells’s home. While they did not
recover the murder weapon, they did discover the same
type of ammunition found at the crime scene. Many
10 UNITED STATES V. WELLS
months later, on February 15, 2013, Wells was arrested for
the murders of Hopkins and Belisle.
B
On February 19, 2013, Wells was indicted on two
counts of first-degree murder within the maritime and
territorial jurisdiction of the United States, 18 U.S.C.
§ 1111; two counts of murder of a federal employee, 18
U.S.C. § 1114; and two counts of using a firearm in relation
to a crime of violence, 18 U.S.C. § 924(c). A jury returned
guilty verdicts on all counts. Wells was sentenced to life in
prison and ordered to pay restitution. See United States v.
Wells, 879 F.3d 900, 907–08 (9th Cir. 2018) (Wells I).
Wells appealed. He raised various legal challenges to
his conviction and sentence, including that the district court
had erred in denying his motion to suppress his interview
statements under Miranda. We affirmed the denial of the
motion to suppress, holding that “Wells was not in custody,
and therefore no Miranda warnings were required.” United
States v. Wells, 719 F. App’x 587, 590 (9th Cir. 2017). But
concluding that the government had engaged in
prosecutorial misconduct during trial, we reversed Wells’s
conviction. Wells I, 879 F.3d at 907–08. We also ordered
reassignment of the case to a new district court judge. Id.
at 938.
Before Wells’s second trial, he again moved to suppress
the statements he made during the interviews. This time,
Wells advanced a different theory, claiming that the
investigators had violated his Fifth Amendment rights by
coercing him to incriminate himself under threat of loss of
employment. Wells maintained that the statements should
be excluded under Garrity v. New Jersey, 385 U.S. 493
UNITED STATES V. WELLS 11
(1967), because investigators had not warned Wells that he
faced no adverse employment consequences if he declined
to answer questions. The district court denied Wells’s
motion to suppress. Audio recordings of Wells’s
interviews with the investigators were played for the jury
during trial.
In its case in chief, the government presented the theory
that Wells had been provoked by various workplace
incidents leading up to the murders. Prior to the murders,
Wells had been disciplined for misconduct. In April 2011,
Wells received a “letter of expectations” because he
frequently missed work without informing his supervisors.
Wells received another cautionary letter in January 2012,
after he allegedly used a COMMSTA fuel card for his
personal vehicle.
Wells’s supervisor, Scott Reckner, testified to further
difficulties Wells experienced at COMMSTA. In late
2011, Wells began having health problems and Reckner
had to ask Hopkins and Belisle to “step[] up” to cover
Wells’s responsibilities. Because of this, Reckner decided
to send Hopkins and Belisle to an annual conference that
Wells had attended in the past, which angered Wells. On
the day before the murders, Wells and Belisle disagreed
over how to install a particular antenna—an issue typically
within Wells’s purview—and Reckner sided with Belisle,
praising Belisle for a “great idea.”
The government put on nearly sixty fact witnesses and
eight experts. These included a forensic tire expert who
analyzed Wells’s tire and determined that it was “pristine,”
with “no evidence of the tire ever having been run low or
flat.” The expert observed that the nail in the tire lacked
any surface abrasions, opining that “the nail was inserted
12 UNITED STATES V. WELLS
manually in the tire as opposed to being picked up on the
highway.” The jury was also shown the footage of the blue
vehicle driving to the rigger shop immediately before and
after the murders, as well as a video reenactment that
investigators had staged on April 19, 2012. Multiple
experts opined that the car shown in the security footage
was consistent with a 2001 Honda CR-V.
Wells testified in his own defense. He maintained that,
as he had told the investigators, he pulled into an airport-
area parking lot upon realizing that he had a flat tire. But in
an attempt to explain the previously unaccounted-for 34-
minute gap between his truck arriving at and leaving the
airport, Wells now claimed that he had “messed his pants”
as he exited his truck at the airport. He testified that he
went to use a bathroom in the airport, where he “[h]ad
another bout of diarrhea” and took time to clean himself.
