              Case: 13-15476      Date Filed: 04/29/2016     Page: 1 of 27


                                                                               [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 13-15476
                             ________________________

                    D.C. Docket No. 2:12-cr-00048-MHT-TFM-1



UNITED STATES OF AMERICA,

                                                       Plaintiff - Appellee,

versus

MICHAEL SMITH,

                                                Defendant - Appellant.
                             ________________________

                     Appeal from the United States District Court
                         for the Middle District of Alabama
                           ________________________

                                    (April 29, 2016)

Before JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO,∗ District
Judge.

JORDAN, Circuit Judge:


         ∗
        Honorable Eduardo Robreño, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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      Under Garrity v. New Jersey, 385 U.S. 493 (1967), “a public employee may

not be coerced into surrendering his Fifth Amendment privilege by threat of being

fired or subjected to other sanctions.” United States v. Vangates, 287 F.3d 1315,

1320 (11th Cir. 2002). So, if a state threatens an employee with termination unless

he provides a statement in the course of an internal investigation, it may not use

that statement against the employee in any criminal proceeding or prosecution. See

id. at 1320–21.

      The main question we address today, one of first impression, is whether a

state employee can, after he has been fired, waive his Garrity rights and allow his

prior compelled and protected statements to be used by the federal government in a

criminal investigation. Our answer is that Garrity rights may be waived in such

circumstances, as long as the employee’s waiver is voluntary, knowing, and

intelligent. And because we conclude that Michael Smith voluntarily, knowingly,

and intelligently waived his Garrity rights when he spoke to agents of the Federal

Bureau of Investigation following his termination by the Alabama Department of

Corrections, we hold that the government did not violate the Fifth Amendment

when it used his prior statements in a federal criminal investigation concerning the

beating and death of an inmate. We therefore affirm Mr. Smith’s convictions for

violating civil rights, making false statements, obstructing justice, and conspiring

to obstruct justice. See 18 U.S.C. §§ 242, 1001, 1512(b)(3), 1512(k), & 1519.



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                                         I

      We begin with the events leading to the 2010 death of Rocrast Mack, an

inmate at the Ventress Correctional Facility. We set out the facts in the light most

favorable to the government, see, e.g., United States v. Browne, 505 F.3d 1229,

1253 (11th Cir. 2007), and then chronicle what transpired afterwards.

                                         A

      Mr. Smith worked as a lieutenant at Ventress, a state prison in Alabama.

Though built for 650 inmates, Ventress housed over 1600 prisoners at the time of

trial. The federal charges against Mr. Smith were based on his involvement in the

beating and death of Mr. Mack, and his subsequent attempts to cover up his

conduct.

      On August 4, 2010, at around 7:30 p.m., Mr. Mack got into a physical

altercation with Officer Melissa Brown after she found him masturbating in his

bunk at Ventress’ D Dorm. During the fight, Officer Brown and Mr. Mack hit

each other with their fists. Officer Brown also struck Mr. Mack with her baton

several times, and at one point, Mr. Mack took the baton away from her. Officer

John Nolin tried to intervene, but by that point Mr. Mack had left his cell and gone

out to the lobby of D Dorm. Nearby inmates were watching the scuffle.

      Officer Brown called for help on her radio. Mr. Smith, who was the shift

commander at the time, mistakenly thought that the incident was taking place



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elsewhere, and did not immediately go to D Dorm.            Several other officers,

however, responded to D Dorm. Those officers surrounded Mr. Mack and began

kicking and punching him. As the officers were trying to handcuff him, Mr. Mack

somehow escaped. Officer Nolin thought he heard Mr. Smith say over the radio

“y’all better be beating that motherfucker when I get there,” and “we’re going to

kill that motherfucker.”

      When Mr. Smith finally reached Officer Brown, she had blood on her mouth

and uniform, some of her fingernails were broken or missing, and her hair was in

disarray. Mr. Smith told her, “don’t worry about it, we’re going to kill that

motherfucker.”

      Once he got to E Dorm, Mr. Mack raised his arms over his head, dropped to

his knees, and surrendered. As he did so, an officer tackled him and punched him

in the head. After Mr. Mack was handcuffed, a few of the officers escorted him to

Mr. Smith’s office in F Dorm.

      While waiting for Mr. Smith to arrive, some of the officers hit Mr. Mack—

who was still handcuffed—numerous times in the chest and stomach. Before Mr.

