FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

 v. 

JAMES MICHAEL WELLS,

 Defendant-Appellant.

Nos. 20-30009

21-30121 

D.C. Nos. 

3:13-cr-00008-SLG-1 

3:13-cr-00008-SLG

OPINION

Appeal from the United States District Court

for the District of Alaska

Sharon L. Gleason, Chief District Judge, Presiding

Argued and Submitted June 7, 2022

Anchorage, Alaska

Filed December 14, 2022

Before: Andrew D. Hurwitz, Daniel A. Bress, and Holly 

A. Thomas, Circuit Judges.

Opinion by Judge Bress
2 UNITED STATES V. WELLS 

SUMMARY*

Criminal Law

The panel affirmed James Wells’s convictions, vacated 

the district court’s restitution order, and remanded for 

further proceedings in a case in which Wells, while a Coast 

Guard employee, shot and killed two co-workers at a Coast 

Guard station. 

Wells contended that under the Fifth Amendment and 

Garrity v. New Jersey, 385 U.S. 493 (1967), statements he 

made to government investigators should have been 

suppressed because they were made under threat of loss of 

employment. 

The panel’s independent review of the record 

confirmed that the investigators did not explicitly threaten 

Wells’s job security if he refused to incriminate himself, 

and Wells did not argue otherwise. Instead, Wells 

advanced a theory of implicit coercion by virtue of an 

employment manual, and a letter of caution he received

after allegedly using a fuel card for his personal vehicle, 

which, he argued, operated in the background of his 

interviews to create “an impermissible penalty situation.” 

The panel held that in the absence of a direct threat of loss 

of employment, the appropriate framework for the court is 

to consider both the public employee’s subjective belief 

and the objective reasonableness of that belief to determine 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
UNITED STATES V. WELLS 3

whether the employee’s statements were improperly 

coerced; it is only when both elements are satisfied that the 

employee is, under Garrity, entitled to suppression of his 

statements absent a grant of immunity. The panel rejected 

Wells’s argument that United States v. Saechao, 418 F.3d 

1073 (2005), controls and sets forth a purely objective test.

Turning to Wells’s Garrity claim within the proper 

framework, the panel wrote that the evidence in the record 

does not suggest that Wells subjectively believed that either 

the employment manual or the letter of caution required 

him to answer the investigator’s questions or to waive his 

immunity from self-incrimination; to the contrary, the 

interview transcripts reveal Wells’s affirmative intent to 

cooperate with the investigation in an apparent effort to 

make it seem that he had nothing to hide. Having 

concluded that Wells did not establish a subjective belief 

that he was required to answer the investigators' questions 

or suffer an employment consequence, the panel did not 

need to consider whether, if Wells had held such a belief, it 

would have been objectively reasonable. Thus, Wells was 

not implicitly coerced to provide his interview statements, 

and the Fifth Amendment did not prevent the introduction 

of his statements at trial.

In ordering Wells to pay $1,921,640 in restitution 

pursuant to the Mandatory Victims Restitution Act 

(MVRA), the district court determined that restitution 

should be paid using 80% of the monthly payments from 

his retirement and disability benefits. Wells claimed that 

under provisions of the Consumer Credit Protection Act, 15 

U.S.C. § 1673, that are incorporated into the MVRA, his 

retirement and disability benefits constitute “earnings,” 

which cannot be garnished more than 25%. The district 

court concluded it had discretion under the All Writs Act to 
4 UNITED STATES V. WELLS 

order garnishment of a higher percentage of the monthly 

payments. The panel held that because the MVRA creates 

specific statutory requirements for garnishing earnings, the 

All Writs Act cannot be used to sidestep those 

requirements. The panel vacated the restitution order and 

remanded for the district court to determine whether each 

of Wells’s benefit payment streams constituted “earnings” 

under § 1673; if so, the MVRA limited garnishment of 

those funds to 25%. 

The panel addressed other issues in a concurrently filed 

memorandum disposition. 

COUNSEL

Benjamin L. Coleman (argued), Singleton Schreiber 

McKenzie & Scott LLP, San Diego, California, for 

Defendant-Appellant. 

Daniel N. Lerman (argued), Attorney, Appellate Section; 

Lisa H. Miller, Deputy Assistant Attorney General; 

Kenneth A. Polite Jr, Assistant Attorney General, United 

States Department of Justice, Criminal Division, 

Washington, D.C.; Bryan Wilson, Attorney; Stephen L. 

Corso and Steven E. Skrocki, Assistant United States 

Attorneys; John E. Kuhn Jr., United States Attorneys; 

Office of the United States Attorney, Anchorage, Alaska; 

for Plaintiff-Appellee.
UNITED STATES V. WELLS 5

OPINION

BRESS, Circuit Judge:

On the morning of April 12, 2012, two Coast Guard 

employees were shot and killed at a Coast Guard station on 

Kodiak Island, Alaska. A jury found that their co-worker, 

James Wells, had committed the murders. In this opinion, 

we primarily address Wells’s contention that under the 

Fifth Amendment, statements he made to government 

investigators should have been suppressed because they 

were made under the threat of loss of employment. We 

hold that Wells’s Fifth Amendment self-incrimination 

challenge fails because he was not coerced to speak with 

investigators on pain of losing his job.

In this opinion and an accompanying memorandum 

disposition, we affirm Wells’s convictions. But we vacate 

the district court’s restitution order and remand for further 

proceedings limited to that issue because the district court 

mistakenly relied on the All Writs Act in determining how 

certain benefits would be garnished. 

I

A

James Wells, Richard Belisle, and James Hopkins 

worked together at the United States Coast Guard 

Communication Station (COMMSTA) on Kodiak Island, 

Alaska. COMMSTA is “the 911 of the Bering,” fielding 

calls from mariners in distress and military aircraft passing 

through the airspace. After a lengthy military career, Wells 

for over twenty years worked as a civilian COMMSTA 

mechanic, maintaining the radio antennas used to 
6 UNITED STATES V. WELLS

communicate with aircraft and vessels. Belisle was the 

“master rigger” responsible for ensuring that antenna 

equipment was properly and safely rigged. Hopkins 

supervised both men.

