Robert Friedrick - FBI liar involved with Jackie Presser

The Government appeals from a determination by the District Court that certain statements made by an FBI agent in the course of interviews conducted by Justice Department lawyers are inadmissible against him in a prosecution for making false statements in previous interviews. Following a thorough evidentiary hearing, United States District Judge George Revercomb concluded that, in view of the totality of the circumstances, the Government obtained the statements from the FBI agent under compulsion, thus rendering them inadmissible under settled principles of Fifth Amendment law. We agree and affirm.I

In 1982, the Government launched an investigation into suspected corruption in the International Brotherhood of Teamsters. Jackie Presser, an official of Teamsters Local 507 in Cleveland, Ohio, and since 1983 president of the International, was suspected of participating in a scheme to "employ" persons who in reality rendered no services to the union, and to convert union funds paid to those "phantom employees." In connection with the investigation, the Government obtained convictions in 1983 of Jack Nardi and Allen Friedman, two "employees" who performed no services for the union. The investigation continued into 1984, with the Government focusing on the activities of Presser and other officials of Local 507.

The investigation was complicated by the fact that Presser, unbeknownst to prosecutors conducting the investigation, had for many years been an informant for the Federal Bureau of Investigation in Cleveland. The FBI relationship began with Agents Patrick Foran and, later, Martin McCann serving as Presser's "handling agents"; finally, Special Agent Robert S. Friedrick, the defendant in this case, stepped into the "handler" role. At the time of the investigation, Friedrick served, as had his predecessors McCann and Foran, in the capacity of supervisor of the FBI's Organized Crime Unit in Cleveland.

Over time, it became increasingly apparent to Justice Department investigators that Presser was connected in some fashion with the FBI's Cleveland office. To explore the nature of this relationship, DOJ investigators met with FBI officials in Cleveland on July 3, 1984. McCann, Foran, and Friedrick, as well as several Government investigators, attended the meeting. The meeting, which was informal in nature, took place in the living room of Foran's in-laws. At that time, there was no reason to suspect that FBI personnel had been involved in illegality. Accordingly, no oaths were administered, and no transcript taken.

At this meeting, the investigators learned that Presser had indeed served as an FBI informer for many years. The investigators specifically asked the three agents whether Presser had ever been authorized by FBI personnel in Cleveland to employ "no-shows." In response, Friedrick stated that he had personally authorized the hiring of one person, George Argie; Friedrick later maintained that Foran was in fact the agent who authorized hiring Argie. None of the three agents, however, admitted to having authorized the hiring of the previously convicted Jack Nardi or Allen Friedman. As a result, the Government's investigation into Presser's activities continued.

After nearly a year had passed, the Justice Department was preparing to indict Presser for several offenses arising out of his role in the employment of Nardi and Friedman. In June 1985, David Margolis, the head of the Department's Organized Crime and Racketeering Section, held meetings with John Climaco, Presser's attorney, to discuss Presser's status. In the course of those meetings, Climaco informed Margolis that Presser had been authorized by his FBI "handling agents" to employ "phantom employees."1 Soon after these meetings, on June 20, 1985, Friedrick (and his predecessors, Foran and McCann) were interviewed in Cleveland to explore any possible basis for Climaco's claims. At this interview, which like the July 3, 1984 meeting was not conducted under oath, Friedrick stated that he had personally told Presser not to remove Friedman from the union payroll even though Presser had wanted to do so.

Six days later, on June 26, 1985, Friedrick, under orders from his superiors, appeared at FBI headquarters in Washington, D.C., to review and sign a statement reflecting what he had related at the June 20 interview in Cleveland. By this time, the FBI had decided to pursue an internal administrative inquiry into the circumstances surrounding the FBI's "authorizations." In that inquiry, Justice Department lawyers decided to grant Friedrick transactional immunity from prosecution for his actions during the Presser affair.2 Thus, before requiring Friedrick to sign his statement, the investigators presented him with a Form FD-645.

