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United States v. Wand

United States District Court, M.D. Tennessee, Nashville Division

February 21, 2017

UNTIED STATES OF AMERICA, Plaintiff,
v.
WALTON MICHAEL WAND, Defendant.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE

         An indictment charges Walton Michael Wand with three counts of conspiracy to unlawfully produce and issue Tennessee driver's permits in violation of 18 U.S.C. § 1028(f) and one count of soliciting and accepting bribes in violation of 18 U.S.C. § 666(a)(1)(B). Wand has filed two motions to suppress.[1] (Doc. Nos. 124 and 128.) First, Wand moves to suppress evidence of prior employment-related disciplinary acts pursuant to rule 404(b). (Doc. No. 124 at 1.) In response, the Government states that it does not currently “anticipate introducing evidence that could be classified as strictly Rule 404(b) evidence. Defendant will be promptly noticed should the Government become aware of such evidence.” (Doc. No. 131 at 2.) Accordingly, Wand's Motion to Suppress Evidence of Prior Acts Pursuant to Rule 404(b) (Doc. No. 124) will be DENIED AS MOOT WITHOUT PREJUDICE to re-file if the Government declares its intent to use evidence of crimes, wrongs, or other prior acts at trial.

         Second, Wand moves to suppress the existence, transcript, and results of an August 26, 2010 Tennessee Department of Safety (“TDOS”) meeting. (Doc. No. 128.) The Court held a hearing on Wand's motion on February 9, 2017. For the reasons discussed herein, Wand's motion (Doc. No. 128) will be DENIED.

         I. Factual and Procedural Background

         According to the Indictment, Wand was an employee of the Tennessee Department of Safety at all times relevant to this action. (Doc. No. 1 at 1 (Indictment).) Subject to Tennessee laws and regulations, Wand's duties included processing applications for Tennessee driver's licenses, administering tests to license applicants, and approving and issuing licenses. (Id.)

         The Indictment charges that Wand solicited and accepted money for producing and issuing Tennessee driver's licenses to unauthorized applicants between about August 7, 2009 through August 4, 2010. (Id. at 1-2.) The Indictment also charges that Wand conspired to unlawfully produce and issue Tennessee driver's permits to applicants that had not passed required tests and exams between about April 28, 2010 through May 6, 2010; March 3, 2010 through May 10, 2010; and April 27, 2010 through May 11, 2010. (Id. at 2-8.)

         At 9:40 a.m. on August 12, 2010, Wand signed a form titled “Admonition of Rights” and checked a box reflecting that he read and understood the form and that he was “willing to make a statement and answer questions at this time.” (Suppression Hearing Ex. 4.) The form was also signed and witnessed by a Sergeant Johnson that Wand believed to represent TDOS. (Id.; Doc. No. 144-1, Wand Aff. at ¶ 2). The form stated, in full:

I wish to advise you that you are being questioned as part of an official investigation of the Tennessee Department of Safety. You will be asked questions specifically directed and narrowly related to the performance of your official duties or fitness for duty.
You are entitled to all the rights and privileges guaranteed by the laws and the constitution of this state and the Constitution of the United States, including the right not to be compelled to incriminate yourself.
I further wish to advise you that, if you refuse to answer or not to answer questions truthfully relating to the performance of your official duties or fitness for duty, you will be subject to departmental charges which could result in your dismissal from the employment of the Tennessee Department of Safety.
If you do answer these questions, neither your statements nor any information or evidence which is gained by reason by such statements can be used against you in any subsequent criminal proceeding; however, these statements may be used against you in relation to subsequent departmental charges. This document is executed by a duly appointed representative of the Commissioner of the Tennessee Department of Safety.

(Suppression Hearing Ex. 4.)

         At 11:40 a.m. on August 12, 2010, Wand signed a form and checked a box reflecting that he wished to attend a “minimum due process discussion” (“MDP discussion”) regarding allegations that he improperly issued Tennessee driver's permits on May 11, 2010. (Doc. No. 132-1 (Minimum Due Process Discussion Form); Doc. No. 132-2 at 5-7 (Transcript of Proceedings).)

         At the hearing on February 9, 2017, the Government called Deborah Martin, a TDOS attorney, whose duties included handling personnel matters. (Doc. No. 139 (Exhibit and Witness List).) Ms. Martin explained that the TDOS disciplinary process began when a complaint against an employee was given to the TDOS Office of Professional Responsibility (“OPR”) for investigation. OPR informed the employee's supervisor of the results of the investigation, and the supervisor recommended disciplinary action to the TDOS Commissioner. Ms. Martin explained that, when a supervisor recommends termination, the law affords the employee a right to an MDP discussion. Ms. Martin testified that the MDP discussion is not an administrative hearing, and described it as a discussion between the employer and employee where the employee has the opportunity to tell the employer why the recommended disciplinary action (termination in the case of Wand) is not appropriate. The employee must be notified of the right to attend an MDP discussion, but is not required to attend the MDP discussion.

         Ms. Martin testified that Wand was not required to make a statement at his MDP discussion and that he would not have suffered any adverse effects if he chose not to make a statement. Ms. Martin explained that there were no findings of fact made during or immediately after the MDP discussion. Ms. Martin explained that in the context of an MDP discussion, the term ...


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