At 6:48 a.m. on April 12, 2012, surveillance video 

captured Wells’s white pickup truck driving on the main 

road towards COMMSTA. Wells took this route every 

morning to get to work. On this particular day, Wells 

pulled off at the Kodiak airport, which is located on the 

same road about two miles from COMMSTA.

Wells’s wife, Nancy, had left her car, a blue 2001 

Honda CR-V, in the airport parking lot while on a business 

trip. At 7:09 a.m., security footage showed a blue car 

approaching the COMMSTA antenna maintenance facility 

(also known as the “rigger shop”), where Hopkins and 

Belisle were already working. The government’s theory 

was that Wells had swapped his vehicle for Nancy’s at the 

airport and driven it to COMMSTA, where he then shot 

Hopkins and Belisle.

Surveillance video showed a blue vehicle leaving the 

rigger shop at 7:14 a.m. By 7:22 a.m., Wells was seen 

driving his white truck away from the airport towards his 

residence. Altogether, this amounted to 34 minutes after 

Wells first arrived at the airport.

At 7:30 a.m., Wells called Hopkins (now deceased) and 

left a voicemail explaining that he would be late to work 

because he had a flat tire. Wells, Belisle, and Hopkins 

usually arrived around 7:00 a.m., while other COMMSTA 

employees typically came in later. Wells also left 

voicemails for Belisle (also deceased) and Scott Reckner, a 

supervisor whom Wells had only “very rarely” called in the 

past. After leaving these voicemails, Wells arrived at 
UNITED STATES V. WELLS 7

COMMSTA at about 8:30 a.m., after the murders had been 

discovered. When Reckner informed Wells of the murders, 

Wells responded, “Shit. I had a flat tire.”

COMMSTA authorities instructed all employees to 

remain at the station so that they would stay safe and be 

able to assist in the investigation. Shortly thereafter, the 

FBI and the Coast Guard Investigative Service (CGIS) 

arrived and launched an investigation. The investigators 

started by interviewing COMMSTA personnel. We 

recount the interviews with Wells in some detail because 

they form the basis for the principal issue that we address 

in this opinion.

Agents interviewed Wells four times in the evening of 

April 12 (the day of the murders), and twice more on the 

morning of April 13. In the first interview, which began 

around 7:21 p.m., Wells volunteered that “the only reason I 

wasn’t here this morning at 7:00 was I had [a] flat tire in 

my truck.” However, Wells admitted that he did not know 

exactly where or when his tire went flat, and that he did not 

“really look at it to see what was wrong.” He also 

answered questions about his background and duties at 

COMMSTA, the work environment, and his relationships 

with Belisle and Hopkins.

In the second interview, which began at 8:04 p.m., the 

agents asked Wells if they could search his truck to 

“verify” his story about the flat tire, and Wells replied, 

“Knock yourself out.” The agents told Wells “[t]his is 

totally voluntary” and “you can refuse this.” Wells 

reaffirmed his consent. The agents also asked Wells if they

could search his cell phone, and Wells again agreed. 

Before both searches, Wells signed acknowledgments of 
8 UNITED STATES V. WELLS

his rights. The agents then searched Wells’s truck and 

found in the back a tire that had been punctured by a nail.

Wells was interviewed twice more that evening, but the 

interviews were brief. The agents initially told Wells that 

they had follow-up questions after speaking to other 

employees, but after only three minutes (and no questions), 

they stopped the interview because Wells said that he 

needed to take medication. In the final session that 

evening, the investigators conducted a several-minute 

interview in which they suggested “having [Wells’s] hands 

wiped for gunshot residue” to “see what his reaction would 

be.” Wells agreed to the test. Wells would later testify that 

he had interpreted these interviews as “just . . . general 

information gathering” and nothing “out of the ordinary.”

By the next morning, the agents had reviewed the 

surveillance footage of the road leading to COMMSTA. 

The footage showed Wells’s truck driving to and from the 

airport. The agents decided to interview Wells again. 

Before initiating the interview, the agents informed Wells 

of his rights under Miranda v. Arizona, 384 U.S. 436 

(1966), emphasizing that “you don’t have to talk to us” and 

“don’t have to answer” questions. Although Wells said he 

was “a little concerned now,” he consented to the interview 

and signed a Miranda waiver. At one point in the 

interview, Wells declined to answer questions about his 

disciplinary issues (“Nope, I’d rather not”). But he 

otherwise responded to the questioning.

After substantial questioning about the layout, 

operations, and employees of the rigging shop, the agents 

turned to the previous day’s events. Wells reiterated that as 

he was driving to work, he noticed he had a flat tire. He 
UNITED STATES V. WELLS 9

then turned into a parking lot by the airport to check the 

tire, after which he decided to go back home to change it.

The agents informed Wells that the security footage 

showed a 34-minute gap between Wells’s truck driving to 

and from the airport. When asked to account for that time, 

Wells said he “d[idn’t] have a reasonable explanation for 

it.” One agent told Wells that they were “baffled,” to 

which Wells replied, “Well, so am I.” An investigator told 

Wells that “[t]hings aren’t adding up with that story,” and 

Wells simply responded, “I don’t have [a] theory at the 

moment.”

Later that day, investigators asked to interview Wells 

again, explaining that “your stories aren’t lining up with the 

factual time lines that we have.” Wells asked, “Are you 

accusing me?” The agents said “[a]t this point, yes Jim.” 

Wells terminated the interview.

Meanwhile, attempting to locate the blue vehicle they 

had seen in the security footage, the agents went to the 

airport, where they found Nancy’s blue CR-V. They later 

learned that the car was parked in a different spot than 

where Nancy had left it, and there was mail addressed to 

Wells in the front seat that had not previously been there. 

