Pastor’s Confession of Embezzlement Admissible Due to Lack of Coercion

Church Law and Tax Report Pastor’s Confession of Embezzlement Admissible Due to Lack of Coercion

Church Law and Tax Report

Pastor’s Confession of Embezzlement Admissible Due to Lack of Coercion

Key point. Confessions of embezzlement of church funds to a government investigator are admissible in a future criminal prosecution so long as they are voluntary, and not made during a custodial interrogation unless a Miranda warning is provided in advance.

A federal court in California concluded that a pastor’s confession to two IRS agents that he stole over $1 million from his church, and did not report the stolen funds as taxable income on his tax return, was voluntary and not coerced, and was not made during a custodial interrogation. Therefore, the confession was admissible in a criminal prosecution of the defendant, even though he had not been given a Miranda warning. At approximately 1:45 p.m. on the afternoon of October 17, 2012, two special agents of the IRS Criminal Investigations Unit approached a priest (the “defendant”) in the parking lot of a Catholic church. As the agents approached the priest, they identified themselves, displayed their badges, and asked whether they could ask him questions regarding his tax returns.

The defendant agreed to speak with the agents, but suggested that they do so instead at a nearby church where he was the priest. The agents agreed, and the three made their way to the other church. Inside the church, the defendant directed the agents to a room off to the right side of the church vestibule, and suggested they have their conversation there.

The agents first asked the defendant about his background, including questions about his education, employment with the church, sources of income, financial assets, and bank account and related assets. The defendant explained that he earned approximately $32,000 a year from the church, not including a housing allowance of $1,000 a month, and gifts from parishioners totaling about $10,000 a year. When asked about his other financial holdings, the defendant explained that he held assets worth about $2 million in bank accounts, certificates of deposit, a vehicle, and a home whose mortgage was fully paid.

The agents then questioned the defendant about the presence of large cash deposits in his bank account, totaling approximately $1.2 million. On this subject, the agents claimed that the defendant could not give consistent answers to their questions. For example, at first he explained that the cash deposits were gifts from parishioners. Later he explained that the $1.2 million cash deposits were money that his siblings would give him to hold for his parents.

When the agents remarked that the defendant’s answers were inconsistent, he asked the agents what was “the worst case scenario if he accepted responsibility.” One agent told him that he could appear before a judge, and may be sentenced to a jail term. The defendant then asked “what the legal exposure would be, or what type of crimes the agents would be investigating if he accepted responsibility.” One of the agents answered that if the IRS could prove that he stole money, the charges against him would include mail fraud, wire fraud, money laundering, tax evasion, and structuring cash deposits.

Two hours into the interview one of the agents informed the defendant: “I advise you that anything which you say and any documents which you submit may be used against you in a criminal proceeding which may be undertaken. I advise you further that you may, if you wish, seek the assistance of an attorney before responding.”

When one of the agents mentioned that there may be a public trial, the defendant confessed that he stole money from the church, and that he failed to report the stolen money from the church on his tax returns.

In all, from the agents’ first meeting with the defendant in the parking lot of the first church until the end of the interview, their encounter lasted about four and a half hours. At no point in the interview did the defendant indicate that he wished to end the interview, or seek an attorney. The agents later claimed that the defendant was free to terminate the encounter and leave at any time during the interview. They did not handcuff the defendant nor did they arrest him during or at the end of the interview.

On December 1, 2015, a grand jury in the Northern District of California returned an indictment charging the defendant with 14 counts of bank fraud and 4 counts of tax evasion. The defendant asked the trial court to suppress statements he made to the two agents during his interview. He claimed that his confession was involuntary because the agents had deceived him into making it, and had used coercive tactics to elicit the statements. The prosecution insisted that the defendant’s statements were freely and voluntarily given, and that the agents did not need to “Mirandize” the defendant during the first approximately two-hour portion of the interview because he was not in custody.

The court concluded that the defendant’s statements were voluntary:

When the agents first approached the defendant, they introduced themselves and inquired whether they could ask him questions about his tax returns. The defendant agreed, and brought the agents to his church to speak. In securing his cooperation, the agents did not induce him to accede to their request by threat or any promise. Moreover, during the interview, the agents remained cordial and conversational throughout. They did not brandish handcuffs, display their service weapons, or otherwise compel defendant’s presence to answer questions. When the defendant suggested that they take breaks during the interview, the agents agreed … . At no time in the course of the interview did the defendant … convey a desire to terminate the interview. Neither is there evidence that defendant suffered from a particularly vulnerable mental state.

The defendant also argued that he was coerced into making his statements because they were extracted over the course of a four-and-a-half-hour interview and occurred in an oppressive setting—a small windowless room used by clergy at the church to hold confessions. The court conceded that lengthy interrogations “may weigh in favor of finding a confession involuntary,” but it concluded that the evidence demonstrated that the interview was not coercive. It noted that “breaks were taken as requested … that the interrogation did not take place during regular meal times … and that the defendant was free to leave at any time. Defendant has cited to no other facts to buttress his argument that the length of time presented in this case rendered his confession involuntary. The absence of any such references may be because there are no other facts to suggest circumstances rising to the level of duress.”

In rejecting the defendant’s claim that the interview had been coercive, the court observed:

The room in which the interview took place was one that he himself chose. The court is hard-pressed to find improper psychological coercion where, given the freedom to select where to speak with the agents, the defendant was at liberty to choose the setting. In addition, there are no facts to suggest that the agents took advantage of his vulnerability and concern for the church to extract his confession. It may have been the case that the defendant’s piety motivated him in some degree to confess. However even then, as the Supreme Court has explained, divine inspiration does not itself render a confession involuntary … . The evidence set forth here show that the agents made no threats or promises to secure the defendant’s cooperation. Their tone was at all times conversational and respectful. When the defendant asked what his “legal exposure” could be, the agents answered truthfully.

Finally, the court addressed the defendant’s argument that his confession occurred before he was “Mirandized” by the agents. The court noted that the Fifth Amendment privilege against self-incrimination requires that a person be advised of certain rights if they are “in custody” and “subjected to interrogation.” Miranda v. Arizona, 384 U.S. 436 (1966). The government’s failure to provide such advisements “renders statements made by a person during a custodial interrogation inadmissible.”

The court concluded that when the defendant made his confession he was not in custody and therefore the fact that he confessed before being Mirandized was irrelevant. The court noted that whether a person is “in custody” requires the court to determine “whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest … . If in considering the totality of the circumstances a reasonable person would not feel free to leave the interrogation, then the interrogation is considered custodial” and any statements made prior to being Mirandized are not admissible in evidence. The court concluded that

the many facts presented in this case clearly tip the scale in favor of a finding of non-custody. The agents asked, not commanded, defendant to speak with them about his tax returns. The defendant dictated the terms under which the interview would take place by directing the agents to his own church, in a room of his choice. The agents remained at all times cordial and respectful. They presented to the defendant copies of his tax forms, but did not engage in strong-arm tactics that accused him of guilt. When he requested breaks, the agents complied with each one. He never requested food or drink, or indicated he wished to terminate the interview or seek an attorney. At the end of the interview, the agents shook his hand, thanked him for his time, and left. Examined in its totality, the facts here do not indicate that the defendant was in custody.

What This Means For Churches:

This case illustrates that incriminating statements made by clergy, or anyone else, to IRS agents may be admissible in a criminal prosecution so long as they are voluntary, and made outside of the context of a custodial interrogation (or during a custodial interrogation so long as made after a Miranda warning is read). 2016 WL 2593893 (N.D. Cal. 2016).

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