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United States v. Patterson

United States District Court, E.D. Louisiana

June 11, 2019


         SECTION: “J” (3)



         Before the Court is a sealed Motion to Suppress (Rec. Doc. 40), filed by Defendant, Brittany Patterson. The Government filed an opposition (Rec. Doc. 63), to which the Defendant replied (Rec. Doc. 55). The Court held oral argument on the motion on May 20, 2019. Considering the Motion, the memoranda, the record, and the law, the Court finds that the Motion should be GRANTED IN PART and DENIED IN PART.


         Patterson argues that statements she made on three different days to IRS Special Agents should be suppressed because these statements were obtained in violation of her Fifth Amendment right against compelled self-incrimination. Both the Defendant and the Government depend on memoranda written by the interviewing agents for an accounting of the events. Accordingly, the facts are agreed upon, just not their import, and the Court has concluded an evidentiary hearing is not necessary to resolve the suppression issue.

         I. May 28, 2015

         Although it is unclear exactly when Patterson became a target of an IRS criminal investigation, the Government admits she was a target before she was ever interviewed by Special Agents.[1] In late February of 2015, the IRS launched a sting against Patterson while she was running her own tax preparation shop out of an apartment complex. According to an IRS memorandum recording the sting, an “undercover shopper” went to Patterson's place of business, and Patterson instructed the undercover shopper to falsely claim someone else's child as a dependent niece so the undercover shopper could receive a larger refund.[2]

         With this evidence in hand, on May 28, 2015, Special Agents Mark Nuss and Jason Boyles of IRS Criminal Investigation attempted to interview Patterson at her last known address.[3] After learning she had not lived there for eighteen months, Agent Nuss called Patterson and left her a voicemail asking her to call him back. At 10:13 a.m., Agent Nuss followed up with a text message introducing himself as an agent with IRS Criminal Investigation and asking Patterson to call him back. Patterson responded two minutes later in a text message: “I spoke with my lawyer and he said not to speak with anyone without him sorry.” Agent Nuss responded, “When can we meet with you and your lawyer? And if you give me your lawyer's name I will contact him directly. And Phone number?” Patterson texted back asking if the investigation involved “Erin, . . . Cause I hardly did any returns with them this year and none of them had no criminal activity.” Responding separately to Agent Nuss's inquiry into her lawyer's contact information, she replied her lawyer was only available by appointment and she would have to talk to him first. Agent Nuss then asked where he could drop off documents for Patterson. Patterson then called Agent Nuss and admitted to working for another tax preparation business that was under investigation. During the phone call she told Agent Nuss that they could drop off documents for her at her mother's house, and she provided that address.

         The agents, wearing plain clothes, arrived at Patterson's mother's house at 11:06 a.m.[4] Once there, they learned that Patterson was not; they called her, and she arrived a couple of minutes later. After they introduced themselves and produced their credentials, Patterson invited the agents inside her mother's trailer home. Once inside, the agents issued an IRS Summons to Patterson, which ordered her to appear at the IRS's New Orleans office on June 10, 2015. They then read Patterson the IRS's standard statement of non-custodial rights:

As a special agent, one of my functions is to investigate the possibility of criminal violations of the Internal Revenue laws, and related offenses. In connection with my investigations of your tax liability (or other matter), I would like to ask you some questions. However, first I advise you that under the 5th Amendment to the Constitution of the U.S., I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate you in any way. I also advise you that anything which you say and any documents which you submit may be used against you in any criminal proceeding which may be undertaken. I advise you further that you may, if you wish, seek the assistance of any attorney before responding. Do you understand these rights?”[5]

         Patterson indicated she did understand these rights by responding, “Yes.” Patterson then turned to her mother and told her she was not afraid to speak with the agents because she had done nothing wrong. Patterson's mother sat on the sofa in the adjoining room for most of the interview.[6]