After a lengthy process to rule out other suspects—which 

involved obtaining a list of all vehicles registered in 

Kodiak, identifying those that potentially matched the one 

in the video, and interviewing the owners—the 

investigators came to believe that the vehicle in the video 

was, in fact, Nancy’s blue CR-V.

The agents searched Wells’s home. While they did not 

recover the murder weapon, they did discover the same 

type of ammunition found at the crime scene. Many 
10 UNITED STATES V. WELLS

months later, on February 15, 2013, Wells was arrested for 

the murders of Hopkins and Belisle.

B

On February 19, 2013, Wells was indicted on two 

counts of first-degree murder within the maritime and 

territorial jurisdiction of the United States, 18 U.S.C. 

§ 1111; two counts of murder of a federal employee, 18 

U.S.C. § 1114; and two counts of using a firearm in relation 

to a crime of violence, 18 U.S.C. § 924(c). A jury returned 

guilty verdicts on all counts. Wells was sentenced to life in 

prison and ordered to pay restitution. See United States v. 

Wells, 879 F.3d 900, 907–08 (9th Cir. 2018) (Wells I).

Wells appealed. He raised various legal challenges to 

his conviction and sentence, including that the district court 

had erred in denying his motion to suppress his interview 

statements under Miranda. We affirmed the denial of the 

motion to suppress, holding that “Wells was not in custody, 

and therefore no Miranda warnings were required.” United 

States v. Wells, 719 F. App’x 587, 590 (9th Cir. 2017). But 

concluding that the government had engaged in 

prosecutorial misconduct during trial, we reversed Wells’s 

conviction. Wells I, 879 F.3d at 907–08. We also ordered 

reassignment of the case to a new district court judge. Id. 

at 938.

Before Wells’s second trial, he again moved to suppress 

the statements he made during the interviews. This time, 

Wells advanced a different theory, claiming that the 

investigators had violated his Fifth Amendment rights by 

coercing him to incriminate himself under threat of loss of 

employment. Wells maintained that the statements should 

be excluded under Garrity v. New Jersey, 385 U.S. 493 
UNITED STATES V. WELLS 11

(1967), because investigators had not warned Wells that he 

faced no adverse employment consequences if he declined 

to answer questions. The district court denied Wells’s 

motion to suppress. Audio recordings of Wells’s 

interviews with the investigators were played for the jury 

during trial.

In its case in chief, the government presented the theory 

that Wells had been provoked by various workplace 

incidents leading up to the murders. Prior to the murders, 

Wells had been disciplined for misconduct. In April 2011, 

Wells received a “letter of expectations” because he 

frequently missed work without informing his supervisors. 

Wells received another cautionary letter in January 2012, 

after he allegedly used a COMMSTA fuel card for his 

personal vehicle.

Wells’s supervisor, Scott Reckner, testified to further 

difficulties Wells experienced at COMMSTA. In late 

2011, Wells began having health problems and Reckner 

had to ask Hopkins and Belisle to “step[] up” to cover 

Wells’s responsibilities. Because of this, Reckner decided 

to send Hopkins and Belisle to an annual conference that 

Wells had attended in the past, which angered Wells. On 

the day before the murders, Wells and Belisle disagreed 

over how to install a particular antenna—an issue typically 

within Wells’s purview—and Reckner sided with Belisle, 

praising Belisle for a “great idea.”

The government put on nearly sixty fact witnesses and 

eight experts. These included a forensic tire expert who 

analyzed Wells’s tire and determined that it was “pristine,” 

with “no evidence of the tire ever having been run low or 

flat.” The expert observed that the nail in the tire lacked 

any surface abrasions, opining that “the nail was inserted 
12 UNITED STATES V. WELLS

manually in the tire as opposed to being picked up on the 

highway.” The jury was also shown the footage of the blue 

vehicle driving to the rigger shop immediately before and 

after the murders, as well as a video reenactment that 

investigators had staged on April 19, 2012. Multiple 

experts opined that the car shown in the security footage 

was consistent with a 2001 Honda CR-V.

Wells testified in his own defense. He maintained that, 

as he had told the investigators, he pulled into an airportarea parking lot upon realizing that he had a flat tire. But in 

an attempt to explain the previously unaccounted-for 34-

minute gap between his truck arriving at and leaving the 

airport, Wells now claimed that he had “messed his pants” 

as he exited his truck at the airport. He testified that he 

went to use a bathroom in the airport, where he “[h]ad 

another bout of diarrhea” and took time to clean himself.

Wells claimed he then drove home from the airport to 

change the tire. He testified that he found a nail embedded 

in the tire, which he pulled out and “[t]ossed . . . over into 

the crick.” But Wells then realized that “I shouldn’t do that 

because now I won’t find the hole,” so he claimed he 

reinserted a different nail in the tire. After this, Wells 

drove to COMMSTA. Wells testified that he wore his 

soiled pants that day and the following day, in an attempt to 

explain why the investigators did not find the pants when 

they searched his house. Wells also said that he had not 

disclosed the bathroom incident during the interviews 

because “[i]t was very personal and embarrassing.”

In its closing argument, the government emphasized 

that Wells’s new account did not align with what he told 

investigators when interviewed on April 12 and 13, 2012. 

The government also argued that in his interviews with 
UNITED STATES V. WELLS 13

investigators, Wells was evasive, gave explanations that did 

not add up, and demonstrated an awareness of his own 

guilt.

On October 8, 2019, the jury returned guilty verdicts on 

all counts. The district court sentenced Wells to life in 

prison and ordered him to pay $1,921,640 in restitution. 

Wells timely appealed his conviction and restitution order.

In a separate memorandum disposition filed 

concurrently with this opinion, we reject various of Wells’s 

challenges to his convictions. Here, we address the 

remaining issues. We have jurisdiction under 18 U.S.C. 

§ 3742 and 28 U.S.C. § 1291. We review the district 

court’s legal conclusions de novo and its factual 

determinations for clear error. See United States v. 

Gregory, 322 F.3d 1157, 1160–61 (9th Cir. 2003).