Smith returned to his office, the other officers removed Mr. Mack’s handcuffs.

      Upon his arrival at F Dorm, Mr. Smith grabbed a fiberglass baton from the

shift office and went inside his own office. Mr. Mack was arguing with the

officers who were there, but was not being physically aggressive. Mr. Smith beat



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Mr. Mack with the baton and ultimately broke the weapon with a blow to his head.

When an officer tried to pull Mr. Smith away from Mr. Mack, who had fallen to

the floor, Mr. Smith said: “[D]o you see my officer down there? She got blood on

her uniform, and this motherfucker gonna die.”                     Mr. Smith then repeatedly

stomped on Mr. Mack’s body, neck, and head. He also pepper-sprayed Mr. Mack

in the face at close range. Mr. Mack did not attempt to fight back during Mr.

Smith’s attack.1

       After the beating in Mr. Smith’s office, several officers handcuffed Mr.

Mack and, together with a nurse, wheeled him to the Health Care Unit because he

was unable to walk. They placed him on a bed so that he could be treated for his

injuries. Twice Mr. Mack fell from the bed and onto the tile floor.

       Mr. Smith followed the group into the HCU and ordered the nurses to leave.

After the nurses were gone, Mr. Smith, with two other officers present, pulled Mr.

Mack—who was still handcuffed—off the bed and, again, stomped on his head

several times until he passed out. At one point, when one of the officers tried to

pull him away from Mr. Mack, Mr. Smith said: “[T]rust me, I got this. . . . I’ll take

some days for my officers.”



       1
          Following Mr. Smith’s return, other officers also hit Mr. Mack with a baton and with
their fists. Three of those officers pled guilty to federal charges of deprivation of civil rights and
conspiracy to obstruct justice. One of those officers testified for the government at Mr. Smith’s
trial.



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       Once Mr. Smith left the HCU, and the ruckus had ended, the nurses came

back in and found Mr. Mack lying unconscious on the floor. He was unresponsive

and hemorrhaging from both sides of his skull. He also had severe brain swelling,

multiple facial fractures, massive bruising on his face and body, and a ruptured

spleen.

       Emergency personnel transported Mr. Mack to a hospital before midnight on

August 4, but he died around 10:00 a.m. the next day. The neurosurgeon who was

on call at the hospital opined that Mr. Mack likely died from a culmination of all

the trauma he suffered the previous evening. The medical examiner testified that

Mr. Mack died from multiple blunt force trauma and traumatic brain injury.

                                         B

       Within hours of his attack on Mr. Mack, Mr. Smith began covering up his

conduct. He met with some of the other officers who were involved in the beatings

and told them to “get [their] stories straight” and submit statements. He instructed

the officers to “document everything” and to indicate in their reports that Mr.

Mack was not handcuffed and that he fought continuously from D Dorm to the

HCU.

       As required by the regulations of the Alabama Department of Corrections,

Mr. Smith prepared a duty report and part of an incident report, but lied in those

reports about the details of the beatings. He falsely claimed, for example, that he



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had to use pepper spray on Mr. Mack and hit him on the thigh and arms with his

baton in order to stop him from fighting and allow the other officers to handcuff

him. He also omitted all of the details regarding his beating (and that of others) of

Mr. Mack in the HCU. To account for the head injuries Mr. Mack sustained, Mr.

Smith stated that he fell off the bed several times while in the HCU.

      Early in the morning of August 5, 2010, the Investigative & Intelligence

Division of the ADOC (the internal affairs arm of the agency) began an

administrative investigation into what had happened to Mr. Mack. Scottie Wells,

an I&I investigator, interviewed Mr. Smith in the course of that investigation. At

that time Mr. Mack had not passed away. During the interview, Mr. Smith told

Mr. Wells the same false story that was in his duty and incident reports.

      On August 20, following Mr. Mack’s death, Ronald Cooper—another I&I

investigator—spoke to Mr. Smith after obtaining copies of his duty and incident

reports. Again Mr. Smith stuck to his untruthful version of events.

      Mr. Wells did not advise Mr. Smith of his rights under Miranda v. Arizona,

384 U.S. 436 (1966). Nor did he tell Mr. Smith about his Garrity rights. Mr.

Cooper generally discussed Miranda with Mr. Smith, and told him that if he

invoked his Miranda rights, then he (Mr. Cooper) “would charge him with [his]

Garrity rights.” When Mr. Smith did not understand what that meant, Mr. Cooper

told him that “Garrity rights are what [was] required to answer [his] questions on



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an administrative level,” and that what he (Mr. Smith) said could not be used

against him in criminal court. After Mr. Smith waived his Miranda rights, Mr.