         The Memorandum of Interview states the interview was conducted from 11:09 a.m. to 5:54 p.m., and the content of this memorandum confirms that the interview was lengthy.[7] At the beginning of the interview, Patterson gave the agents some biographical information. She revealed that after her second child was born she suffered from postpartum depression and that she was diagnosed as bi-polar schizophrenia in 2009. Patterson noted, however, that she is fine with medication, and she described herself as healthy.[8]

         The interview then turned to questions about her work at three different tax preparation businesses: Pelicans Income Tax and Bookkeeping Service; Crown Tax Service, LLC; and No. Limit Tax Refund LLC, the business Patterson owned and operated herself.[9] Patterson first told the agents about her work at Pelican, which lasted for only the first two weeks of February in 2015-Patterson prepared twenty-six returns while working there.[10] Patterson described many acts of fraud by her fellow employees at Pelican, telling the agents that her co-workers had changed names and state ID numbers on returns, inflated withholdings, and that her former boss had fled to Texas with taxpayers' refund money.[11]

         Next, Patterson spoke about her employment at Crown. Again, Patterson made allegations of fraud against her employer, stating that Butler, Crown's owner, allowed people to misstate their income on returns.[12] Patterson stated she did not work as a tax preparer at Crown but instead mainly performed clerical work and referred customers to the business. The agents gave Patterson a spreadsheet entitled “2012 Returns Deposited to Crown Bank Account” and Patterson identified the returns of the people she had referred to Crown.[13] Patterson was also given photographs of Butler, Butler's wife, and Dana Alvarez, a tax preparer at Crown, to identify.

         Finally, Patterson spoke to the officers about her own business, No. Limit. Patterson stated she was the owner, sole tax preparer, and sole transmitter of returns at No. Limit.[14] Patterson admitted that she falsified numbers returns in order to help friends and family receive inflated refunds. Patterson stated, “I made up income numbers for family members.”[15] And, “I know people who are struggling and I tried to help them get money.”[16] The agents gave various documents to Patterson regarding No. Limit for her to review with them. When she was given a spreadsheet entitled “Brittany Patterson 2013 Returns” she went down the list and wrote “FD” next to the people who claimed false dependents.[17] She did the same with a corresponding spreadsheet for Pelicans.[18]

         Before the interview concluded, the agents asked Patterson for her current address. She told the agents she still lived at the address she had not lived at for eighteen months, and the officers replied they knew this to be false.[19] Patterson said she was living with someone and she refused to tell the officers the address. The interview ended.

         In her affidavit attached to her motion to suppress, [20] Patterson avers that she was dizzy, anxious, and unable to think clearly during the interview because she was off her anti-psychotic medication and had not slept the night before. As she informed the agents, Patterson has been diagnosed with bi-polar schizophrenia. She states she was prescribed and was taking the anti-psychotic Seroquel in 2015, and that when she missed doses she typically suffered the same symptoms she says she suffered during the interview. Patterson also explains she did not sleep the night before because she worked the nighttime cleaning shift at Ochsner Hospital on May 27, 2015, and she did not take her two scheduled doses of Seroquel on that day because the medication makes her tired and she needed to work late. In between her shift ending at 6:00 a.m., and the first phone call around 10:00 a.m., Patterson had to drop her sister off at home and ready her kids for school. Patterson also included a page from her medical file indicating she suffered manic episodes on April 6, 2015 and June 22, 2015.[21]

         II. June 10, 2015

          The IRS Summons required Patterson to appear on June 10, 2015, at 9:00 a.m.

         Patterson failed to appear on time, and Agent Nuss texted Patterson, “Good morning Brittany, are you coming in for your summons appearance?”[22] Patterson responded that she could not make it. Agent Nuss offered a new date and texted, I can authorize one extension on the summons but I need to remind you that the summons is a legal document. Please read the section entitled Enforcement of Summons. Failure to appear will result in an attachment and arrest. Since you've been fully cooperative, I don't want that to happen.[23]

         Patterson responded, “Ok I will go see my lawyer today and let him know everything that's going on and I agreed to speak to y'all without him and I didn't know what a summons was and that I was ordered to speak with y'all again after I told y'all everything I know from a to z[.]”[24] In another text message following immediately thereafter, Patterson wrote:

         And I can't Give u what I don't have[.] [M]y files was tooken an destroyed and my computer is destroyed that's why I took out the time to sit with u guys and let u know[.] [N]ow u telling me I can b arrested cause I cudnt make it and I took out the time to tell y'all what I know[.] I didn't know I was in trouble or under investigation so [my lawyer] will b contacting u today.[25]

         Patterson and Agent Nuss then spoke in two telephone conversations regarding the production of documents by Patterson, and a new summons date of June 16, 2015 was set.[26]

         III. June 16, 2015

         The IRS Summons ordered Patterson to appear at the F. Edward Hebert Federal Building, room 1037. Once she arrived at the Hebert Building, she walked through metal detectors and past security officers to get to room 1037. She did not bring the nameless lawyer she had referred to in her communications with Agent Nuss; instead, she came alone. At the IRS's office she met with Agent Nuss and she was introduced to Special Agent Cary Davis. The Special Agents were not in uniform, but Davis provided her badge and credentials for Patterson's inspection. Unlike when Special Agents Boyles and Nuss had interviewed her at her mother's home, this time the agents did not read Patterson the statement of non-custodial rights, despite the Internal Revenue Manual's admonition that they do so.[27] It appears that the agents did not advise Patterson of any of her rights; they did not tell her she could terminate the interview or that she could leave at her discretion. The interview took place in a conference room and began at 3:19 p.m.[28]

         According to the IRS memorandum, the agents began the interview by giving Patterson a spreadsheet entitled “2012 Returns Deposited to Crown Bank Account, ” which Patterson had previously reviewed.[29] The agents asked her to identify the customers she had referred to Butler; she did so. Then, the agents gave Patterson client folders for tax year 2012 which had been summoned from Butler; Patterson proceeded to identify the false items in returns prepared by Butler and her former co-worker, Dana Alvarez.[30] The agents then gave Patterson print-outs of transmitted returns that Patterson had prepared for her No. Limit Tax Refund business in 2014 for tax year 2013 and asked her to identify false items.[31] Patterson reviewed the print outs and identified approximately fifty-three false items in thirty-one returns she had prepared. She was asked to do the same with tax returns she had prepared for tax year 2014, both for her own company and for Pelican Income Tax, and she identified many more false items in tax returns she had prepared.[32] The interview lasted until 7:07 p.m.[33] Patterson was not arrested at the conclusion of the interview and was allowed to leave.


         According to the Fifth Amendment, no person shall be “compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. When a criminal defendant's self-incriminating statements are produced through interrogation in the custody of law enforcement, there is a presumption that the statements were compelled and should be suppressed unless a Miranda warning was issued prior to the defendant making her statements. Oregon v. Elstad, 470 U.S. 298, 306-307 (1985), Miranda v. Arizona, 384 U.S. 436, 444 (1966). In this case, the Defendant argues her Fifth Amendment and Miranda rights were violated in several custodial interrogations, and she invokes Miranda's exclusionary rule to preclude the Government from using her statements in its case in chief. There are shifting burdens in suppression hearings in deciding whether confessions should be suppressed. United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1977). The defendant must make “specific factual allegations of illegality, ” and it is her burden to show she was under custodial interrogation when she made the admission at issue. Id. If that showing is met, it is the Government's ultimate burden to prove by a preponderance of the evidence that the evidence was not illegally obtained. Id.

         Two conditions must be met simultaneously for Miranda's protections to be triggered: custody and interrogation. Minnesota v. Murphy, 465 U.S. 420, 431 (1984). There is no question that the agents subjected Patterson to interrogation. Nor is it contested that she was not read her Miranda rights.[34] Accordingly, whether the statements should be suppressed hinges on whether Patterson was in “custody” at the time she made her statements. Elstad, 470 U.S. at 306-07. “In the paradigmatic Miranda situation-a person is arrested in his home or on the street and whisked to a police station for questioning, ” see id., but a defendant may be “in custody” anywhere, even in his own home. See Orozco v. Texas, 394 U.S. 324, 325 (1969). A defendant is in “custody” when “there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” New York v. Quarles, 467 U.S. 649, 655 (1984). It is the latter test that concerns the Court today.