II

We first address whether Wells’s statements to 

investigators in the April 2012 interviews were obtained in 

violation of the Fifth Amendment.

A

The Fifth Amendment guarantees that “[n]o person . . . 

shall be compelled in any criminal case to be a witness 

against himself.” U.S. Const. amend. V. Although the 

right against self-incrimination is a quintessential “‘trial 

right of criminal defendants,’” its protection has been 

extended to “bar[] the government from engaging in certain 

pretrial conduct.” Chavez v. Robinson, 12 F.4th 978, 985 

(9th Cir. 2021) (quoting United States v. VerdugoUrquidez, 494 U.S. 259, 264 (1990)). Relevant here, the 

Fifth Amendment prohibits the government from 
14 UNITED STATES V. WELLS

“compelling a person to make incriminating statements 

(absent a grant of immunity) or punishing a person who 

refuses to make such statements.” Id.

Normally, if a person “desires the protection of the 

privilege, he must claim it or he will not be considered to 

have been ‘compelled’ within the meaning of the 

Amendment.” Minnesota v. Murphy, 465 U.S. 420, 427 

(1984) (quoting United States v. Monia, 317 U.S. 424, 427 

(1943)). But the Supreme Court has recognized certain 

exceptions “to the general rule that the Fifth Amendment 

privilege is not self-executing.” Id. at 434. The most 

notable involves custodial interrogations. See Miranda v. 

Arizona, 384 U.S. 436 (1966); see also Roberts v. United 

States, 445 U.S. 552, 560 (1980) (“Miranda’s requirement 

of specific warnings creates a limited exception to the rule 

that the privilege must be claimed . . . .”).

A different exception is at issue here: the Supreme 

Court has held that the constitutional protection against 

self-incrimination also applies when a government 

employer coerces an employee to give up his right against 

self-incrimination on threat of loss of employment. 

Garrity, 385 U.S. at 496, 500. As we have explained, 

“public employees cannot be compelled to choose between 

providing unprotected incriminating testimony or losing 

their jobs.” Aguilera v. Baca, 510 F.3d 1161, 1171 (9th 

Cir. 2007). Such coerced testimony generally cannot be 

introduced in subsequent criminal proceedings against the 

employee. Garrity, 385 U.S. at 500.

This exception turns not merely on whether the 

government “compelled an individual to appear and 

testify,” but on whether it “also sought to induce him to 

forgo the Fifth Amendment privilege by threatening to 
UNITED STATES V. WELLS 15

impose economic or other sanctions ‘capable of forcing the 

self-incrimination which the Amendment forbids.’” 

Murphy, 465 U.S. at 434 (quoting Lefkowitz v. 

Cunningham, 431 U.S. 801, 806 (1977)). For this reason, if 

proper immunity is provided to the witness, the government 

may require that incriminating questions be answered. See 

Chavez, 12 F.4th at 987. 

The Fifth Amendment also does not apply to 

“voluntary” statements, or in situations when “a person 

does not invoke the privilege against self-incrimination and 

any pressure to make incriminating statements does not rise 

to the level of compulsion.” Id. Indeed, we have 

confirmed that public employers retain the right “to 

appropriately question an employee about matters relating 

to the employee’s possible misconduct while on duty,” and 

that such questioning, on its own, does not trigger the Fifth 

Amendment or require application of the exclusionary rule. 

Aguilera, 510 F.3d at 1171; see also Gardner v. Broderick,

392 U.S. 273, 278 (1968) (“If appellant, a policeman, had 

refused to answer questions specifically, directly, and 

narrowly relating to the performance of his official duties, 

. . . the privilege against self-incrimination would not have 

been a bar to his dismissal.”). The ultimate test is 

compulsion to be a witness against oneself on pain of 

penalty: “If there is no compulsion . . . then the SelfIncrimination Clause is not implicated.” Chavez, 12 F.4th 

at 987; see also Cunningham, 431 U.S. at 806 (“[T]he 

touchstone of the Fifth Amendment is compulsion . . . .”). 

Compulsion is most obviously present when a public 

employer directly threatens an employee with the loss of a 

job (or a comparable penalty) unless the employee gives 

answers to incriminating questions that could later be used 

against him in a criminal proceeding. These were the facts 
16 UNITED STATES V. WELLS

in Garrity, the seminal case in which the Supreme Court 

extended the Fifth Amendment to the public employment 

context. In that case, New Jersey’s Attorney General

investigated allegations that local police officers were 

fixing traffic tickets. 385 U.S. at 494. Before being 

questioned, each officer was cautioned that “he had the 

privilege to refuse to answer if the disclosure would tend to 

incriminate him” but that “if he refused to answer he would 

be subject to removal from office.” Id. The officers 

answered the questions, and their admissions were used in 

subsequent criminal proceedings against them. Id. at 495.

The Supreme Court held that the Attorney General’s 

conduct violated the Fifth Amendment because the officers 

were “deprived of [the] ‘free choice to admit, to deny, or to 

refuse to answer,’” and, as a result, their statements were 

“infected by the coercion.” Id. at 496–97 (quoting Lisenba 

v. California, 314 U.S. 219, 241 (1941)). It was 

impermissible to put the officers to “[t]he choice . . . 

between self-incrimination or job forfeiture.” Id. at 496.

The Supreme Court cases that followed Garrity

likewise involved direct threats of a penalty or sanction if 

public employees were to invoke their Fifth Amendment 

rights. See Uniformed Sanitation Men Ass’n v. Comm’r of 

Sanitation, 392 U.S. 280, 282 (1968) (employee was told 

that if he “refused to testify with respect to his official 

conduct or that of any other city employee on the grounds 

of self-incrimination, his employment and eligibility for 

other city employment would terminate”); Gardner, 392 

U.S. at 274 (employee was “told that he would be fired if 

he did not sign” a waiver of his Fifth Amendment rights).