The administrative inquiry, begun in June 1985, was soon upgraded to an internal criminal investigation focusing on potential prosecutions of Foran and McCann for obstruction of justice. In conjunction with the now considerably more formal investigation, Government investigators decided that further interviews with Friedrick were needed to explore inconsistencies between his (and his colleagues') July 1984 and June 1985 statements concerning the authorizations given to Presser. Accordingly, Ralph Regalbuto, a Special Agent in the FBI's Office of Professional Responsibility (FBI/OPR), informed Richard Schwein, Assistant Special Agent in Charge of the Cleveland office (and one of Friedrick's two immediate superiors), that Friedrick was to report to Washington on August 12, 1985. Schwein ordered Friedrick to appear, which Friedrick did.

The August 12, 1985 interview was conducted in Washington by lawyers from FBI/OPR. At that time, Friedrick was told that a formal investigation was being undertaken jointly by the Bureau and the Department of Justice's Office of Professional Responsibility (DOJ/OPR). Friedrick was further told that the Government's previous grant of immunity would be carried over to protect him in the joint investigation. Accordingly, investigators presented Friedrick with another Form FD-645, which he executed.

The August 12 interview was conducted under oath, but was neither recorded nor transcribed. At the interview, Special Agent Regalbuto explained to Friedrick that he was compelled to speak, but that in return the Form 645 insured that any truthful statements could never be used against him in a criminal prosecution. The formalities of the 645 procedure were scrupulously followed; for example, after a break in the proceedings, Regalbuto reminded Friedrick of his obligations and rights, and reread the Form 645 that Friedrick had executed that morning. Moreover, when the interview continued into a second day, Regalbuto again read the Form 645 warning to Friedrick. At the end of the interview, on August 13, Friedrick signed a statement setting forth the substance of the two-day interview. In essence, Friedrick stuck to his prior story, embellishing some details.4 The undisputed fact is that Friedrick continued to lie under oath.

One day later, Friedrick telephoned Regalbuto from Cleveland to clarify his statements and to volunteer further information. On August 16, Friedrick once again telephoned Regalbuto. During that conversation, Friedrick admitted that he "lied" about the nature and extent of his conversations with Foran and McCann. Friedrick also admitted that the three agents had discussed among themselves their prospective answers to investigators' questions. According to Regalbuto, these conversations5 were a continuation of the administrative interview, but no further warnings were given to Friedrick; no Form 645 was read to Friedrick during the calls, nor was a form sent to Friedrick for him to sign afterwards.

The joint administrative and criminal investigations continued into the fall. On September 18, 1985, under orders to submit to further interviews, Friedrick again reported to FBI headquarters.6 He was promptly escorted across the street to the Justice Department, where the interview was conducted. The interview, which was under oath, recorded, and transcribed, was attended by both DOJ and FBI attorneys. Regalbuto and the DOJ attorneys conducted the questioning; as before, Regalbuto explained to Friedrick the purpose of the interview, furnished him with another Form 645, and related his rights and obligations. Regalbuto informed Friedrick that he was required to be candid, and that his only possible exposure was for any false statements in the course of the interview. During the interview which followed, Friedrick stood by his previous statements.

After Friedrick's September 1985 interview, the Government empanelled a grand jury in Cleveland to hear evidence concerning possible obstruction of justice in connection with the aborted investigation into Presser's activities. The grand jury heard evidence over the course of the fall and into the winter of 1985-86. The concurrent FBI internal investigation continued as well.

Shortly after New Year's Day, Friedrick was again directed--through the same FBI channels employed on the prior occasions--to appear in Washington for another interview. Accordingly, on January 6, 1986, Friedrick reported for the interviews that turned out to be the focus of this case.

After the January 7 breakthrough, the interview adjourned, to be continued the next day. But the interview resumed on January 8 with different procedures: Friedrick was now placed under oath, and the interview itself was recorded and transcribed. However, the prosecutors explained none of Friedrick's rights to him; they informed Friedrick once again that the purpose of the interview was to prepare him as a grand jury witness. In this regard, they emphasized Friedrick's obligation to tell the truth:

MR. ROGERS: [Y]ou've told us a version that's different from what you've told us in the past. What we want to do is take what you've told us over the last couple of days and cover the whole thing all at once. Now since the [sic] version is different from the prior times, and since this is preparatory to a grand jury appearance by you, we want to make sure that this version is the truth, okay? Now, you understand that is your obligation at this point?