         If there was no formal arrest, “[t]he initial step is to ascertain whether, in light of the objective circumstances of the interrogation, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.” Howes v. Fields, 565 U.S. 499, 509 (2012) (internal quotations and citations omitted). In determining whether a reasonable person would feel free to leave or not, courts and police officers consider a number of factors: “the location of the questioning, its duration, the statements made during the interview, the presence or absence of physical restraints during questioning, and the release of the interviewee at the end of the questioning.” Howes, 565 U.S. at 509. The “subjective views harbored by either the interrogating officers or the person being questioned are irrelevant.” J.D.B. v. North Carolina, 564 U.S. 261, 271 (2011) (quotations and citation omitted). Since Miranda's custody determination is to be made using an objective standard, the Supreme Court has not typically considered whether a defendant is more susceptible to police pressure due to her subjective characteristics, such as her mental health. Id.

         at 282-98 (Alito, J., dissenting). The youth of the defendant, however, is notably “a relevant factor to be considered, so long so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer.” Id. at 277 (majority opinion).

         The freedom of movement is not accorded ‘talismanic power,' though, because Miranda is applied “only in those types of situations in which the concerns that powered the decision are implicated.” Berkemer v. McCarty, 468 U.S. 420, 437 (1984). “The freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody.” Maryland v. Shatzer, 559 U.S. 98, 112-13 (2010). Once the Court finds an interviewee would not have felt free to leave, the Court determines whether the detention “sufficiently impair[ed] the detained person's free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.” Howes, 565 U.S. at 510 (quoting Berkemer, 468 U.S. at 437).

         Patterson argues her Fifth Amendment and Miranda rights were violated both because she was subjected to a custodial interview after she invoked her right to an attorney and because she was interrogated without being read her Miranda rights. She also argues her statements were involuntary. Patterson identifies several points at which the agents allegedly violated Miranda's prophylactic rule.

         I.May 28, 2015


         The first alleged violation occurred when Patterson texted Agent Nuss that her attorney had told her not to speak with anyone without counsel and Agent Nuss texted back, inquiring after her attorney's contact information. According to Patterson, upon declining to speak with the agents without counsel present via text message, the agents were required to cease all communication with her. She cites to Edwards v. Arizona, 451 U.S. 477 (1981) for the proposition. “[H]aving expressed his desire to deal with the police only through counsel, [the defendant] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85. But clearly the Supreme Court's holding in Edwards was limited to situations in which the suspect “invoked his right to have counsel present during custodial interrogation.” Id. (emphasis added); see also Montejo v. Louisiana, 556 U.S. 778, 795 (2009) (“If the defendant is not in custody then [Miranda-Edwards] do not apply.”).[35] The Supreme Court has “never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation.'” Bobby v. Dixon, 565 U.S. 23, 28 (2011) (quoting McNeil v. Wisconsin, 501 U.S. 171, 182, n. 3 (1991)).[36] And Patterson was clearly not in the custody of the law enforcement agents when she communicated with them by phone and they did not know her location or even her current address. Accordingly, this mention of an attorney is not a reason to suppress any non-custodial admissions the Defendant made to Agent Nuss on May 28, 2015 over the phone or later, in person.


         Patterson next argues that the follow-up, in-person interview at Patterson's mother's trailer home was custodial and her statements must be suppressed because she was not read her Miranda rights. It bears repeating what the actual test for custody is in these circumstances. As formulated by the Supreme Court in Thompson v. Keohane, 516 U.S. 99 (1995), the inquiry is, given consideration of the circumstances surrounding the interrogation, whether “a reasonable person [would[ have felt he or she was not at liberty to terminate the interrogation and leave.” 516 U.S. at 112 (internal quotation marks and footnote omitted). Once the court has reconstructed the scene from the facts, the test becomes an objective determination of whether the person interrogated ...

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