Wells was not subjected to direct coercion. The 

investigators never threatened Wells’s job security or 
UNITED STATES V. WELLS 17

suggested in any way that his failure to self-incriminate 

would lead to his firing or any other form of discipline. As 

we noted in Wells’s prior appeal, the April 12 interviews 

were not “aggressive or accusatory,” and Wells was 

“interviewed[] in the same manner as all other COMMSTA 

employees.” Wells I, 719 F. App’x at 589; see also id. at 

590–91 (noting that Wells was “never physically 

restrained,” “pressured to confess to anything,” or “singled 

out or made to feel like a target of the investigation,” and 

that the April 12 interviews were “‘essentially amicable’”). 

Wells himself described his discussions with investigators 

as “just . . . general information gathering” and nothing 

“out of the ordinary.” And by April 13, Wells had received 

Miranda warnings, which explicitly informed him that any 

further cooperation had to be voluntary. Our independent 

review of the record confirms that the investigators did not 

explicitly threaten Wells’s job security if he refused to 

incriminate himself, and Wells does not argue otherwise.

B

Instead, Wells advances a theory of implicit coercion. 

In support of this argument, Wells points to a Coast Guard 

employment manual,1 which provides that “[a]ll civilian 

employees are responsible for . . . [p]roviding full and 

truthful answers during any inquiry or investigation.” In a 

separate provision, the manual lists an employee’s failure 

to “give oral or written statements or testimony or 

cooperate otherwise in connection with any official inquiry, 

investigation, or proceeding” as “offenses” that could 

trigger discipline ranging from “[w]ritten reprimand to 

1 We grant Wells’s request to take judicial notice of the manual.
18 UNITED STATES V. WELLS

removal.” Similar consequences could befall an employee 

who “fail[s] to provide honest and complete information to 

investigators or display[s] lack of candor in any official 

inquiry or proceeding; [or] fail[s] to provide material fact 

or pertinent information.” Wells also claims that the letter 

of caution he received after the fuel card incident required 

him to incriminate himself or risk losing his job because the 

letter stated that “any future instances of misconduct may 

result in disciplinary action being taken against you, up to 

and including removal from Federal service.”

Wells alleges that the employment manual and the letter 

of caution, either separately or in combination, operated in 

the background of his interviews to create “an 

impermissible penalty situation.” In his view, these 

documents constituted an “objective showing” that he faced 

potential termination or other sufficiently severe adverse 

employment consequences for failing to answer 

incriminating questions. This, he asserts, “is all that is 

required” to trigger the exclusionary rule.

We have previously recognized the possibility that 

implicit threats in the public employment context may 

produce unconstitutional coercion in violation of the Fifth 

Amendment. Our leading case in this area is Aguilera v. 

Baca, 510 F.3d 1161 (9th Cir. 2007). There, a police 

department investigated a complaint of excessive force 

against its officers. Id. at 1165. Like Wells, the deputies in 

Aguilera operated under certain employment policies that 

required truthfulness in internal investigations. Id. The 

police department’s Manual of Policies and Procedures 

established “an affirmative duty to cooperate” during 

investigations, a violation of which could “subject a deputy 

to administrative discipline.” Id.
UNITED STATES V. WELLS 19

During an internal investigation into police misconduct, 

the deputies refused to provide statements to an 

investigator. Id. at 1166. While the investigation 

continued, the deputies were reassigned to different roles 

and shifts, but no charges were brought, and the deputies 

were eventually restored to their former roles. Id. at 1166–

67. Later, the deputies sued under 42 U.S.C. § 1983 

alleging, as relevant here, that the investigation violated the 

deputies’ Fifth Amendment rights by putting them to an 

unconstitutional choice between providing statements that 

could later be used against them or temporarily losing their 

preferred job responsibilities. Id. at 1171.

We held that the police department did not run afoul of 

Garrity. Id. at 1171. The investigator’s questioning of the 

deputies did not violate the Fifth Amendment because “the 

deputies were not compelled to answer the investigator’s 

questions or to waive their immunity from selfincrimination. Indeed, it appears that the deputies were 

never even asked to waive their immunity.” Id. at 1172. 

We agreed that “there may have been some initial coercion 

to cooperate and answer questions.” Id. at 1172 n.5. But 

that was not tantamount to “compelling the officers to 

waive their Fifth Amendment rights.” Id.

C

Although the reasoning and result in Aguilera point 

against Wells, Aguilera did not articulate a full legal 

framework for determining when an employer policy or 

other background condition of employment produces Fifth 
20 UNITED STATES V. WELLS

Amendment coercion.2 Other circuits have broached the 

question, however, and we find their decisions informative.

In United States v. Smith, 821 F.3d 1293 (11th Cir. 

2016), for instance, a lieutenant at a state prison was 

internally investigated in connection with an incident that 

resulted in an inmate’s death. Id. at 1296–97. Smith 

prepared a false incident report that absolved him of 

responsibility, and he repeated the fabricated narrative to 

investigators. Id. at 1297–99. The investigators later 

shared Smith’s statements with the FBI. Id. at 1299.

The Eleventh Circuit concluded that Garrity allowed 

the use of Smith’s statements at his criminal trial. The 

court explained that “[i]n the absence of a direct threat of 

termination,” a Garrity violation requires two elements: (1) 

“the officer must have in fact believed the statements to be 

compelled on threat of loss of job,” and (2) “this belief 

must have been objectively reasonable.” Id. at 1302–03 

(quoting United States v. Vangates, 287 F.3d 1315, 1321–

22 (11th Cir. 2002)).

In Smith, both elements were lacking. First, the court 

concluded that Smith had “failed to present any evidence” 

2 Wells argues that Aguilera is inapposite because in that case, the Fifth 

Amendment claim was brought by the officers in civil proceedings 

under § 1983. But Aguilera resolved the deputies’ claims on the first 

prong of the qualified immunity analysis, namely, whether there had 

been a violation of the officers’ constitutional rights. See Aguilera, 510 

F.3d at 1171–72. Wells also points out that in Aguilera, the officers’ 

statements were not used in subsequent criminal proceedings. But we 

offered that as an alternate ground for decision, making clear that the

officers’ claims would fail regardless for lack of coercion. Id. at 1173–

74. 
UNITED STATES V. WELLS 21

demonstrating a subjective belief that he would lose his job 

if he failed to provide self-incriminating information. Id. at 

1303. On the contrary, “Smith’s motive to make the 

written statements more than likely was to deflect suspicion 

and avoid jail rather than a desire to retain his 

employment.” Id. (alterations and quotations omitted). 