Cooper told him that he was duty-bound to tell him everything, and Mr. Smith said

he understood.

      Several days after Mr. Mack’s death, the Alabama Bureau of Investigation (a

division of the Alabama Department of Public Safety) launched its own criminal

investigation. Investigator Timothy Rodgers of the ABI spoke with a sergeant at

Ventress to schedule interviews of correctional officers and other personnel at the

institution. Mr. Rodgers did not specify who he wanted to speak to, and left it up

to the sergeant to determine which persons had been witnesses to the incidents with

Mr. Mack. Warden J.C. Giles told those who were going to be interviewed by the

ABI to report to the Eufala office of the Alabama Department of Public Safety.

      Over the course of several weeks, Mr. Rodgers spoke to 13 Ventress

employees. Most (if not all) of those persons told Mr. Rodgers that they had been

interviewed by I&I, and some (but not Mr. Smith) admitted to Mr. Rodgers that

they had not been truthful with I&I. Mr. Rodgers did not review any of the

statements given to I&I by Ventress personnel.

      On August 9, 2010, Mr. Rodgers met with Mr. Smith. Mr. Rodgers told Mr.

Smith he was conducting a criminal investigation concerning the death of Mr.

Mack and advised Mr. Smith of his Miranda rights. Mr. Smith waived those rights



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and agreed to speak to Mr. Rodgers. Mr. Smith repeated the same false account he

had previously given to I&I (an account Mr. Rodgers was not aware of) and denied

that he stomped on Mr. Mack. At no time during the interview did Mr. Rodgers

ask Mr. Smith about what he had said to I&I. 2

       On September 20, 2010, Warden Giles served Mr. Smith with a notice of

administrative action, charging him with violating various ADOC regulations. The

notice advised Mr. Smith of a pre-dismissal conference at which he could present

arguments as to why he should not be dismissed. During the conference, which

was held on September 29, Mr. Smith generally denied any wrongdoing. The

ADOC terminated Mr. Smith on October 1, 2010, despite his insistence that his use

of force on Mr. Mack was justified.

                                             C

       The FBI initiated a separate criminal investigation into Mr. Mack’s beating

and death in late August of 2010. Once I&I learned of this investigation, it ended

its own inquiry and shared its files with the FBI. A few months later, the ABI also

suspended its investigation and likewise forwarded its files to the FBI.               The

incident report that Mr. Smith partially prepared on the night of Mr. Mack’s death




       2
         The I&I and ABI interviews of Mr. Smith were taped and later transcribed. The state
investigators also prepared reports of their interviews of Mr. Smith.




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was included in the I&I files received by the FBI. Mr. Smith’s interviews with the

I&I and ABI investigators were also in the files received by the FBI.

      The federal investigation lasted more than a year. On October 17, 2011, the

FBI scheduled a meeting with Mr. Smith—who was then employed by the U.S.

Postal Service—after learning that the State of Alabama intended to file criminal

charges against him. The FBI hoped that the news of a possible state indictment

might give Mr. Smith some incentive to cooperate with its investigation or even

confess to his involvement in the beating and death of Mr. Mack.

      When Mr. Smith arrived at the FBI office, Special Agents Susan Hanson and

Kelvin King advised him of the purpose of the interview. They told him that he

was not under arrest, that the interview was voluntary, that he was free to leave,

and that he could refuse to answer any of their questions. Because Mr. Smith was

not in custody, they did not advise him of his Miranda rights. Agent Hanson did,

however, tell Mr. Smith that if he chose to answer questions it “was imperative”

that he tell the truth and that, if he provided false statements, he could be

prosecuted for violating 18 U.S.C. § 1001.

      Mr. Smith chose to continue speaking with the FBI agents, proclaiming that

he was eager to tell his side of the story. He said that other officers had lied about

the events of August 4, 2010, and he wanted to set the record straight.




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      During the interview, Mr. Smith mentioned that he had previously given

statements to I&I. The FBI agents told him that they did not have access to and

had not reviewed those statements because they likely had been compelled. Mr.