Wells claimed he then drove home from the airport to
change the tire. He testified that he found a nail embedded
in the tire, which he pulled out and “[t]ossed . . . over into
the crick.” But Wells then realized that “I shouldn’t do that
because now I won’t find the hole,” so he claimed he
reinserted a different nail in the tire. After this, Wells
drove to COMMSTA. Wells testified that he wore his
soiled pants that day and the following day, in an attempt to
explain why the investigators did not find the pants when
they searched his house. Wells also said that he had not
disclosed the bathroom incident during the interviews
because “[i]t was very personal and embarrassing.”
In its closing argument, the government emphasized
that Wells’s new account did not align with what he told
investigators when interviewed on April 12 and 13, 2012.
The government also argued that in his interviews with
UNITED STATES V. WELLS 13
investigators, Wells was evasive, gave explanations that did
not add up, and demonstrated an awareness of his own
guilt.
On October 8, 2019, the jury returned guilty verdicts on
all counts. The district court sentenced Wells to life in
prison and ordered him to pay $1,921,640 in restitution.
Wells timely appealed his conviction and restitution order.
In a separate memorandum disposition filed
concurrently with this opinion, we reject various of Wells’s
challenges to his convictions. Here, we address the
remaining issues. We have jurisdiction under 18 U.S.C.
§ 3742 and 28 U.S.C. § 1291. We review the district
court’s legal conclusions de novo and its factual
determinations for clear error. See United States v.
Gregory, 322 F.3d 1157, 1160–61 (9th Cir. 2003).
II
We first address whether Wells’s statements to
investigators in the April 2012 interviews were obtained in
violation of the Fifth Amendment.
A
The Fifth Amendment guarantees that “[n]o person . . .
shall be compelled in any criminal case to be a witness
against himself.” U.S. Const. amend. V. Although the
right against self-incrimination is a quintessential “‘trial
right of criminal defendants,’” its protection has been
extended to “bar[] the government from engaging in certain
pretrial conduct.” Chavez v. Robinson, 12 F.4th 978, 985
(9th Cir. 2021) (quoting United States v. Verdugo-
Urquidez, 494 U.S. 259, 264 (1990)). Relevant here, the
Fifth Amendment prohibits the government from
14 UNITED STATES V. WELLS
“compelling a person to make incriminating statements
(absent a grant of immunity) or punishing a person who
refuses to make such statements.” Id.
Normally, if a person “desires the protection of the
privilege, he must claim it or he will not be considered to
have been ‘compelled’ within the meaning of the
Amendment.” Minnesota v. Murphy, 465 U.S. 420, 427
(1984) (quoting United States v. Monia, 317 U.S. 424, 427
(1943)). But the Supreme Court has recognized certain
exceptions “to the general rule that the Fifth Amendment
privilege is not self-executing.” Id. at 434. The most
notable involves custodial interrogations. See Miranda v.
Arizona, 384 U.S. 436 (1966); see also Roberts v. United
States, 445 U.S. 552, 560 (1980) (“Miranda’s requirement
of specific warnings creates a limited exception to the rule
that the privilege must be claimed . . . .”).
A different exception is at issue here: the Supreme
Court has held that the constitutional protection against
self-incrimination also applies when a government
employer coerces an employee to give up his right against
self-incrimination on threat of loss of employment.
Garrity, 385 U.S. at 496, 500. As we have explained,
“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). Such coerced testimony generally cannot be
introduced in subsequent criminal proceedings against the
employee. Garrity, 385 U.S. at 500.
This exception turns not merely on whether the
government “compelled an individual to appear and
testify,” but on whether it “also sought to induce him to
forgo the Fifth Amendment privilege by threatening to
UNITED STATES V. WELLS 15
impose economic or other sanctions ‘capable of forcing the
self-incrimination which the Amendment forbids.’”
Murphy, 465 U.S. at 434 (quoting Lefkowitz v.
Cunningham, 431 U.S. 801, 806 (1977)). For this reason, if
proper immunity is provided to the witness, the government
may require that incriminating questions be answered. See
Chavez, 12 F.4th at 987.
The Fifth Amendment also does not apply to
“voluntary” statements, or in situations when “a person
does not invoke the privilege against self-incrimination and
any pressure to make incriminating statements does not rise
to the level of compulsion.” Id. Indeed, we have
confirmed that public employers retain the right “to
appropriately question an employee about matters relating
to the employee’s possible misconduct while on duty,” and
that such questioning, on its own, does not trigger the Fifth
Amendment or require application of the exclusionary rule.