And secondly, while the prison’s regulations required 

Smith to write an incident report and cooperate with the 

investigation on pain of “progressive disciplinary 

sanctions,” the regulations did not threaten termination, and 

“the mere possibility of future discipline [was] not enough 

to trigger Garrity protection.” Id. at 1302. In the Eleventh 

Circuit’s view, “Garrity does not stand for the proposition” 

that a statement is coerced whenever there is a “speculative 

possibility of termination” if the public employee refuses to 

answer incriminating questions. Id. at 1303 (quotations 

omitted); see also United States v. Waldon, 363 F.3d 1103, 

1112–13 (11th Cir. 2004) (per curiam) (applying the 

subjective-objective test in affirming the denial of a motion 

to suppress because the regulations in question “reflect only 

a general expectation that police officers will cooperate and 

testify”).

The test used by the Eleventh Circuit originated in 

United States v. Friedrick, 842 F.2d 382 (D.C. Cir. 1988). 

See Vangates, 287 F.3d at 1322 & n.7 (adopting the test set 

forth in Friedrick). Friedrick involved an FBI agent who 

was interviewed numerous times over the course of several 

months as part of an internal investigation. Friedrick, 842 

F.2d at 384–87. Before the first interviews, Friedrick was 

promised he would be immune from criminal prosecution 

based on his statements. Id. at 385–87. On appeal, he 

argued that these guarantees implicitly extended to the later 

interviews, as well. Id. at 393–94.
22 UNITED STATES V. WELLS

The court concluded that for the Fifth Amendment to 

apply under Garrity, “Friedrick must have in fact believed 

his January statements to be compelled on threat of loss of 

job and this belief must have been objectively reasonable.” 

Id. at 395. Applying this test—and noting that Friedrick 

had expressly stated during the interview that he thought 

his statements were immune—the court concluded that 

Garrity prohibited the introduction of Friedrick’s 

statements in subsequent criminal proceedings. Id. at 397–

401.

We find further support for this subjective-objective 

approach in United States v. Palmquist, 712 F.3d 640 (1st 

Cir. 2013). In that case, a government employee had filed a 

fraudulent claim for disability benefits with the Veterans 

Administration. Id. at 642–43. An agency investigator 

interviewed him concerning this claim. Id. at 644. Before 

the interview, the investigator informed Palmquist of his 

rights, and Palmquist agreed to cooperate. Id.

Palmquist nonetheless later claimed that he had been 

implicitly coerced by the Veterans Administration 

Standards of Conduct, which provided that “[e]mployees 

will furnish information and testify freely and honestly in 

cases respecting employment and disciplinary matters,” and 

that refusal to testify “may be ground for disciplinary 

action.” Id. at 645–46. The Standard of Conduct went on 

to clarify that employees need not provide incriminating 

testimony. Id.

The First Circuit rejected Palmquist’s argument. Id. at 

646. Although the court did not set forth an allencompassing framework for Fifth Amendment claims in 

the government employment context, the court relied on 

both subjective and objective considerations in its analysis. 
UNITED STATES V. WELLS 23

The court explained that Palmquist had no reason to believe 

that he would be terminated for refusing to self-incriminate: 

the Standard of Conduct was “not inherently coercive,” and 

“there [wa]s no indication Palmquist was aware of the 

regulation at all, let alone that he was selectively presented 

with the coercive portion of the regulation.” Id. at 645–46.

The court also clarified that, to the extent that 

Palmquist’s silence gave rise to “potentially unfavorable 

inferences” that could in turn lead to an adverse 

employment action, this chain of events was “too 

conditional” to constitute coercion under Garrity. Id. at 

645, 647; see also United States v. Stein, 233 F.3d 6, 16 

(1st Cir. 2000) (distinguishing between “the threat of 

automatic loss of one[’s] livelihood and the threat of an 

inference that might lead to such a loss”).

The reasoning in Palmquist aligned with earlier First 

Circuit case law establishing that absent an objectively 

coercive threat, “the subjective fears of [a] defendant as to 

what might happen if he refused to answer” cannot trigger 

Garrity’s exclusionary rule. United States v. Indorato, 628 

F.2d 711, 716 (1st Cir. 1980). In Indorato, there was “no 

overt threat that defendant would be dismissed if he refused 

to answer the questions asked.” Id. at 715. Instead, the 

defendant claimed “such threat was implied because the 

state police departmental rules . . . provided for the 

dismissal of any officer who refused to obey the lawful 

order of superiors.” Id. The First Circuit rejected this 

argument because “[t]here is nothing in the record to 

suggest that the rules have been interpreted to mean that a 

state police officer who refuses on [F]ifth [A]mendment 

grounds to comply with an order to provide selfincriminating statements would be dismissed.” Id. at 716.
24 UNITED STATES V. WELLS

D

It is apparent that the courts that have addressed 

Garrity’s application to government employment policies 

(or similar background rules alleged to create implicit 

coercion in the public employment context) have coalesced 

around a similar framework. Under this framework, courts 

consider both the public employee’s subjective belief and 

the objective reasonableness of that belief to determine 

whether the employee’s statements were improperly 

coerced.

We too conclude that in the absence of a direct threat of 

loss of employment, this framework is appropriate for 

assessing whether government employment policies violate 

the rule in Garrity. The core of the Fifth Amendment is the 

protection against coerced self-incriminating testimony. 

And for an employee to be coerced, he must both be 

objectively threatened with a substantial adverse 

employment consequence for refusing to incriminate 

himself and be subjectively aware of that penalty. 