Smith then began giving his account of what happened on August 4.

      In the middle of the interview, but after Mr. Smith had begun to relate his

version of events, the FBI agents advised him of his Garrity rights. Mr. Smith said

that he was familiar with and understood those rights. The agents then presented

him with a consent form that granted the FBI permission to use any and all prior

statements that he might have given under compulsion. One of the agents read the

form to Mr. Smith, who said he understood its contents. The consent form, in full,

read as follows:

            I, Michael Smith, fully understand that some or all of my prior
      statements regarding allegations of excessive use of force against
      Rocrast Mack on August 4, 2010, in the Ventress Correctional Facility
      could be considered as having been given under administrative
      compulsion and therefore could not be used against me in any
      criminal investigation or proceeding.

             Nevertheless, I believe that all pertinent information should be
      provided to United States law enforcement officials in their
      investigation concerning these allegations of excessive force. I
      therefore knowingly, intelligently and voluntarily waive my
      constitutional and statutory right not to have those statements used
      against me, and I voluntarily give my consent that all of my prior
      statements be furnished to special agents of the Federal Bureau of
      Investigation, the Department of Justice, and the United States
      Attorney’s Office, knowing that these prior statements may be used
      against me in any criminal investigation and proceeding regardless of
      whether I take the witness stand in any subsequent trial.

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Mr. Smith signed and dated the consent form, saying he had no problem with the

FBI agents reviewing his prior statements because they were consistent with what

he was relating to them during the interview. With that, Mr. Smith continued

giving his statement to the agents. That statement was essentially the same as the

one Mr. Smith had given to the ABI. When he had finished, Agent Hanson told

Mr. Smith that his version was not consistent with what other witnesses had said.

                                          D

      On March 8, 2012, a federal grand jury indicted Mr. Smith on charges

related to the beating and death of Mr. Mack. The charges were two counts of

deprivation of civil rights under color of law resulting in bodily injury and death, in

violation of 18 U.S.C. §§ 2 & 242 (Counts 1 and 3); one count of obstruction of

justice for persuading others to engage in misleading conduct, in violation of 18

U.S.C. § 1512(b)(3) (Count 5); one count of conspiracy to obstruct justice, in

violation of 18 U.S.C. § 1512(k) (Count 6); one count of obstruction of justice for

falsifying documents, in violation of 18 U.S.C. § 1519 (Count 7); two counts of

obstruction of justice for misleading conduct, in violation of 18 U.S.C. §

1512(b)(3) (Counts 11 and 12); and one count of making false statements to the

FBI, in violation of 18 U.S.C. § 1001 (Count 15).

      Prior to trial, Mr. Smith filed a motion to suppress, arguing that the

statements he gave to the state agencies (I&I and the ABI) were compelled, and



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had been used in the federal investigation in violation of Garrity. He also filed a

motion for a hearing under Kastigar v. United States, 406 U.S. 441 (1972),

asserting that the government was required to prove that all of the evidence it

intended to present at trial was derived from independent sources and was not

tainted by the illegal use of his compelled statements.

      After holding an evidentiary hearing—at which Mr. Smith did not testify—a

magistrate judge issued two reports recommending that the district court deny Mr.

Smith’s motions. Among other things, the magistrate judge found that some of

Mr. Smith’s statements (the duty and incident reports, the statements to the ABI,

and the statements at the pre-termination conference) were not protected by

Garrity because they were not compelled; that Mr. Smith was not entitled to a

Kastigar hearing because the I&I and ABI investigations were free of any Garrity

taint; that the federal prosecutors and FBI agents did not have access to any

compelled/protected statements before Mr. Smith signed the consent form waiving

his Garrity rights; and that Mr. Smith voluntarily, knowingly, and intelligently

waived his Garrity rights as to his prior compelled statements during the FBI

interview.

      Mr. Smith raised several objections to the magistrate judge’s reports. He

argued, in part, that his waiver was insufficient to relinquish his Garrity rights

because the consent form he signed did not reference Garrity by name or



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specifically identify the statements that the waiver sought to cover.     He also

asserted that the waiver was involuntary because he did not understand the nature

of the rights he was waiving and because, prior to his execution of the consent

form, I&I and the ABI had already shared his compelled statements with the FBI.

