|Judge refuses to throw out Jefferson comments|
by Bruce Alpert, The Times-Picayune
Tuesday June 24, 2008, 2:26 PM
WASHINGTON - U.S. District Court Judge T.S. Ellis III today rejected Rep. William Jefferson's efforts to declare off limits the comments he made to FBI agents before a 2005 search of his New Orleans home.
Jefferson, D-New Orleans, had argued that FBI agents had followed him to the bathroom and made him fell like a prisoner in his own home and therefore any comments he provided should not be allowed in his public corruption trial in Alexandria, Va., now scheduled for Dec. 2.
But Ellis said he found no evidence of "strong arm tactics, or deceptive stratagems" or any indication he was subject to "restraints of the sort generally associated with formal arrest," and therefore his comments could be used by prosecutors.
There was no immediate comment from Jefferson's legal team.
The decision represented another victory for the Justice Department in pre-trial motions before Ellis. Ellis earlier refused to throw out most of the 16-count indictment, as requested by Jefferson's attorneys on grounds the grand jury that indicted him heard testimony of his legislative duties in violation of the Constitution's Speech or Debate clause. That decision is now under appeal before the 4th Circuit Court of Appeals in Richmond, Va.
In the latest pre-trial motion addressed by Ellis on Tuesday, Jefferson's attorneys argued that potentially damaging comments made by the congressman before the 2005 search of his home should be thrown out because he was made to feel as though he was a prisoner in his own house and wasn't advised of his legal rights to remain silent.
To illustrate the heavy-handedness of the FBI agents, Jefferson's attorney Robert Trout said that an FBI agent had questioned the congressman fresh out of bed -- dressed only in khaki trousers, a T-shirt, and with no shoes -- followed Jefferson to his bathroom.
Two hours after the interview began, after Jefferson said he was through answering questions, the FBI agents showed him a video tape that investigators say shows Jefferson taking a briefcase with $100,000 from a government informant, Lori Mody. After seeing the tape, FBI agent Daniel Evans testified that Jefferson "looked very dejected, sunk back into the couch and started saying, "What a waste. What a waste."
"He wanted to know how he could cooperate with us and how it would affect his reputation," Evans said.
In his ruling Ellis said he didn't think that an agent's following Jefferson to his bathroom indicated he was in custody.
"Agent Evans did not enter the bathroom with defendant, but rather waited outside while, at most, the bathroom door remained partially open," Ellis wrote. "Agent Evan's actions do not represent the sort of restraint normally associated with a formal arrest."
If Jefferson was under arrest, the FBI would have had to read him his Miranda rights, advising him that he need not answer questions. But Ellis said he did not find that Jefferson's movement was unduly restrained, and while agents never told him he didn't have to answer questions, they also "never told defendant he was under arrest and they never told him he could not terminate questioning."