Aguilera, 510 F.3d at 1171; see also Gardner v. Broderick,
392 U.S. 273, 278 (1968) (“If appellant, a policeman, had
refused to answer questions specifically, directly, and
narrowly relating to the performance of his official duties,
. . . the privilege against self-incrimination would not have
been a bar to his dismissal.”). The ultimate test is
compulsion to be a witness against oneself on pain of
penalty: “If there is no compulsion . . . then the Self-
Incrimination Clause is not implicated.” Chavez, 12 F.4th
at 987; see also Cunningham, 431 U.S. at 806 (“[T]he
touchstone of the Fifth Amendment is compulsion . . . .”).
Compulsion is most obviously present when a public
employer directly threatens an employee with the loss of a
job (or a comparable penalty) unless the employee gives
answers to incriminating questions that could later be used
against him in a criminal proceeding. These were the facts
16 UNITED STATES V. WELLS
in Garrity, the seminal case in which the Supreme Court
extended the Fifth Amendment to the public employment
context. In that case, New Jersey’s Attorney General
investigated allegations that local police officers were
fixing traffic tickets. 385 U.S. at 494. Before being
questioned, each officer was cautioned that “he had the
privilege to refuse to answer if the disclosure would tend to
incriminate him” but that “if he refused to answer he would
be subject to removal from office.” Id. The officers
answered the questions, and their admissions were used in
subsequent criminal proceedings against them. Id. at 495.
The Supreme Court held that the Attorney General’s
conduct violated the Fifth Amendment because the officers
were “deprived of [the] ‘free choice to admit, to deny, or to
refuse to answer,’” and, as a result, their statements were
“infected by the coercion.” Id. at 496–97 (quoting Lisenba
v. California, 314 U.S. 219, 241 (1941)). It was
impermissible to put the officers to “[t]he choice . . .
between self-incrimination or job forfeiture.” Id. at 496.
The Supreme Court cases that followed Garrity
likewise involved direct threats of a penalty or sanction if
public employees were to invoke their Fifth Amendment
rights. See Uniformed Sanitation Men Ass’n v. Comm’r of
Sanitation, 392 U.S. 280, 282 (1968) (employee was told
that if he “refused to testify with respect to his official
conduct or that of any other city employee on the grounds
of self-incrimination, his employment and eligibility for
other city employment would terminate”); Gardner, 392
U.S. at 274 (employee was “told that he would be fired if
he did not sign” a waiver of his Fifth Amendment rights).
Wells was not subjected to direct coercion. The
investigators never threatened Wells’s job security or
UNITED STATES V. WELLS 17
suggested in any way that his failure to self-incriminate
would lead to his firing or any other form of discipline. As
we noted in Wells’s prior appeal, the April 12 interviews
were not “aggressive or accusatory,” and Wells was
“interviewed[] in the same manner as all other COMMSTA
employees.” Wells I, 719 F. App’x at 589; see also id. at
590–91 (noting that Wells was “never physically
restrained,” “pressured to confess to anything,” or “singled
out or made to feel like a target of the investigation,” and
that the April 12 interviews were “‘essentially amicable’”).
Wells himself described his discussions with investigators
as “just . . . general information gathering” and nothing
“out of the ordinary.” And by April 13, Wells had received
Miranda warnings, which explicitly informed him that any
further cooperation had to be voluntary. Our independent
review of the record confirms that the investigators did not
explicitly threaten Wells’s job security if he refused to
incriminate himself, and Wells does not argue otherwise.
B
Instead, Wells advances a theory of implicit coercion.
In support of this argument, Wells points to a Coast Guard
employment manual, 1 which provides that “[a]ll civilian
employees are responsible for . . . [p]roviding full and
truthful answers during any inquiry or investigation.” In a
separate provision, the manual lists an employee’s failure
to “give oral or written statements or testimony or
cooperate otherwise in connection with any official inquiry,
investigation, or proceeding” as “offenses” that could
trigger discipline ranging from “[w]ritten reprimand to
1
We grant Wells’s request to take judicial notice of the manual.