Transcript of Interview, January 8, 1986, at 4 (hereinafter Tr. 1/8/86) (emphasis added).11

It was thus made clear to Friedrick that he was being prepared for an appearance before the grand jury and that he was obliged to tell the truth. With these ground rules having been stated, questioning continued through January 8. Toward the close of the day, the prosecutors expressed frustration with Friedrick's gradual revelation of new facts concerning the authorizations and his evolving description of Foran's and McCann's roles. They referred once more to Friedrick's status as a prospective grand jury witness:

MR. ROGERS: What about Foran and McCann? I keep going back to this and I keep asking you because, you know, ... it seems like each time we talk about it there's a little bit more that you have in you that you need to get out, and each time there's a little more detail. I ask it because, you know, we are eventually going to have to put you in a grand jury. I don't want it coming out for the first time there, or worse, coming out after.

Id. at 178-79 (emphasis added). At this juncture Friedrick related his own remorse and anguish over his conduct, and how he had found it increasingly difficult to live with his lies. Id. at 178-81. But the day nontheless closed, as it had begun, with the prosecutors focusing on Friedrick's going before the grand jury in Cleveland and the importance, in consequence, of learning the entire truth in advance of any such appearance.

Finally, as the interview continued into January 9, the focus of the prosecutors' questioning shifted. According to Chapman and Rogers, instead of viewing Friedrick as a prospective grand jury witness, they decided to explore explicitly the inconsistencies between Friedrick's August and September 1985 statements and those made at his January interviews. Tr. 313-14, 345-46, 354. On this the fourth consecutive day of interrogation, the prosecutors for the first time specifically informed Friedrick that he could remain silent:

After careful review of the record, we are constrained to conclude that the District Judge's decision to exclude the statements was correct. The record reveals unmistakably, and indeed the Government commendably does not contest, that Friedrick enjoyed informal transactional immunity from prosecution in connection with obstruction of justice charges on the morning of January 6, when the pivotal set of interviews began. In addition to his transactional immunity as a grand jury witness,18 ] Friedrick also enjoyed the use immunity conferred upon him as an FBI employee subject to an administrative investigation. In that investigation, Friedrick was indisputably obliged to answer all questions truthfully. As Form 645 expressly provides, an FBI employee's refusal to answer can result in disciplinary action, including dismissal. That much is common ground. The issue before us, on which the parties are deeply divided, is whether Friedrick's belief that the administrative inquiry was continuing was reasonable, and whether Friedrick at any point during the January 6-9 interviews waived his Fifth Amendment privilege against compelled self-incrimination. The Government contends that Friedrick's pangs of conscience were his true motivator in confessing. We think, however, that if Friedrick's statements were made under immunity (or were otherwise involuntary), they retained that status for purposes of constitutional analysis regardless of any pangs of conscience on his part.

We will now examine in detail the particular points at which Friedrick's belief that he was under compulsion is alleged to have become unreasonable, or at which he is alleged to have waived the privilege. They include: a) at the beginning of the January 6 interview; b) statements relating to the polygraph interview on January 7--in agreeing to undergo the examination, in the conversation with the polygraph operator, and in the statements made on January 7 and 8 in the wake of his confession to the operator; and finally, c) after the colloquy on January 9 during which Friedrick was told for the first time that he could remain silent.

* We think it beyond reasonable dispute that when Friedrick initially appeared on January 6, he was acting under compulsion. After all, Friedrick had been ordered by his FBI superiors to appear, just as had been done in August and September of the previous year. The Government contends, however, that once the interview began on January 6, the circumstances were so different from the various interviews that preceded the January 1986 events that Friedrick ought reasonably to have realized that the ground rules had changed and, more specifically, that his statements were no longer protected by the previously granted 645 immunity. Under these circumstances, the Government contends, a reasonable FBI agent of Friedrick's considerable experience would have realized that the FBI's administrative investigation had ended, and that he was now faced with an entirely distinct criminal investigation by the Justice Department. The Government's position is not without force; however, like Judge Revercomb, we are persuaded that it is in error.