      The district court overruled Mr. Smith’s objections (as well as some

objections lodged by the government), adopted the magistrate judge’s reports,

denied Mr. Smith’s motion to suppress, and rejected Mr. Smith’s request for a

Kastigar hearing. The district court assumed that the waiver of Garrity rights was

limited to the statements Mr. Smith made to I&I and the ABI (and the derivatives

of such statements). But it ruled that the duty and incident reports, like Mr.

Smith’s statements at the pre-termination conference, were not compelled under

threat of job loss and therefore were not protected by Garrity.

                                         E

      Following a six-day trial, the jury convicted Mr. Smith of all the charges

against him. The presentence investigation report, prepared by a probation officer,

recommended a base offense level of 43 under the advisory Sentencing Guidelines.

The probation officer applied U.S.S.G. § 2A1.1, the guideline for first-degree

murder, finding that Mr. Smith willfully, deliberately, and maliciously murdered

Mr. Mack.     The probation officer also applied several guideline sentencing

enhancements: committing an offense under color of law; targeting a vulnerable



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and physically restrained victim; organizing a criminal activity with five or more

participants; and obstructing justice. As a result of the enhancements, Mr. Smith’s

adjusted offense level increased to 59.       Because 43 was the highest possible

offense level under the Sentencing Guidelines, Mr. Smith’s offense level was

ultimately set at 43. With no criminal history points, Mr. Smith had an advisory

guideline range of life imprisonment.

      Mr. Smith objected to the probation officer’s guideline calculations. He

argued that the guideline for voluntary manslaughter, which would have resulted in

a base offense level of only 29, was appropriate. See U.S.S.G. § 2A1.3. He

claimed that he did not have the intent necessary to allow application of the first-

degree murder guideline because he acted under an impaired capacity and

substantial distress. Mr. Smith also challenged the application of the victim-related

guideline enhancements.

      For the most part, the district court rejected Mr. Smith’s guideline

arguments. It found that that the appropriate underlying offense was second-

degree murder (not first-degree murder) and calculated a base level offense of 38.

See U.S.S.G. § 2A1.2. As the district court saw things, the actions of Mr. Smith in

the HCU were not consistent with voluntary manslaughter but rather demonstrated

that he intended to kill Mr. Mack and had a depraved heart. The district court

further concluded that the applicable guideline enhancements raised Mr. Smith’s



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base offense level from a 38 to a 52. Again, because Mr. Smith’s total offense

level exceeded the maximum offense level in the Sentencing Guidelines, the

district court set the total offense level at 43.

       The district court denied Mr. Smith’s request for a downward departure, but

did vary downward from the advisory guideline range of life imprisonment.

Instead of imposing a sentence of life as recommended by the Sentencing

Guidelines, the district court sentenced Mr. Smith to 30 years of imprisonment on

Counts 1 and 3 and 20 years on the remaining counts, with all of those terms to run

concurrently.    The district court also imposed three-year terms of supervised

release on each count, with all of those terms to run concurrently as well.

       Mr. Smith now appeals, raising a number of challenges to his convictions

and sentence. We address only the issues related to Mr. Smith’s Garrity claim, and

affirm on the other issues without further discussion.

                                            II

       In Garrity, 385 U.S. at 499–500, the Supreme Court held that Fifth

Amendment protections apply to public employees who, under the threat of job

loss, are required to make incriminating statements. Such compelled statements by

public employees, ruled the Court, cannot be used in any criminal proceeding or

prosecution. See id. See also Vangates, 287 F.3d at 1320–21. Mr. Smith requests

that we vacate his convictions because the government violated his Garrity rights.



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He contends that the various statements he made—the statements contained in the

duty and incident reports, the statements he provided to I&I, the statements he gave

to the ABI, the statements he offered at the pre-termination conference—were all

given under compulsion and subsequently (and improperly) shared with the FBI

during its criminal investigation.

      “We review the denial of a motion to suppress as a mixed question of law

and fact; ‘rulings of law [are] reviewed de novo and findings of fact [are] reviewed

for clear error, in the light most favorable to [the government,] the prevailing party

in district court.’” United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009)

(modifications in original and citations omitted). A finding is not clearly erroneous

unless we are left with a “definite and firm conviction that a mistake has been

committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985).

Stated differently, “[w]here there are two permissible views of the evidence, the

fact-finder’s choice between them cannot be clearly erroneous.” Id. at 574.

                                          A

      We first address the statements in the duty and incident reports prepared by

Mr. Smith. For a number of reasons, we conclude that those reports were not

compelled within the meaning of Garrity.

