Judge Colleen McMahon ruled that interviews conducted during an internal investigation by a defendant’s employer and its counsel at the request of the CFTC were “fairly attributable” to the CFTC.  The court determined that, under Second Circuit precedent,[1] the CFTC’s request that the employer conduct an internal investigation and interview one of the defendants was a government directive, given the pressure that the defendant felt to cooperate.  Accordingly, the use of a criminal defendant’s statements made during those interviews under threat of termination implicated that defendant’s Fifth Amendment right against self-incrimination.[2]  Despite this ruling, the court held that the defendant was not entitled to relief because the government did not use the defendant’s statements in a meaningful way.

Memorandum and Order

[1] In United States v. Stein, 541 F.3d 130 (2d Cir. 2008), the Second Circuit held that an employee’s rights were violated when federal prosecutors pressured the employer to withdraw legal fees from that employee.

[2] Under Garrity v. New Jersey, 385 U.S. 493 (1967), the Supreme Court found that the Fifth Amendment forbids federal prosecutors from using statements made by a defendant in a criminal case if those statements were made under a threat of firing that is “fairly attributable to the government.”