First, as we saw in the narrative of events, Friedrick was ordered by his superiors in the Bureau to appear in Washington, D.C. for "further interviews." This directive was identical to that which he had previously received in the fall of 1985 and which had led to the prior interviews. Some of those interviews, it will be recalled, were conducted in the Justice Department building by DOJ and FBI personnel. What is more, the precise channel for communication of Friedrick's orders to appear, namely a directive from Special Agent Regalbuto in Washington communicated to Friedrick by his FBI superiors in Cleveland, was employed in January 1986 just as it had been in September 1985. At least until he walked in the door for the January 6 interviews, Friedrick had no reason to suspect that he was not there in his capacity as an FBI employee directed to attend and submit to an interview as a follow-up to the earlier proceedings. We also do not find the three-month gap significant, in view of the fact when the January interviews commenced the prosecutors focused, not on Friedrick's prior administrative immunity, but on his status as a potential grand jury witness enjoying informal transactional immunity. At the outset of the interview, Friedrick would therefore have had no reason to focus on whether the applicable ground rules had changed.

The Government emphasizes several factors indicating that an experienced FBI agent should have known the ground rules had changed on January 6. For example, no FBI personnel were present; indeed, the interviews were conducted solely by DOJ personnel. In these circumstances, according to the Government, it was unreasonable for Friedrick to think he was appearing pursuant to an internal FBI investigation.

We think not. To the contrary, Friedrick had been informed from the beginning of the investigation that FBI and DOJ were conducting a joint inquiry. It was therefore unremarkable that DOJ personnel conducted the interview. As we have seen, DOJ lawyers had participated in the interviews on prior occasions. The fact that Regalbuto was not present on January 6 does not reasonably suggest that the FBI--which after all had ordered Friedrick to appear--was somehow, without explanation, no longer involved.19

Nor does the fact that Friedrick was not provided with a Form 645 weigh heavily in the balance. As we saw before, Friedrick had had several follow-up communications with Regalbuto in the fall of 1985 where no Form 645s were employed. But, more fundamentally, the absence of a Form 645 on a particular occasion, without more, is of little moment in view of the rich history of what had gone before. The record reveals beyond question that FBI personnel, namely the experienced Regalbuto, viewed the January proceedings as a continuation of the 645 procedures; indeed, if the nature of the proceedings had in fact changed, then Friedrick reasonably would have expected the entirely different Form 644 to be furnished to him. That, we cannot but observe, is precisely the tack taken by the two DOJ lawyers in their interactions with Foran, who in similar circumstances, upon being advised of the nature of the proceeding, declined to cooperate. See Tr. 333. As to Friedrick, however, the prosecutors determined not to furnish either Form 645 or 644 to him, and indeed to keep entirely mum on the subject. In our view, studied silence in this context is consistent with a continuation of the already established pattern; it is emphatically not a signal of an investigative volte face.

B

The next point at which the Government contends Friedrick waived his Fifth Amendment privilege was in agreeing to take a polygraph examination on January 7 and in executing the accompanying waiver form. According to the Government, the polygraph waiver was broad enough to bring in statements made to the operator after completion of the exam, as well as the subsequent statements in the resumed interview with Rogers and Chapman. The Government argues that although Friedrick's answers to specific questions during the exam may be inadmissible (under settled law concerning polygraph exams), anything that he said to the polygraph operator after the exam was completed was voluntary and therefore admissible.

In our view, this argument misses the mark. If the conversation with Minor is viewed as separate from the polygraph exam, Friedrick's status in talking with Minor was precisely the same as his status with Rogers and Chapman. In his conversation with Minor, Friedrick remained an FBI employee, present under compulsion. That he was not compelled to submit to the polygraph exam does not mean that he ceased being compelled to be present at all. In the absence of any warnings beyond the limited polygraph waiver, Friedrick's statements to Minor were of the same nature as those made to Rogers and Chapman. The conversation with Minor was not a distinct event in terms of Friedrick's Fifth Amendment status.

The Government argues that the remainder of the resumed post-polygraph interview with Rogers and Chapman was rendered voluntary by virtue of (1) the polygraph waiver form, and, more persuasively, (2) Friedrick's inevitable conclusion that his career at the FBI was finished by virtue of the serious admissions he had made to Minor and then to Rogers and Chapman. As to the first argument, clearly the polygraph waiver was just that, nothing more. It cannot reasonably be maintained that when one submits to a polygraph exam, one also agrees to submit to general questioning thereafter outside the polygraph setting. The limited waiver by its own terms tends to foreclose just such a construction. After all, during the August 1985 interviews Friedrick agreed to take a polygraph (but later changed his mind). There is no suggestion that had Friedrick actually taken the polygraph at that earlier juncture, his 645 immunity would somehow have lapsed, thereby rendering all statements made thereafter admissible.

