UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 22-cr-129-LM-1 Opinion No.

P Jeromy Pittmann

ORDER

Defendant Jeromy Pittman is charged with four offenses related to an alleged

scheme to receive payments for writing fraudulent letters of recommendation for

Afghan nationals seeking Special Immigrant Visas. See doc. no. 24 (indictment).

Presently before the court is Pittman’s motion to suppress. Doc. no. 49. Pittman

moves to suppress his allegedly involuntary statements on November 4, 2021, and

any evidence derived from those statements, primarily on the ground that he was

fatigued when he made his statements. For the following reasons, Pittman’s motion

is denied.

BACKGROUND1

As of November 2021, Pittman was a Lieutenant Commander in the United

States Naval Reserves. He was also employed in a civilian capacity for the United

States government in an overseas post, residing in Italy. His position in the

1 All facts are taken from Pittman’s motion except where otherwise indicated.

Although Pittman requests an evidentiary hearing, for the reasons explained below, the court finds that Pittman has not shown that he is entitled to a hearing. See United States v. Cintron,

(1st Cir. 2013). Reserves, however, required him to regularly travel to the United States to attend

drill. Moreover, Pittman had previously resided in Pensacola, Florida.

Pittman’s obligations with the Reserves required him to attend drill in

Gulfport, Mississippi on November 4 and 5, 2021. He arrived at his hotel in

Gulfport at approximately 3:30 a.m. local time on November 4. He had been in

transit for approximately thirty-one hours.2 Pittman tried to sleep from 5:00 a.m. to

7:00 a.m. and then attended drill until 5:00 p.m.

When Pittman returned to his hotel at approximately 5:20 p.m. on November

4, he was approached by Naval Criminal Investigative Service Agent Rachel

McGranaghan and Special Agent Kevin Naylon with the Special Inspector General

for Afghanistan Reconstruction (“SIGAR”). The agents had previously planned to

try and speak with Pittman while he was in Italy, but later changed their minds

and decided to try and meet with him while he was in the United States to attend

drill. Naylon identified himself with SIGAR and said he had some questions for

Pittman. Pittman believed that Naylon’s questions pertained to complaints Pittman

had made about waste, fraud, and abuse while deployed to Afghanistan. He asked

Naylon if the questions could wait until the next morning or some other time

because he had been awake for the majority of the previous forty-five hours. Naylon

told Pittman that the interview would not take more than a few minutes. Pittman

agreed to speak with the agents.

2 It is unclear whether Pittman slept during any portion of this time in transit.

2 At the beginning of the interview, the agents provided Pittman with a

Garrity form and a Uniform Code of Military Justice (“UCMJ”) Article 31(b) waiver

form. See Garrity v. New Jersey,

(1967);

(b). Pittman

asked why he was being given these forms. The agents told him that the forms were

merely a formality. The agents did not read the forms to Pittman. Pittman signed

and initialed both forms.

The agents questioned Pittman from approximately 5:50 p.m. to 8:30 p.m.

about the allegations in this case. The questioning took place in a conference room

at the hotel in Gulfport where Pittman was staying. At multiple points during the

interview, Pittman said that he would prefer to pause the questioning so that he

could get some sleep, as he was extremely tired from his travel and inability to get

any meaningful sleep over the previous forty-five hours. The agents responded to

Pittman’s requests by telling him that they were almost finished and would not

take much longer.

The government has provided a video recording of a portion3 of the

interview.4 The video shows that Pittman appears tired. The agents acknowledged

that Pittman was visibly tired on a few occasions. Naylon acknowledged that

Pittman had “a pretty tough . . . schedule” due to the jet lag from his travel.

McGranaghan acknowledged “you’ve gotta be tired. Yes, I can understand that.

3 According to Pittman, the entirety of the interview was recorded but portions

were lost due to technical issues.

4 The video was conventionally filed in the clerk’s office.

3 What time is it in Italy I don’t know.” Naylon knew that Pittman was “eager to go”

but told him that “we’re not far from being done.” However, while Pittman appears

to be tired, he is not on the verge of falling asleep and he is able to answer the

agents’ questions in a lucid and coherent fashion. The video also shows that the

agents were professional and courteous in their questioning and that they did not

threaten Pittman in any manner or make promises of leniency.