      It is true, as Mr. Smith says, that the administrative regulations of the ADOC

require employees to complete a report of all unusual incidents that occur during a



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shift or tour of duty, and to cooperate with investigations by providing information

and or verbal/written statements. It is also true, as Mr. Smith points out, that

failure to comply with the ADOC’s regulations can lead to progressive disciplinary

sanctions. But where there is no direct threat, the mere possibility of future

discipline is not enough to trigger Garrity protection:

      In the absence of a direct threat [of termination], we determine
      whether the officer’s statements were compelled by examining h[is]
      belief and, more importantly, the objective circumstances surrounding
      it. Thus, for [an officer’s] statements to be protected under Garrity,
      the officer must have in fact believed the statements to be compelled
      on threat of loss of job and this belief must have been objectively
      reasonable.

Vangates, 287 F.3d at 1321–22 (internal quotation marks and citations omitted).

See also United States v. Waldon, 363 F.3d 1103, 1112 (11th Cir. 2004) (“Before a

police officer’s testimony will be considered ‘coerced’ within the meaning of

Garrity, he must show that he subjectively believed that he would lose his job if he

refused to answer questions and that his belief was objectively reasonable.”).

      Mr. Smith did not testify at the evidentiary hearing, and the magistrate judge

and the district court found that he failed to present any evidence that he

subjectively believed that he would be terminated if he refused to submit the

reports. See D.E. 281 at 2. Indeed, the magistrate judge and the district court

found that Mr. 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



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employment.” D.E. 187 at 7. This finding was not error, and certainly not clear

error.    Mr. Smith, therefore, has not satisfied the subjective belief prong of

Vangates.

         Even if Mr. Smith had put on evidence as to his own belief, “Garrity does

not stand for the proposition that a statement made in a standard report is coerced

whenever an officer faces both the remote possibility of criminal prosecution if he

files the report and arguably even speculative possibility of termination if he

declines to do so. Rather, the touchstone of the Garrity inquiry is whether the

defendant’s statements were coerced and therefore involuntary.” United States v.

Cook, 526 F. Supp. 2d 1, 8 (D.D.C. 2007) (holding that field and use of force

reports prepared by deputy U.S. Marshal, concerning incident between himself and

individual in the custody of the U.S. Marshals Service, were not coerced within the

meaning of Garrity, in part because the deputy was not under administrative or

criminal investigation when the reports were requested). Cf. United States v. Rios

Ruiz, 579 F.2d 670, 676 (1st Cir. 1978) (not discussing Garrity, but holding that an

arrest report prepared by a police officer could be used at his criminal trial because

it “clearly does not come within the ambit of the [F]ifth [A]mendment”). So Mr.

Smith fails on the second prong of Vangates as well. See Waldon, 363 F.3d at

1112 (holding that police officer did not have an objectively reasonable belief that

he would be fired for refusing to testify before a grand jury even though



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municipality’s regulations reflected a “general expectation that police officers

w[ould] cooperate and testify” and allowed for discipline of employees who

exercised their Fifth Amendment rights). See also Robert Myers, Code of Silence:

Police Shootings and the Right to Remain Silent, 26 Golden Gate U. L. Rev. 497,

525–26 (1996) (“Police officers have unsuccessfully attempted to exclude reports

prepared in the normal course of their duties from criminal trials. Arguing that

preparation of the reports were mandated by departmental regulations, officers

have claimed that the reports [were] ‘compelled’ for Fifth Amendment purposes.

This argument has been consistently rejected.”) (internal footnotes and citations

omitted).

                                        B

      Next we turn to Mr. Smith’s statements to the ABI. We agree with the

magistrate judge and the district court that those statements were not compelled

under Garrity.

      As an initial matter, there is no evidence that Mr. Rodgers, the ABI

investigator, told Mr. Smith that he could (or would) lose his job if he failed to

answer questions. To the contrary, Mr. Rodgers informed Mr. Smith that he was

conducting a criminal investigation into the death of Mr. Mack and advised him of

his Miranda rights. Mr. Smith waived those rights and answered the questions

posed to him by Mr. Rodgers. And although Warden Giles instructed Mr. Smith



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(and other Ventress employees) to go to the Eufala office of the Alabama

Department of Public Safety, there is no evidence that he told them they had to

answer questions put to them by ABI investigators once they got there.          Cf.