18 UNITED STATES V. WELLS
removal.” Similar consequences could befall an employee
who “fail[s] to provide honest and complete information to
investigators or display[s] lack of candor in any official
inquiry or proceeding; [or] fail[s] to provide material fact
or pertinent information.” Wells also claims that the letter
of caution he received after the fuel card incident required
him to incriminate himself or risk losing his job because the
letter stated that “any future instances of misconduct may
result in disciplinary action being taken against you, up to
and including removal from Federal service.”
Wells alleges that the employment manual and the letter
of caution, either separately or in combination, operated in
the background of his interviews to create “an
impermissible penalty situation.” In his view, these
documents constituted an “objective showing” that he faced
potential termination or other sufficiently severe adverse
employment consequences for failing to answer
incriminating questions. This, he asserts, “is all that is
required” to trigger the exclusionary rule.
We have previously recognized the possibility that
implicit threats in the public employment context may
produce unconstitutional coercion in violation of the Fifth
Amendment. Our leading case in this area is Aguilera v.
Baca, 510 F.3d 1161 (9th Cir. 2007). There, a police
department investigated a complaint of excessive force
against its officers. Id. at 1165. Like Wells, the deputies in
Aguilera operated under certain employment policies that
required truthfulness in internal investigations. Id. The
police department’s Manual of Policies and Procedures
established “an affirmative duty to cooperate” during
investigations, a violation of which could “subject a deputy
to administrative discipline.” Id.
UNITED STATES V. WELLS 19
During an internal investigation into police misconduct,
the deputies refused to provide statements to an
investigator. Id. at 1166. While the investigation
continued, the deputies were reassigned to different roles
and shifts, but no charges were brought, and the deputies
were eventually restored to their former roles. Id. at 1166–
67. Later, the deputies sued under 42 U.S.C. § 1983
alleging, as relevant here, that the investigation violated the
deputies’ Fifth Amendment rights by putting them to an
unconstitutional choice between providing statements that
could later be used against them or temporarily losing their
preferred job responsibilities. Id. at 1171.
We held that the police department did not run afoul of
Garrity. Id. at 1171. The investigator’s questioning of the
deputies did not violate the Fifth Amendment because “the
deputies were not compelled to answer the investigator’s
questions or to waive their immunity from self-
incrimination. Indeed, it appears that the deputies were
never even asked to waive their immunity.” Id. at 1172.
We agreed that “there may have been some initial coercion
to cooperate and answer questions.” Id. at 1172 n.5. But
that was not tantamount to “compelling the officers to
waive their Fifth Amendment rights.” Id.
C
Although the reasoning and result in Aguilera point
against Wells, Aguilera did not articulate a full legal
framework for determining when an employer policy or
other background condition of employment produces Fifth
20 UNITED STATES V. WELLS
Amendment coercion. 2 Other circuits have broached the
question, however, and we find their decisions informative.
In United States v. Smith, 821 F.3d 1293 (11th Cir.
2016), for instance, a lieutenant at a state prison was
internally investigated in connection with an incident that
resulted in an inmate’s death. Id. at 1296–97. Smith
prepared a false incident report that absolved him of
responsibility, and he repeated the fabricated narrative to
investigators. Id. at 1297–99. The investigators later
shared Smith’s statements with the FBI. Id. at 1299.
The Eleventh Circuit concluded that Garrity allowed
the use of Smith’s statements at his criminal trial. The
court explained that “[i]n the absence of a direct threat of
termination,” a Garrity violation requires two elements: (1)
“the officer must have in fact believed the statements to be
compelled on threat of loss of job,” and (2) “this belief
must have been objectively reasonable.” Id. at 1302–03
(quoting United States v. Vangates, 287 F.3d 1315, 1321–
22 (11th Cir. 2002)).
In Smith, both elements were lacking. First, the court
concluded that Smith had “failed to present any evidence”
2
Wells argues that Aguilera is inapposite because in that case, the Fifth
Amendment claim was brought by the officers in civil proceedings
under § 1983. But Aguilera resolved the deputies’ claims on the first
prong of the qualified immunity analysis, namely, whether there had
been a violation of the officers’ constitutional rights. See Aguilera, 510
F.3d at 1171–72. Wells also points out that in Aguilera, the officers’
statements were not used in subsequent criminal proceedings. But we
offered that as an alternate ground for decision, making clear that the
officers’ claims would fail regardless for lack of coercion. Id. at 1173–
74.