Although assessment of these objective and subjective 

elements will turn on the facts of each case, it is only when 

both elements are satisfied that the employee is denied the 

“free choice to admit, to deny, or to refuse to answer” 

incriminating questions, and thus entitled to suppression of 

his statements absent a grant of immunity. See Garrity, 

385 U.S. at 496 (quotation marks omitted).

Wells resists this framework, urging us to consider only 

whether the Coast Guard policies on their face violate 

Garrity. Wells argues that our decision in United States v. 

Saechao, 418 F.3d 1073 (9th Cir. 2005), controls and sets 

forth a purely objective test—one that does not consider 

whether the employee in fact believed he could lose his job 
UNITED STATES V. WELLS 25

if he refused to waive his Fifth Amendment rights. That is 

not correct.

As a threshold matter, Saechao involved an allegedly 

coercive probation condition, not a policy of government 

employment. See id. at 1075. It is true that in both 

contexts, courts have applied the same high-level principle 

that “a State may not impose substantial penalties because a 

witness elects to exercise his Fifth Amendment right.” 

Murphy, 465 U.S. at 434 (citing Cunningham, 431 U.S. at 

805). But we have never suggested that in assessing 

allegations of implicit coercion, government employees and 

individuals on probation are identically situated. For 

example, it may be easier to infer an individual’s 

familiarity with his conditions of probation, given that his 

probation officer must instruct him as to the court’s 

specified probation conditions and must “provide him with 

a written statement clearly setting forth all such 

conditions.” 18 U.S.C. § 3603(1). In many cases, 

moreover, the consequences for violating a probation 

condition—which can be dire—will be more apparent to an 

individual on probation than in an analogous situation in 

the employment context. Perhaps most fundamentally, 

“[p]robation, like incarceration, is a form of criminal 

sanction imposed by a court.” United States v. Knights, 

534 U.S. 112, 119 (2001) (quotation marks omitted). 

Individuals on probation “do not enjoy the absolute liberty 

to which every citizen is entitled.” Id. This fact is indeed 

“[i]nherent in the very nature of probation.” Id. As a 

general matter, that context likely creates different 

assumptions and expectations about probation conditions, 

as compared to conditions of employment.

Tellingly, we did not even mention Saechao in 

Aguilera. Saechao found it significant that the probationer 
26 UNITED STATES V. WELLS

was required to “answer all reasonable inquiries,” 418 F.3d 

at 1078. In Aguilera, by contrast, we expressly recognized 

there may have been “some initial coercion to cooperate 

and answer questions,” but we held that this initial coercion 

was not equivalent to “compelling the officers to waive 

their Fifth Amendment rights” when “the deputies were

never even asked to waive their immunity.” 510 F.3d at 

1172 & n.5. Given that it arose in the public employment 

context, the more applicable precedent is Aguilera.

In any event, Saechao actually supports our conclusion 

that employees must demonstrate both a subjective belief of 

an improper penalty and the objective reasonableness of 

that belief. In Saechao, the probationer met with his intake 

officer “to review the conditions of his probation,” 

including the condition that required him to “promptly and 

truthfully answer all reasonable inquiries” under threat of 

“arrest, revocation of probation, or modification of 

conditions.” 418 F.3d at 1075. He also signed a form 

acknowledging these conditions. Id. We specifically noted 

that the probationer “was instructed on two occasions” as to 

his probation conditions. Id. at 1081.

There was thus no question in Saechao as to the 

probationer’s subjective awareness of the probation 

conditions. And we did not suggest in Saechao that an 

employee’s subjective beliefs (which, we note, could be 

demonstrated through circumstantial evidence) are 

irrelevant in assessing Fifth Amendment claims under 

Garrity. We therefore reject Wells’s contention that 

Saechao requires a purely objective test when evaluating 

Garrity claims based on public employer policies.
UNITED STATES V. WELLS 27

E

With the proper framework established, we now turn to 

Wells’s Garrity claim. We conclude that the district court 

did not err in admitting Wells’s statements from the April 

2012 interviews.

The evidence in the record does not suggest that Wells 

subjectively believed that either the Coast Guard Manual or 

the letter of caution regarding the fuel card required him “to 

answer the investigator’s questions or to waive [his] 

immunity from self-incrimination.” Aguilera, 510 F.3d at 

1172. Wells never expressed this belief, either during the 

interviews or when he testified in his own defense at trial. 

And there is no basis by which to infer such a subjective 

belief, either.

To the contrary, the interview transcripts reveal Wells’s

affirmative intent to cooperate with the investigation in an 

apparent effort to make it seem that he had nothing to hide. 

See Smith, 821 F.3d at 1303 (similar). At one point, Wells 

went so far as to say that if the killer were found, he would 

consider “tak[ing] matters into [his] own hands” because it 

was “like somebody, you know, hurt one of your family 

members.” At another point, Wells offered that the 

murders may have been part of a robbery gone bad, 

emphasizing that the rigger shop contained “lots of stuff in 

there worth stealing” and that theft had happened in the 

past.

Except at the end of the last interview, when Wells 

invoked his Miranda rights, the interviews were friendly 

and non-confrontational. As the district court noted, 

“[t]hroughout the six interviews, Mr. Wells never 

expressed concern that his employment would be affected 
28 UNITED STATES V. WELLS

if he did not participate, even when he and the investigators 

discussed his long service with the Coast Guard.” And 

when Wells was told that a particular inquiry was 

voluntary—such as the search of his vehicle, the search of 

his phone, or his participation in the April 13 interviews—

he readily agreed to it. Wells also sometimes volunteered 

information that went beyond the scope of the questions 

asked.

Eventually, Wells invoked his Miranda rights and 

terminated the final interview. Although Wells notes that 

ending the last interview was not necessarily incompatible 

with a belief that he would face adverse employment 

consequences as a result, it does tend to suggest that Wells 

knew he was entitled to draw a line. And there is no 

indication Wells drew that line based on any perceived 

threat of losing his job. Indeed, earlier in the April 13 

interviews, Wells had no difficulty expressing his 

unwillingness to answer questions about his own 

disciplinary issues at COMMSTA, a topic integrally related 

to his employment.