The Government's real argument is that Friedrick knew his number was up, and thus could not reasonably have thought that he was any longer under compulsion as an FBI employee. We are persuaded, however, both that Friedrick believed that he continued to be under threat of job sanctions if he refused to speak, and that this belief remained reasonable, even after his admissions following the polygraph examination. The reason for our conclusion is simple and straightforward: Friedrick was at all times during the questioning an FBI employee who was under orders from his superiors in the Bureau to attend and participate in the interviews. Friedrick had not been invited to come to Washington. He was instructed to appear, just as he had been several times previously. Friedrick was plainly in Washington, as Judge Revercomb concluded, in the capacity of an FBI employee who had no choice but to answer questions or else risk being fired. Indeed, even after Friedrick admitted lying in September 1985, he continued to be treated by the Bureau as an employee.

It is also significant that Friedrick's superiors continued to regard him as under their command--and therefore as an FBI employee--after the watershed events of January 9. Friedrick's appearance in Washington almost one month later--on February 4--was pursuant to orders similar to the ones he had received before each of the previous interviews. Thus, the FBI itself continued to treat Friedrick as an employee; no notice of termination or the like was provided to him. He was, it bears emphasis, in the posture of an FBI employee being directed by his superiors to carry on in the process of providing information relating to his duties. As long as Friedrick believed he had a job to lose--and the FBI never treated him otherwise--there was no reason for him to believe that the interviews were not obligatory in the same manner as his prior interviews.

Moreover, it bears noting again that the view of FBI personnel familiar with the interviews on January 6-9 was that Friedrick was indeed under compulsion. For example, Regalbuto believed that the interviews were a continuation of the previous internal investigation, as evidenced by his producing a Form 645 for Friedrick to execute on January 7; that understanding was reaffirmed by Regalbuto's testimony at the hearing before Judge Revercomb. See Tr. 140-41. What is more, in ordering Friedrick to appear for further interviews in January, Friedrick's FBI superior in Cleveland, Richard Schwein, likewise believed that those interviews were a continuation of the earlier process. See id. at 365. See generally Appellee's Brief at 43-44.

It thus will not do for the Government to have pursued a continual course of treating Friedrick as an employee--directing him time and again in his capacity as an employee to appear and cooperate in the investigation--and yet maintain that Friedrick should have concluded that his goose was sufficiently cooked that he was not in law an employee, and that the compulsion inherent in the 645 process had disappeared. This is metaphysics. It is subtlety of legal argument that is belied by the hard, cold facts. Those facts, lest there be any mistake, are that the FBI chose, on its own accord, to keep Friedrick on the payroll and to order him around as an employee. There were no pink slips, no suspensions, no threats of discharge. The Government cannot now in conscience be heard to say that Friedrick was, to coin an unhappy phrase in this context, only a "phantom employee," one in form but not in substance. Until the FBI treated him as other than an employee--or even intimated that his employee status was in jeopardy--Friedrick's belief that the interview was compelled (under Form 645) remained reasonable. Our position, moreover, is not based solely on Friedrick's continued employment, but also on the fact that given the unrelieved pressures to which he was continually being subjected at the time the questioning shifted to his candidacy for a false statements indictment, he could not reasonably be expected to appreciate that the Form 645 process was now over, and that his job would inevitably be forfeited.

But that is not all. Friedrick was also a prospective government witness before the grand jury in Cleveland. It was that role, indeed, that the two prosecutors emphasized time and again during the four-day interview. Their statements in this respect were clear and plain--their intent was to put Friedrick before the grand jury in Cleveland. At a minimum, Friedrick was being evaluated for a possible appearance before the grand jury. And in that capacity as a prospective witness, Friedrick enjoyed, as the Government forthrightly admits, informal transactional immunity. Thus, to the extent that the prosecutors were directing questions to Friedrick as a prospective grand jury witness, he enjoyed immunity in that capacity as well. And that branch of immunity continued so long as Friedrick continued (or reasonably thought that he continued) to be in the role of a prospective grand jury witness.