DISCUSSION

The admission of a defendant’s involuntary statement violates his right to

due process. United States v. Jackson,

(1st Cir. 1990). A

statement is involuntary if the officers overpowered the defendant’s will such that

“the statement was not his free and voluntary act.” United States v. Jacques,

(1st Cir. 2014) (quoting Bryant v. Vose,

(1st Cir.

1986)); see also United States v. Hufstetler,

(1st Cir. 2015)

(statement is involuntary if it is “coerced” and therefore not “the product of a

rational intellect and free will” (quoting Lynumn v. Illinois,

(1963))). Courts consider the totality of the circumstances to determine whether a

statement is involuntary. Jacques,

. Relevant factors include “the

length and nature of the questioning, promises or threats made by investigators,

and any deprivation of the suspect’s essential needs,” as well as “the defendant’s

personal circumstances, including his age, education, intelligence, and mental

condition,” and “his prior experience with the criminal justice system.”

The

4 prosecution has the burden of proving voluntariness by a preponderance of the

evidence. Hufstetler,

.

Pittman primarily argues that his statements to Naylon and McGranaghan

in November 2021 are involuntary due to his fatigue. He points out that he had

been awake for “the majority of” forty-five hours prior to the start of questioning

due to his travel from Italy to the United States. Doc. no. 49 ¶ 46. He claims that

the agents “preyed” on his lack of sleep and specifically chose to question him in

unfamiliar surroundings at a time when they knew he would be tired from his

travel and service obligations, rather than in Italy where he lived and where they

originally planned to try and speak with him. Pittman contends that he asked to

end the interview at multiple points but the agents frustrated his requests by

continuously telling him that they would conclude shortly.

It is true that “deprivation of basic necessities, coupled with an unreasonably

prolonged . . . interrogation, can affect the voluntariness” of a defendant’s

statement. United States v. Carpentino,

, 28 (1st Cir. 2020). “Even so, a

defendant asserting that a [statement] was involuntary on this or any other basis

must show some form of coercive law enforcement conduct or overreaching.”

(citing Colorado v. Connelly,

(1986)); accord 2 Wayne R. LaFave

et al., Criminal Procedure § 6.2(c) (4th ed.) (highlighting Connelly’s requirement

that the statement must stem from “coercive” police tactics; “‘even the interrogators’

knowledge that a suspect may have mental problems does not make the suspect’s

statements involuntary’ unless there are coercive tactics beyond mere questioning”

5 (quoting Miller v. Dugger,

(11th Cir. 1988))). Indeed, cognitive

impairment caused by fatigue or other, similar circumstances “is never, by itself,

sufficient to warrant the conclusion that [a] confession was involuntary for purposes

of due process; some element of police coercion is always necessary.” United States

v. Luck,

(6th Cir. 2017) (quoting United States v. Newman,

(6th Cir. 1989)). Thus, without more, the agents’ choice to question

Pittman despite their knowledge of his fatigue, as well as their requests to continue

the interview despite Pittman’s requests to stop, do not render his statements

involuntary. See Carpentino, 948 F.3d at 28 (statement voluntary where defendant

“fail[ed] to link the allegedly weakened physical condition he suffered from his lack

of food and sleep to any police misconduct”); Carter v. State,

(Wyo. 2010) (“While it is true that Carter requested to be left alone so that he could

sleep, the mere fact that the detectives continued to ask Carter for information is

not dispositive of whether Carter’s statements were voluntary.”).

The totality of the evidence shows that Pittman’s statements were not the

product of a will overborne by coercive police tactics. The questioning lasted

approximately three hours—which is not the sort of marathon interrogation that

courts have found coercive. Compare Ashcraft v. Tennessee,

(1944) (finding defendant’s will overborne by thirty-six-hour interrogation), with

Carpentino, 948 F.3d at 28-29 (finding defendant’s will not overborne by six-hour

interrogation). Pittman does not allege that the tone of the agents’ questions was

anything but professional. See United States v. Hughes,

(1st Cir.

6 2011) (statement not involuntary where “the tone of the interview was cordial”).

Indeed, the partial recording of the interview shows that the agents were courteous.