UNITED STATES V. WELLS 21
demonstrating a subjective belief that he would lose his job
if he failed to provide self-incriminating information. Id. at
1303. On the contrary, “Smith’s motive to make the
written statements more than likely was to deflect suspicion
and avoid jail rather than a desire to retain his
employment.” Id. (alterations and quotations omitted).
And secondly, while the prison’s regulations required
Smith to write an incident report and cooperate with the
investigation on pain of “progressive disciplinary
sanctions,” the regulations did not threaten termination, and
“the mere possibility of future discipline [was] not enough
to trigger Garrity protection.” Id. at 1302. In the Eleventh
Circuit’s view, “Garrity does not stand for the proposition”
that a statement is coerced whenever there is a “speculative
possibility of termination” if the public employee refuses to
answer incriminating questions. Id. at 1303 (quotations
omitted); see also United States v. Waldon, 363 F.3d 1103,
1112–13 (11th Cir. 2004) (per curiam) (applying the
subjective-objective test in affirming the denial of a motion
to suppress because the regulations in question “reflect only
a general expectation that police officers will cooperate and
testify”).
The test used by the Eleventh Circuit originated in
United States v. Friedrick, 842 F.2d 382 (D.C. Cir. 1988).
See Vangates, 287 F.3d at 1322 & n.7 (adopting the test set
forth in Friedrick). Friedrick involved an FBI agent who
was interviewed numerous times over the course of several
months as part of an internal investigation. Friedrick, 842
F.2d at 384–87. Before the first interviews, Friedrick was
promised he would be immune from criminal prosecution
based on his statements. Id. at 385–87. On appeal, he
argued that these guarantees implicitly extended to the later
interviews, as well. Id. at 393–94.
22 UNITED STATES V. WELLS
The court concluded that for the Fifth Amendment to
apply under Garrity, “Friedrick must have in fact believed
his January statements to be compelled on threat of loss of
job and this belief must have been objectively reasonable.”
Id. at 395. Applying this test—and noting that Friedrick
had expressly stated during the interview that he thought
his statements were immune—the court concluded that
Garrity prohibited the introduction of Friedrick’s
statements in subsequent criminal proceedings. Id. at 397–
401.
We find further support for this subjective-objective
approach in United States v. Palmquist, 712 F.3d 640 (1st
Cir. 2013). In that case, a government employee had filed a
fraudulent claim for disability benefits with the Veterans
Administration. Id. at 642–43. An agency investigator
interviewed him concerning this claim. Id. at 644. Before
the interview, the investigator informed Palmquist of his
rights, and Palmquist agreed to cooperate. Id.
Palmquist nonetheless later claimed that he had been
implicitly coerced by the Veterans Administration
Standards of Conduct, which provided that “[e]mployees
will furnish information and testify freely and honestly in
cases respecting employment and disciplinary matters,” and
that refusal to testify “may be ground for disciplinary
action.” Id. at 645–46. The Standard of Conduct went on
to clarify that employees need not provide incriminating
testimony. Id.
The First Circuit rejected Palmquist’s argument. Id. at
646. Although the court did not set forth an all-
encompassing framework for Fifth Amendment claims in
the government employment context, the court relied on
both subjective and objective considerations in its analysis.
UNITED STATES V. WELLS 23
The court explained that Palmquist had no reason to believe
that he would be terminated for refusing to self-incriminate:
the Standard of Conduct was “not inherently coercive,” and
“there [wa]s no indication Palmquist was aware of the
regulation at all, let alone that he was selectively presented
with the coercive portion of the regulation.” Id. at 645–46.
The court also clarified that, to the extent that
Palmquist’s silence gave rise to “potentially unfavorable
inferences” that could in turn lead to an adverse
employment action, this chain of events was “too
conditional” to constitute coercion under Garrity. Id. at
645, 647; see also United States v. Stein, 233 F.3d 6, 16
(1st Cir. 2000) (distinguishing between “the threat of
automatic loss of one[’s] livelihood and the threat of an
inference that might lead to such a loss”).