The Government's position is further weakened by yet another oddity in its argument. According to the Government, Friedrick was present at the interview as an immunized prospective grand jury witness and as a potential defendant in a false statements prosecution. The Government contends that Friedrick was free to refuse to answer questions relating to his exposure as a potential defendant in a false statements prosecution; but, as an immunized witness, Friedrick had no choice but to answer questions relating to a possible grand jury appearance. We disagree that the admissibility of Friedrick's answers to questions, i.e., whether each question, taken alone, was compelled, can in these circumstances depend on to which branch of Friedrick's status each question was directed. Just to state the relationship is to suggest its considerable complexity. This is especially so considering the close interrelation of the two "prongs" of questioning; the possible false statements by Friedrick and possible obstruction of justice in the Presser investigation both arose out of the same conduct by Friedrick and his colleagues. It belies reality to expect an interviewee--even an FBI veteran who graduated from the Naval Academy--to evaluate each question during the course of a four-day interview and to decide for himself each time whether the question is one he is compelled to answer or is, in contrast, one as to which he may remain silent.

Until the warning provided him on January 9, Friedrick continued, as we read this record, to enjoy both branches of immunity. He was, as it were, doubly immunized. We fail to see how, given the background existence of the Form 645 process and the continued references to his prospective appearance before a grand jury as an immunized witness (from charges of obstruction of justice), Friedrick could reasonably be expected to discern his "true" status. In these ambiguous circumstances, the Government cannot reasonably have expected Friedrick to read his interviewers' minds as to his purportedly changed status.

C

That brings us to the final point at which Friedrick's immunity is said to have disappeared, namely, the fateful colloquy on January 9 when the prosecutors informed Friedrick (for the first time) that he could remain silent. The force of the Government's argument is manifest; the warning itself was set forth in clear terms. Before addressing the implications of this point, however, we cannot but observe that the January 9 warning stands as a rebuke to the Government's arguments, previously addressed, that all of Friedrick's statements during the four-day interview were voluntary. The final day is an odd time to be sharing with an interviewee a rather elemental rule of the game. Referees ordinarily provide ground rules before the beginning of the fourth quarter of play. So too, warnings by prosecutors are to be given in timely fashion; otherwise, the warnings are, pro tanto, for naught. The oddity of this late shift in rules thus places in bold relief the Government's assertions that the entire four-day proceedings represented a voluntary act on Friedrick's part.

In any event, the Government argues that, even if his prior statements were inadmissible by virtue of having been compelled, Friedrick was adequately warned on this final day of his right to remain silent and that he voluntarily chose to waive that right. In response, Friedrick argues that the warning was inadequate. In Friedrick's view, only a warning that made explicit that he could not be fired for refusing to talk would have sufficed.

Upon analysis of the transcript, we conclude, consistently with Judge Revercomb's well-considered analysis, that the apparent waiver on Friedrick's part was, in fact, beclouded by two factors: first, the prosecutors' continued reference to Friedrick's possible grand jury appearance; and second (and relatedly), the inadequate process of informing Friedrick in clear and understandable terms as to his status. We reiterate that up to the moment on that fourth day that he was informed he could remain silent, Friedrick, as an FBI employee appearing pursuant to an administrative inquiry, believed that he was under compulsion. In response to Rogers' first mentioning on that final day that Friedrick could remain silent, the latter exclaimed, "What do you mean? You're advising me of my rights now; is that what you're saying?" Tr. 1/9/86 at 265.

Friedrick's reaction, in our view, was entirely understandable. It seems inescapable that the reason for the "warning," coming as it did so late in the four-day process, was that the ground rules had theretofore been different. Friedrick was now being told that he did not have to answer the questions at all. Coming on the heels of three days of thorough questioning, this sudden shift would strike a reasonable interviewee as odd. And so it was that this disharmonious chord prompted Friedrick to question his interrogators in the most basic way: "What do you mean?" Under the circumstances, a basic question like this called for a basic, straightforward answer. But one was not forthcoming. Seeking clarity, Friedrick instead was met with the following unedifying response: "In a sense." Id.