Pittman does not allege that the agents threatened him physically or with

harsher punishment if he refused to speak with them, nor that the agents offered

him leniency in exchange for answering their questions—and no threats or promises

were made in the partial recording of the interview. See Jacques,

-

10. He does not allege he was denied food, water, or medical care. See United States

v. Rojas-Tapia,

(1st Cir. 2006) (statement may be involuntary when

“law enforcement officials subjected defendant to physically coercive punishment

such as unreasonable deprivation of food”). Nor that he was denied the ability to

speak with others. See LaFave et al., supra (important consideration is whether

defendant was denied ability to speak with friends or family).

The agents provided Pittman with a Garrity waiver form and a UCMJ waiver

form, both of which he signed. Cf. Berkemer v. McCarty,

, 433 n.20

(1984) (“[C]ases in which a defendant can make a colorable argument that a self-

incriminating statement was ‘compelled’ despite the fact that the law enforcement

authorities adhered to the dictates of Miranda are rare.”). While Pittman contends

that his waivers were not valid because of his fatigue, here too he does not connect

the purported involuntariness of his waivers with any coercive or improper official

tactics. And courts have held that an officer’s statement referring to a waiver form

as a mere formality does not transform an otherwise valid waiver into an

involuntary one. See United States v. Syslo,

(8th Cir. 2002).

7 Pittman takes issue with the agents’ statements that the questioning would

not take long, when in reality it took approximately three hours. While “trickery can

sink to the level of coercion, this is a relatively rare phenomenon.” United States v.

Flemmi,

, 91 n.5 (1st Cir. 2000). Any deceptive assurances must be of a

nature that they overpower the defendant such that his statement is not the

product of his own free will. See, e.g., Lynumn,

(statement

involuntary where police falsely threatened to take suspect’s child away if she did

not cooperate). “[C]onfessions procured by deceits have been held voluntary in a

number of situations.” United States v. Byram,

(1st Cir. 1998).

See generally LaFave et al., supra (collecting cases). Here, even if it was improper

for the agents to assure Pittman that the questioning would not take long (a matter

on which the court expresses no opinion), such assurances did not overpower his

will such that his statements are the product of coercion—especially when

considered in light of Pittman’s personal circumstances.

The court takes judicial notice that Pittman was in his early fifties at the

time he was questioned. Thus, his age does not weigh in favor of a finding of

involuntariness. See J.D.B. v. North Carolina,

(2011)

(observing that a juvenile’s statement is more likely to be involuntary). More

importantly, Pittman is an educated professional—a Lieutenant Commander in the

United States Naval Reserve and the holder of a civilian position overseas with the

United States government. See Davis v. State,

, 822 (Ga. 2020)

(statement voluntary where defendant “was educated, [and] had additional

8 education through the military”); Commonwealth v. Amaral,

(Mass. 2019) (statement voluntary where defendant was a college graduate).

Pittman does not allege that he was “suffering from a physical injury, physical

illness, . . . mental illness, mental deficiency, emotional distress, or an abnormality

caused by drugs or alcohol.” LaFave et al., supra (footnotes omitted). And, while

Pittman contends that he would have been more comfortable had agents elected to

question him in Italy where he lived, Pittman is an American citizen whom

American authorities questioned at Pittman’s hotel at a time when he was present

in this country to fulfill his obligations as an American Naval Reserves officer. Cf.

United States v. Yunis,

(D.C. Cir. 1988) (explaining that “a

defendant’s alienage and unfamiliarity with the American legal system” should be

considered in determining voluntariness); United States v. Nakhoul,

(D. Mass. 1984) (fact that defendant was Lebanese national weighed in

favor of involuntariness despite fact that he lived in America because “his

understanding of American law, customs, and constitutional rights may be

limited”).

Finally, although Pittman requests an evidentiary hearing on his motion, the

court does not believe one is warranted in this case. “A criminal defendant has no

presumptive right to a hearing on a motion to suppress.” United States v. Cintron,

(1st Cir. 2013). To obtain an evidentiary hearing on a motion to

suppress, the defendant must make a threshold showing “that there are factual

disputes which, if resolved in his favor, would entitle him to the requested relief.”

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(quoting United States v. Francois,

(1st Cir. 2013)). Here, even

taking the facts laid out in Pittman’s motion as true, his statements were voluntary

under the totality of the circumstances. Thus, he is not entitled to an evidentiary

hearing.

CONCLUSION

For the foregoing reasons, Pittman’s motion to suppress (doc. no. 49) is

denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

July 3, 2024

cc: Counsel of Record

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