In addition, although Wells testified about receiving the 

letter of caution, there is no evidence that he was aware of 

the Coast Guard employment manual. See, e.g., Palmquist, 

712 F.3d at 646 (rejecting Garrity claim when “there is no 

indication Palmquist was aware of the regulation at all, let 

alone that he was selectively presented with the” allegedly 

problematic portion). Wells did not testify that he had read 

the manual. As the district court found, “Mr. Wells has not 

submitted any evidence that he reviewed or was otherwise 

familiar with this manual or any applicable Coast Guard 

regulation.”
UNITED STATES V. WELLS 29

Having concluded that Wells did not establish a 

subjective belief that he was required to answer the 

investigators’ questions or suffer an employment 

consequence, we need not consider whether, if Wells had 

held such a belief, it would have been objectively 

reasonable. In short, Wells was not implicitly coerced to 

provide his interview statements, and the Fifth Amendment 

did not prevent the introduction of his statements at trial. 

The district court correctly denied Wells’s motion to 

suppress.3

III

We next address Wells’s challenge to his restitution 

order. The district court ordered Wells to pay $1,921,640 

in restitution pursuant to the Mandatory Victims Restitution 

Act (MVRA). The court further determined that restitution 

should be paid using 80% of the monthly payments from 

Wells’s Thrift Savings Plan, military retirement benefits, 

civil service retirement benefits, and disability benefits 

payments.

Wells argues that the district court erred in ordering 

80% garnishment of these monthly funds. Wells points out 

that the MVRA incorporates provisions of the Consumer 

3 Wells also urges us to order the suppression of his statements to 

investigators using our supposed “supervisory powers” over federal 

employees. Effectively, Wells asks that we create a “nonconstitutional” rule of practice that would govern federal government 

investigations, requiring a “Garrity waiver” before any statements by 

government employees can be introduced at trial. Even assuming we 

have the power to create such a rule, which is hardly clear, we would 

decline to do so for the reasons already given.
30 UNITED STATES V. WELLS

Credit Protection Act (CCPA), which limits “the maximum 

part of the aggregate disposable earnings of an individual 

for any workweek which is subjected to garnishment” to 

“25 per centum of his disposable earnings for that week.” 

15 U.S.C. § 1673; see 18 U.S.C. § 3613(a)(3) (“[T]he 

provisions of section 303 of the Consumer Credit 

Protection Act (15 U.S.C. 1673) shall apply to enforcement 

of the judgment. . . .”). Wells claims that his retirement 

and disability benefits constitute “earnings” for purposes of 

15 U.S.C. § 1673, and that these funds thus cannot be 

garnished more than 25%.

The district court acknowledged the “complex” 

“interface between the MVRA and federal consumer 

protection laws.” But the court declined to decide how the 

CCPA might apply to Wells’s benefits payments because 

the court concluded that regardless, it had discretion under 

the All Writs Act to order garnishment of a higher 

percentage of Wells’s monthly payments.

Although a few other district courts have relied on the 

All Writs Act in similar situations, see United States v. 

Greco, 2013 WL 101931, at *2 (N.D. Ohio Jan. 8, 2013); 

United States v. Cunningham, 866 F. Supp. 2d 1050, 1062 

(S.D. Iowa 2012), we find that approach mistaken, and the 

government does not defend it. The All Writs Act provides 

that federal courts “may issue all writs necessary or 

appropriate in aid of their respective jurisdictions and 

agreeable to the usages and principles of law.” 28 U.S.C. 

§ 1651(a). The Act “codifies the courts’ inherent authority 

to ‘fashion appropriate modes of procedure’ necessary to 

the exercise of the judicial function.” Perez v. Barr, 957 

F.3d 958, 967 (9th Cir. 2020) (quoting Harris v. Nelson, 

394 U.S. 286, 299 (1969)). But because the Act does not 

enlarge a court’s jurisdiction, “‘[w]hen a statute specifically 
UNITED STATES V. WELLS 31

addresses the particular issue at hand, it is that authority, 

and not the All Writs Act, that is controlling.’” Id. (quoting 

Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 

43 (1985)); see also Shoop v. Twyford, 142 S. Ct. 2037, 

2044 (2022) (“We have made clear that a petitioner cannot 

use that Act to circumvent statutory requirements or 

otherwise binding procedural rules.”). Because the MVRA 

creates specific statutory requirements for garnishing 

earnings, the All Writs Act cannot be used to sidestep those 

requirements.4

Thus, the district court was required to determine 

whether each of Wells’s benefit payment streams 

constituted “earnings” under 15 U.S.C. § 1673. See also 15 

U.S.C. § 1672(a) (defining “earnings” as “compensation 

paid or payable for personal services, whether denominated 

as wages, salary, commission, bonus, or otherwise, and 

includ[ing] periodic payments pursuant to a pension or 

retirement program”). If so, the MVRA limited 

garnishment of those funds to 25%. Because the district 

court has not yet considered these questions, and because 

some of the facts underlying the different benefit payments 

are unclear, we remand for the district court to consider 

these issues in the first instance.

4 Wells also argues that the restitution order violated the Fifth and Sixth 

Amendments because it was based on facts not found by a jury. Our 

precedent forecloses this argument. See United States v. Alvarez, 835 

F.3d 1180, 1185 (9th Cir. 2016). Our precedent likewise forecloses 

Wells’s argument that the restitution order violated his Seventh 

Amendment right to a jury trial. See United States v. Stanfill El, 714 

F.3d 1150, 1154 (9th Cir. 2013). 
32 UNITED STATES V. WELLS

* * *

For these reasons and those set forth in our 

accompanying memorandum disposition, we affirm Wells’s 

convictions but vacate his restitution order and remand for 

further proceedings on that issue only.

AFFIRMED in part; VACATED and REMANDED 

in part.