The reasoning in Palmquist aligned with earlier First
Circuit case law establishing that absent an objectively
coercive threat, “the subjective fears of [a] defendant as to
what might happen if he refused to answer” cannot trigger
Garrity’s exclusionary rule. United States v. Indorato, 628
F.2d 711, 716 (1st Cir. 1980). In Indorato, there was “no
overt threat that defendant would be dismissed if he refused
to answer the questions asked.” Id. at 715. Instead, the
defendant claimed “such threat was implied because the
state police departmental rules . . . provided for the
dismissal of any officer who refused to obey the lawful
order of superiors.” Id. The First Circuit rejected this
argument because “[t]here is nothing in the record to
suggest that the rules have been interpreted to mean that a
state police officer who refuses on [F]ifth [A]mendment
grounds to comply with an order to provide self-
incriminating statements would be dismissed.” Id. at 716.
24 UNITED STATES V. WELLS
D
It is apparent that the courts that have addressed
Garrity’s application to government employment policies
(or similar background rules alleged to create implicit
coercion in the public employment context) have coalesced
around a similar framework. Under this framework, courts
consider both the public employee’s subjective belief and
the objective reasonableness of that belief to determine
whether the employee’s statements were improperly
coerced.
We too conclude that in the absence of a direct threat of
loss of employment, this framework is appropriate for
assessing whether government employment policies violate
the rule in Garrity. The core of the Fifth Amendment is the
protection against coerced self-incriminating testimony.
And for an employee to be coerced, he must both be
objectively threatened with a substantial adverse
employment consequence for refusing to incriminate
himself and be subjectively aware of that penalty.
Although assessment of these objective and subjective
elements will turn on the facts of each case, it is only when
both elements are satisfied that the employee is denied the
“free choice to admit, to deny, or to refuse to answer”
incriminating questions, and thus entitled to suppression of
his statements absent a grant of immunity. See Garrity,
385 U.S. at 496 (quotation marks omitted).
Wells resists this framework, urging us to consider only
whether the Coast Guard policies on their face violate
Garrity. Wells argues that our decision in United States v.
Saechao, 418 F.3d 1073 (9th Cir. 2005), controls and sets
forth a purely objective test—one that does not consider
whether the employee in fact believed he could lose his job
UNITED STATES V. WELLS 25
if he refused to waive his Fifth Amendment rights. That is
not correct.
As a threshold matter, Saechao involved an allegedly
coercive probation condition, not a policy of government
employment. See id. at 1075. It is true that in both
contexts, courts have applied the same high-level principle
that “a State may not impose substantial penalties because a
witness elects to exercise his Fifth Amendment right.”
Murphy, 465 U.S. at 434 (citing Cunningham, 431 U.S. at
805). But we have never suggested that in assessing
allegations of implicit coercion, government employees and
individuals on probation are identically situated. For
example, it may be easier to infer an individual’s
familiarity with his conditions of probation, given that his
probation officer must instruct him as to the court’s
specified probation conditions and must “provide him with
a written statement clearly setting forth all such
conditions.” 18 U.S.C. § 3603(1). In many cases,
moreover, the consequences for violating a probation
condition—which can be dire—will be more apparent to an
individual on probation than in an analogous situation in
the employment context. Perhaps most fundamentally,
“[p]robation, like incarceration, is a form of criminal
sanction imposed by a court.” United States v. Knights,
534 U.S. 112, 119 (2001) (quotation marks omitted).
Individuals on probation “do not enjoy the absolute liberty
to which every citizen is entitled.” Id. This fact is indeed
“[i]nherent in the very nature of probation.” Id. As a
general matter, that context likely creates different
assumptions and expectations about probation conditions,
as compared to conditions of employment.
Tellingly, we did not even mention Saechao in
Aguilera. Saechao found it significant that the probationer
26 UNITED STATES V. WELLS
was required to “answer all reasonable inquiries,” 418 F.3d
at 1078. In Aguilera, by contrast, we expressly recognized
there may have been “some initial coercion to cooperate
and answer questions,” but we held that this initial coercion
was not equivalent to “compelling the officers to waive
their Fifth Amendment rights” when “the deputies were
never even asked to waive their immunity.” 510 F.3d at
1172 & n.5. Given that it arose in the public employment
context, the more applicable precedent is Aguilera.