Benjamin v. City of Montgomery, 785 F.2d 959, 962 (11th Cir. 1986) (holding that

police officers, who had refused to testify on Fifth Amendment grounds at another

officer’s criminal trial, were compelled to provide testimony when city mayor

threatened them with termination unless they testified).

      Because there was no direct threat of termination (or similarly severe

employment action), Mr. Smith had to demonstrate a subjective belief that his

statements to the ABI were “compelled on threat of loss job,” and that this belief

was “objectively reasonable.” Vangates, 287 F.3d at 1322 (internal quotation

marks and citations omitted). As already noted, Mr. Smith did not testify at the

evidentiary hearing, and he failed to present any evidence that he subjectively

believed that failing to answer Mr. Rodger’s questions would lead to termination.

He therefore did not satisfy the subjective belief prong of Vangates with respect to

his statements to the ABI. See, e.g., United States v. Palmquist, 712 F.3d 640, 645

(1st Cir. 2013) (“Garrity immunity is contingent upon the degree of certainty that

an employee’s silence alone will subject the employee to severe employment

sanctions. . . . Nothing that Bond [the criminal investigator] said or presented to

Palmquist [the employee] could have led Palmquist to believe that, if he remained



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silent, he would automatically lose his job or suffer similarly severe employment

consequences solely for having remained silent.”).

                                          C

      That leaves the statements made by Mr. Smith to I&I and to ADOC officials

at his pre-termination conference.      We assume, without deciding, that these

statements were compelled within the meaning of Garrity. But we affirm the

denial of the motion to suppress because Mr. Smith waived his Garrity protections

as to those statements when he executed the consent form during the FBI

interview. Cf. Garner v. United States, 424 U.S. 648, 663–64 (1976) (rejecting

Garrity claim where taxpayer, instead of asserting an available Fifth Amendment

privilege, made incriminating disclosures on his tax return).

      A person can waive his Fifth Amendment rights if he does so voluntarily,

knowingly, and intelligently, see Colorado v. Spring, 479 U.S. 564, 573 (1987),

and Garrity protections—which derive from the Fifth Amendment—are no

exception to this general rule. See United States v. Gray, 2010 WL 1487218, at *3

(N.D. Ohio Apr. 13, 2010) (concluding that law enforcement officers waived their

Garrity rights as to prior compelled statements by executing, during their FBI

interviews, a consent form virtually identical to the one signed by Mr. Smith in this

case). A waiver is voluntary if it is the “product of a free and deliberate choice”

rather than intimidation, coercion, or deception, and it is knowing and intelligent if



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it is done with “full awareness . . . of the right being abandoned and the

consequences of the decision to abandon it.” Spring, 479 U.S. at 573. “Only if the

‘totality of the circumstances surrounding the investigation’ reveal[s] both an

uncoerced choice and the requisite level of comprehension may a court properly

conclude that the [Fifth Amendment] rights have been waived.” Id.

      Whether there has been a valid waiver of Fifth Amendment rights is a mixed

question of law and fact. See United States v. Barbour, 70 F.3d 580, 584–85 (11th

Cir. 1995). Here the magistrate judge and the district court concluded that Mr.

Smith’s Garrity waiver was voluntary, knowing, and intelligent. Construing the

record in the light most favorable to the government, which prevailed at the

suppression hearing, see id. at 584, and assessing the totality of the circumstances,

we agree.

      First, the Garrity waiver was voluntary. The FBI agents asked Mr. Smith to

come meet with them and he agreed to do so. At its inception, therefore, the

meeting was consensual. After Mr. Smith arrived for the interview, the agents told

him that they were investigating the death of Mr. Mack, that he was not under

arrest, that he was free to leave, and that he could refuse to answer any questions.

Mr. Smith told the agents that he wanted to tell his side of the story and set the

record straight. Mr. Smith was never in custody, spoke to the agents freely, and

there was no evidence of coercion, threats, or deception on the part of the agents.



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      Second, the waiver was knowing and intelligent. When Mr. Smith said that

he had previously provided statements to I&I, the agents told him that they did not

have access to those statements because they likely had been compelled. The

agents advised Mr. Smith of his Garrity rights, and he said he understood those

rights. In the middle of the interview, the agents provided Mr. Smith with a

consent form that he signed. The first paragraph of the form informed Mr. Smith

that his prior statements during the investigation into the alleged use of excessive

force against Mr. Mack might have been compelled, and that, as a result, they

could not be used against him in any criminal investigation or proceeding. The

second paragraph of the form stated that Mr. Smith, understanding this protection,

nevertheless wanted the federal government to have all pertinent information for its

investigation.