Later in the interview, Friedrick once again asked the prosecutors about his position: "Well let me ask you, is this a formal advisory of my rights? I think you've got to be honest with me, too." Id. at 271. At this pivotal juncture, Rogers equivocated. "I know. That's why I hesitate in the answer." Id. After being pressed by Friedrick to clarify his status, Rogers again equivocated:

And I'm trying to be cautious. I don't want to advise you of your rights and say, Bob, you know, we suspect you've committed a crime in giving us this statement.

Id. at 272 (emphasis added). In these exchanges between Friedrick and his interviewers, it is manifest that Friedrick did not receive a clear advisory as to his status.

But one point remains in the Government's favor: Friedrick stated himself that he understood his position and invited the interviewers to continue questioning.20 At first blush, a statement of this sort by an agent of 12 years' experience would seem to render voluntary any statements made thereafter. But, although the question is not without difficulty, we, like Judge Revercomb, are in the end not persuaded.

The reason for our agnosticism is the brooding omnipresence of Friedrick's dual immunity. The repeated references by the prosecutors to his status as a grand jury witness during the four-day interview ineluctably suggest that Friedrick enjoyed the immunity flowing from that role. In addition, as we have previously recounted at tiresome length, Friedrick entered the interview room on January 6 as an FBI employee and remained in employee status throughout the four days. It scarcely can be overemphasized that he was at no time treated in any manner other than as an employee. Given his continuing status as an employee and our view that Friedrick reasonably believed the administrative process to be continuing, until he was told explicitly otherwise Friedrick's statements remained inadmissible. He would reasonably expect not to be treated as an employee if either his job was lost or his 645 immunity had lapsed. Even if this were not the case, and Friedrick realized on January 9 that the administrative inquiry was at an end, his statements indicate that he viewed the possible grand jury appearance as rendering his statements protected (and thus inadmissible). Without seeking unduly to extend this opinion, we quote once more from an important passage on that fourth day:

MR. FRIEDRICK: The only question I have is the one I just asked you before.

MR. CHAPMAN: In terms of the clean slate?

MR. FRIEDRICK: Before we went into the grand jury basically, what you meant by it.

MR. CHAPMAN: As we have indicated here, I think on [January 6] when we first met with you, is that we are interested in talking to you prior to considering taking your testimony before a Federal grand jury ... and from that standpoint and from our interviews this week we obviously were interested in finding out what the truth was.

And I think in referring to a clean slate what we wanted to do in terms of getting information from you was basically forgetting, if you will, ... what you testified to previously, but wanting to get to the bottom of the truth....

MR. FRIEDRICK: ... The only thing I thought was, you know, this is your last chance to come forward before we go to the grand jury. From my inference was, you know ... that I had one more time to tell the story and not be subject to any prosecution.

Id. at 276-77 (emphasis added).

This exchange tells us several things. First, from the outset of the interview, Friedrick believed that he was beginning with a "clean slate" and had one last chance to tell the truth without fear of prosecution. In light of the FBI's administrative inquiry and the repeated references to Friedrick's status as a potential grand jury witness, we cannot in conscience condemn Friedrick's belief in this respect as unreasonable. Second, according to Chapman's own words, the prosecutors had represented to Friedrick that he was in fact beginning with a clean slate in order to try to get to the truth, again an obvious reference to Friedrick's immunized status as a potential grand jury witness. Immediately after Friedrick said that he understood his status, Chapman once again referred to Friedrick as a potential grand jury witness:

Well, I think as we have indicated to you all along, our reason for wanting to talk to you ... this week is so that we can evaluate what you have to say before such time as we are interested in taking testimony from you before a grand jury.

Id. at 277.

In short, the prosecutors told Friedrick in one breath that he could remain silent, but in the next they said they remained interested in putting him in front of the Cleveland grand jury. Under these circumstances, it eludes us as to how Friedrick, on the heels of three days of questioning, could reasonably have been expected to know with certainty his "true" position.21

IV

For the foregoing reasons, we agree with Judge Revercomb that Friedrick's statements during the January 6-9 interviews were made under compulsion and are therefore inadmissible. Accordingly, the order of the District Court is

Affirmed.