In any event, Saechao actually supports our conclusion
that employees must demonstrate both a subjective belief of
an improper penalty and the objective reasonableness of
that belief. In Saechao, the probationer met with his intake
officer “to review the conditions of his probation,”
including the condition that required him to “promptly and
truthfully answer all reasonable inquiries” under threat of
“arrest, revocation of probation, or modification of
conditions.” 418 F.3d at 1075. He also signed a form
acknowledging these conditions. Id. We specifically noted
that the probationer “was instructed on two occasions” as to
his probation conditions. Id. at 1081.
There was thus no question in Saechao as to the
probationer’s subjective awareness of the probation
conditions. And we did not suggest in Saechao that an
employee’s subjective beliefs (which, we note, could be
demonstrated through circumstantial evidence) are
irrelevant in assessing Fifth Amendment claims under
Garrity. We therefore reject Wells’s contention that
Saechao requires a purely objective test when evaluating
Garrity claims based on public employer policies.
UNITED STATES V. WELLS 27
E
With the proper framework established, we now turn to
Wells’s Garrity claim. We conclude that the district court
did not err in admitting Wells’s statements from the April
2012 interviews.
The evidence in the record does not suggest that Wells
subjectively believed that either the Coast Guard Manual or
the letter of caution regarding the fuel card required him “to
answer the investigator’s questions or to waive [his]
immunity from self-incrimination.” Aguilera, 510 F.3d at
1172. Wells never expressed this belief, either during the
interviews or when he testified in his own defense at trial.
And there is no basis by which to infer such a subjective
belief, either.
To the contrary, the interview transcripts reveal Wells’s
affirmative intent to cooperate with the investigation in an
apparent effort to make it seem that he had nothing to hide.
See Smith, 821 F.3d at 1303 (similar). At one point, Wells
went so far as to say that if the killer were found, he would
consider “tak[ing] matters into [his] own hands” because it
was “like somebody, you know, hurt one of your family
members.” At another point, Wells offered that the
murders may have been part of a robbery gone bad,
emphasizing that the rigger shop contained “lots of stuff in
there worth stealing” and that theft had happened in the
past.
Except at the end of the last interview, when Wells
invoked his Miranda rights, the interviews were friendly
and non-confrontational. As the district court noted,
“[t]hroughout the six interviews, Mr. Wells never
expressed concern that his employment would be affected
28 UNITED STATES V. WELLS
if he did not participate, even when he and the investigators
discussed his long service with the Coast Guard.” And
when Wells was told that a particular inquiry was
voluntary—such as the search of his vehicle, the search of
his phone, or his participation in the April 13 interviews—
he readily agreed to it. Wells also sometimes volunteered
information that went beyond the scope of the questions
asked.
Eventually, Wells invoked his Miranda rights and
terminated the final interview. Although Wells notes that
ending the last interview was not necessarily incompatible
with a belief that he would face adverse employment
consequences as a result, it does tend to suggest that Wells
knew he was entitled to draw a line. And there is no
indication Wells drew that line based on any perceived
threat of losing his job. Indeed, earlier in the April 13
interviews, Wells had no difficulty expressing his
unwillingness to answer questions about his own
disciplinary issues at COMMSTA, a topic integrally related
to his employment.
In addition, although Wells testified about receiving the
letter of caution, there is no evidence that he was aware of
the Coast Guard employment manual. See, e.g., Palmquist,
712 F.3d at 646 (rejecting Garrity claim when “there is no
indication Palmquist was aware of the regulation at all, let
alone that he was selectively presented with the” allegedly
problematic portion). Wells did not testify that he had read
the manual. As the district court found, “Mr. Wells has not
submitted any evidence that he reviewed or was otherwise
familiar with this manual or any applicable Coast Guard
regulation.”
UNITED STATES V. WELLS 29
Having concluded that Wells did not establish a
subjective belief that he was required to answer the
investigators’ questions or suffer an employment
consequence, we need not consider whether, if Wells had
held such a belief, it would have been objectively
reasonable. In short, Wells was not implicitly coerced to
provide his interview statements, and the Fifth Amendment
did not prevent the introduction of his statements at trial.
The district court correctly denied Wells’s motion to
suppress. 3
III
We next address Wells’s challenge to his restitution
order. The district court ordered Wells to pay $1,921,640
in restitution pursuant to the Mandatory Victims Restitution
Act (MVRA). The court further determined that restitution
should be paid using 80% of the monthly payments from
Wells’s Thrift Savings Plan, military retirement benefits,
civil service retirement benefits, and disability benefits
payments.