      By signing the consent form, Mr. Smith voluntarily, knowingly, and

intelligently agreed to make all of his prior statements available to FBI agents and

federal prosecutors, even with the understanding that those statements could be

used against him if he chose not to take the stand at a subsequent trial. Although

the consent form did not mention Garrity by name, that omission was not fatal, for

the magistrate judge and the district court found that the FBI agents had explained

to Mr. Smith the rights he had under Garrity, and Mr. Smith said that he

understood those rights. Simply put, Mr. Smith knew the rights he was giving up,



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and he realized the consequences of waiving those rights. Cf. Chavez v. Martinez,

538 U.S. 760, 768 n.2 (2003) (dicta in plurality opinion) (“Once an immunity

waiver is signed, the signatory is unable to assert a Fifth Amendment objection to

the subsequent use of his statements in a criminal case, even if his statements were

in fact compelled. A waiver of immunity is therefore a prospective waiver of the

core self-incrimination right in any subsequent criminal proceeding.”).

      Third, and critically, there was no violation of Garrity by the federal

government prior to Mr. Smith signing the consent form. The magistrate judge and

the district court found that “none of the prosecutors or investigators assigned to

the prosecution had access to any statements [Mr.] Smith move[d] to suppress until

after [he] signed the waiver form[.]” D.E. 187 at 5. As we explain, this finding—

at least with respect to Mr. Smith’s statements to I&I and at the pre-termination

conference—finds substantial support in the record, and is not clearly erroneous.

      FBI Agents Hanson and King testified that, although the I&I and ABI files

had been received by the FBI months before Mr. Smith’s interview, they had not

reviewed any Garrity-protected materials (i.e., Mr. Smith’s prior statements to

I&I) prior to that interview. Agent Hanson acknowledged that she had reviewed

Mr. Smith’s ABI interview and the incident report, but explained that she had not

seen or been told about any of Mr. Smith’s prior statements to I&I because she

considered those statements compelled under Garrity. Agent King, for his part,



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testified that he was not even involved in the investigation into Mr. Mack’s death

until Mr. Smith’s FBI interview, and had not seen any of Mr. Smith’s prior

statements.

      The testimony of Agents King and Hanson concerning the lack of Garrity

taint was corroborated to some degree by the state investigators. For example, Mr.

Cooper testified that Agent Hanson did not want to violate Mr. Smith’s Garrity

rights and told him that she did not want to discuss or gain access to any of Mr.

Smith’s statements to I&I. Mr. Cooper therefore did not talk to Agent Hanson

about Mr. Smith’s I&I interview.

      The magistrate judge and the district court credited the testimony of the FBI

agents and the state investigators. Insofar as Mr. Smith’s statements to I&I and to

ADOC officials at the pre-termination conference are concerned, we see no basis

for overturning those credibility determinations, and we agree that the FBI agents

did not review or access those statements prior to their interview of Mr. Smith. See

generally Amadeo v. Zant, 486 U.S. 214, 227 (1988); United States v. Ramirez-

Chilel, 289 F.3d 744, 749 (11th Cir. 2002). We acknowledge, as indicated above,

that Agent Hanson testified that she had reviewed Mr. Smith’s statements to the




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ABI prior to the FBI interview, but those statements were not, as we have

explained, compelled within the meaning of Garrity.3

                                               III

       Mr. Smith has not shown that his rights under Garrity were violated, and his

other claims of error are not persuasive.               We therefore affirm Mr. Smith’s

convictions and sentence.

       AFFIRMED.




       3
          In affirming the factual finding that any Garrity-protected statements made by Mr.
Smith were not reviewed by the FBI agents prior to their meeting with Mr. Smith, we do not rely
on the magistrate judge’s subsidiary finding that, prior to the FBI interview, the federal
prosecutors used a “wall” to shield the agents from any Garrity taint. D.E. 187 at 5. As the
district court correctly noted in its order, the government did not present any evidence “as to the
existence of a Garrity-statement filter within the [U.S. Attorney’s Office] at the evidentiary
hearing.” D.E. 300 at 3.



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