Wells argues that the district court erred in ordering
80% garnishment of these monthly funds. Wells points out
that the MVRA incorporates provisions of the Consumer
3
Wells also urges us to order the suppression of his statements to
investigators using our supposed “supervisory powers” over federal
employees. Effectively, Wells asks that we create a “non-
constitutional” rule of practice that would govern federal government
investigations, requiring a “Garrity waiver” before any statements by
government employees can be introduced at trial. Even assuming we
have the power to create such a rule, which is hardly clear, we would
decline to do so for the reasons already given.
30 UNITED STATES V. WELLS
Credit Protection Act (CCPA), which limits “the maximum
part of the aggregate disposable earnings of an individual
for any workweek which is subjected to garnishment” to
“25 per centum of his disposable earnings for that week.”
15 U.S.C. § 1673; see 18 U.S.C. § 3613(a)(3) (“[T]he
provisions of section 303 of the Consumer Credit
Protection Act (15 U.S.C. 1673) shall apply to enforcement
of the judgment. . . .”). Wells claims that his retirement
and disability benefits constitute “earnings” for purposes of
15 U.S.C. § 1673, and that these funds thus cannot be
garnished more than 25%.
The district court acknowledged the “complex”
“interface between the MVRA and federal consumer
protection laws.” But the court declined to decide how the
CCPA might apply to Wells’s benefits payments because
the court concluded that regardless, it had discretion under
the All Writs Act to order garnishment of a higher
percentage of Wells’s monthly payments.
Although a few other district courts have relied on the
All Writs Act in similar situations, see United States v.
Greco, 2013 WL 101931, at *2 (N.D. Ohio Jan. 8, 2013);
United States v. Cunningham, 866 F. Supp. 2d 1050, 1062
(S.D. Iowa 2012), we find that approach mistaken, and the
government does not defend it. The All Writs Act provides
that federal courts “may issue all writs necessary or
appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” 28 U.S.C.
§ 1651(a). The Act “codifies the courts’ inherent authority
to ‘fashion appropriate modes of procedure’ necessary to
the exercise of the judicial function.” Perez v. Barr, 957
F.3d 958, 967 (9th Cir. 2020) (quoting Harris v. Nelson,
394 U.S. 286, 299 (1969)). But because the Act does not
enlarge a court’s jurisdiction, “‘[w]hen a statute specifically
UNITED STATES V. WELLS 31
addresses the particular issue at hand, it is that authority,
and not the All Writs Act, that is controlling.’” Id. (quoting
Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34,
43 (1985)); see also Shoop v. Twyford, 142 S. Ct. 2037,
2044 (2022) (“We have made clear that a petitioner cannot
use that Act to circumvent statutory requirements or
otherwise binding procedural rules.”). Because the MVRA
creates specific statutory requirements for garnishing
earnings, the All Writs Act cannot be used to sidestep those
requirements. 4
Thus, the district court was required to determine
whether each of Wells’s benefit payment streams
constituted “earnings” under 15 U.S.C. § 1673. See also 15
U.S.C. § 1672(a) (defining “earnings” as “compensation
paid or payable for personal services, whether denominated
as wages, salary, commission, bonus, or otherwise, and
includ[ing] periodic payments pursuant to a pension or
retirement program”). If so, the MVRA limited
garnishment of those funds to 25%. Because the district
court has not yet considered these questions, and because
some of the facts underlying the different benefit payments
are unclear, we remand for the district court to consider
these issues in the first instance.
4
Wells also argues that the restitution order violated the Fifth and Sixth
Amendments because it was based on facts not found by a jury. Our
precedent forecloses this argument. See United States v. Alvarez, 835
F.3d 1180, 1185 (9th Cir. 2016). Our precedent likewise forecloses
Wells’s argument that the restitution order violated his Seventh
Amendment right to a jury trial. See United States v. Stanfill El, 714
F.3d 1150, 1154 (9th Cir. 2013).
32 UNITED STATES V. WELLS
***
For these reasons and those set forth in our
accompanying memorandum disposition, we affirm Wells’s
convictions but vacate his restitution order and remand for
further proceedings on that issue only.
AFFIRMED in part; VACATED and REMANDED
in part.