Summary
In Red Bird, the District Court also found that Percy, cited in Charley, was not represented by counsel at his tribal arraignment, that tribal law did not require that counsel be appointed for him at this proceeding and that he did not retain private counsel.
Summary of this case from U.S. v. KilleaneyOpinion
CR. 2001-30047
July 5, 2001
Jay P. Miller, U.S. Attorney's Office, Pierre, SD, for Plaintiff.
Edward G. Albright, Feferal Public Defender's Office, Pierre, SD, for Defendant.
ORDER
[¶ 1] The defendant, Andrew Red Bird ("Red Bird"), filed a motion (Doc. 18) to suppress statements allegedly made jointly by Red Bird to an agent of the Federal Bureau of Investigation and a criminal investigator for the Rosebud Sioux Tribe; the motion raises a Sixth Amendment issue and a voluntariness issue. The same motion seeks to suppress six buccal swabs and DNA evidence derived therefrom on a claim of "fruits of the poisonous tree." US Magistrate Judge Moreno, after conducting an evidentiary hearing, filed and served a report and recommendation (Doc. 32) for disposition of Red Bird's motion. The Court has conducted a de novo review of the transcript of the evidentiary hearing (Doc. 28), the statements made by Judge Moreno and counsel for both parties in open court (Doc. 28), and all the files and records herein, including all the briefs and responses filed. Red Bird filed and served objections (Doc. 38) to the recommendations of the magistrate and the objections have been considered. The government filed and served objections (Doc. 52) to the magistrate's report and recommendations and such objections have also been considered. Defendant served and filed a response (Doc. 54) to the government's objections. The government, knowing this case had been set for trial with jury selection to begin on June 26, 2001, knowing that the Court was scheduled for various appearances at the annual meeting of the State Bar of South Dakota commencing on June 20, waited until the afternoon of June 20 (which it clearly had the legal right to do) to file objections to the report and recommendation issued by the magistrate on June 8. Red Bird had filed his objections on June 12. The government also filed on June 20 a motion for a continuance of the trial date (Doc. 53) and the defendant and his attorney have given notice of their objections to any such continuance. The defendant has been in custody awaiting trial. The Court had no choice but to grant the government's motion for a continuance.
[¶ 2] Red Bird was charged by way of written complaint on September 11, 2000, and was arrested on a tribal charge of rape. He appeared in tribal court for his arraignment, was represented by an attorney from the tribal public defenders' office, was formally advised of his rights, entered a plea of not guilty, and was released on bond. That attorney has continued to represent Red Bird in tribal court at all times material.
[¶ 3] FBI Agent D. Joseph Weir ("Weir") and tribal investigator Grace Her Many Horses ("Her Many Horses") on November 28, 2000, sought out and approached Red Bird to question him about the alleged rape. It is undisputed that both the federal government and the tribe, two sovereigns, were cooperating in the investigation and charging of the defendant. The two sovereigns "worked in tandem" in connection with these charges. Red Bird told the agents that his lawyer had told him not to make a statement. He also told the agents that he had "nothing to hide." He also told them he would "make one statement and one statement only" and that Weir "would not get any more out of him." Despite this, the FBI recitation in the FBI form 302 as to the statements allegedly made by Red Bird covers seven pages. Although not in custody, Red Bird was given the Miranda warnings and signed a form to waive such rights. Her Many Horses knew that Red Bird was at that time represented by counsel and that he had appeared in tribal court on the same charge, forcible rape by penetration. Weir equivocated on the matter of his knowledge of the pending tribal charge and the fact that Red Bird was represented by counsel. He testified that he did not believe he had such knowledge but that he "didn't recall for certain." Despite this testimony, Weir had earlier reported in his 302 that Red Bird told him about instructions given to Red Bird by Red Bird's attorney. The magistrate was in error in finding that agent Weir "does not believe that he was apprised of" the defendant's tribal charge and the fact that the defendant had tribal counsel representing him; the objection of the defendant in that regard should be sustained. It flies in the face of all common sense to believe that Her Many Horses and Weir were acting in concert looking for Red Bird to interview and that the two of them had not discussed the facts before interviewing Red Bird. They were traveling in the same vehicle to locate and approach Red Bird and then to follow him in one vehicle to conduct the interview at his home. It also makes no sense since both Weir and Her Many Horses had engaged previously in the same conduct that occurred here which conduct had been severely criticized by this court in United States v. Swift Hawk, 2000 DSD 52, 125 F. Supp.2d 384. The conduct of Weir and Her Many Horses in that earlier case had been described as "very troubling" and in violation of the Sixth Amendment rights of Swift Hawk. Both Weir and Her Many Horses would or should have had knowledge of such published opinion. I do not believe that agent Weir did not know the facts as to Red Bird. I believe he did know them and I reject his equivocal testimony. Regardless, the knowledge of Her Many Horses, acting in tandem and in concert with Weir, would be attributable to Weir.
[¶ 4] Weir and Her Many Horses, after excluding Red Bird's wife and their children, despite the wife's request to be present, took a statement from Red Bird without his attorney being present or even advised. This conduct is very troubling, as I observed in Swift Hawk. As I did in Swift Hawk, this Court takes judicial notice that, in civil cases, investigators and especially attorneys do not question a person they know to be represented by counsel without the attorney's consent and knowledge. Having practiced law for thirty years, primarily as a trial attorney representing a large number of insureds of insurance companies as well as plaintiffs, I know that all reputable insurance companies and adjusters in the United States have adopted this policy and have reduced it to writing. This is common knowledge among practicing attorneys and judges. It would be highly unethical for any attorney to talk to or even attempt to talk with another party whom the attorney knows is represented by counsel. It is simply not "fair play" to "go around" the attorney, even when the represented party agrees to talk without the presence of his attorney. Having said all this, I recognize that no Sixth Amendment right of the defendant can be based upon standards of the American Bar Association, including ABA Ann. Model Rule of Professional Conduct 4.2 (4th ed. 1999), as explained by Chief Justice Rehnquist in Texas v. Cobb, ___ U.S. ___, 121 SCt 1335, 1342(footnote 2) 149 L.Ed.2d 321 (2001).
[¶ 5] Red Bird, unlike Swift Hawk, was told that he had the right to have an attorney present when he was being questioned. No permission to interview Red Bird was sought or received from the attorney known by Weir and Her Many Horses to be representing Red Bird. They knew or should have known the actual name and address of the attorney since the same attorney appears on a daily basis to represent each defendant in Rosebud Tribal Court. In this part of the world, everyone knows the business of others and there are few secrets. This is certainly true on the Rosebud Sioux Indian Reservation.
[¶ 6] The Sixth Amendment requires the suppression of any confession "which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel." Massiah v. United States, 377 U.S. 201, 206, 84 SCt 1199, 1202, 12 L.Ed.2d 246 (1964). In relying on Massiah, the United States Supreme Court has held that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." Michigan v. Jackson, 475 U.S. 625, 636, 106 SCt 1404, 1411, 89 L.Ed.2d 631 (1986). Under the teaching of Massiah and Jackson, there is no doubt that the Sixth Amendment right to counsel attaches as to the government when a defendant is arraigned in federal or state court. The question here presented is whether it also attached under the circumstances here present when Red Bird was arraigned in the Rosebud Tribal Court.
[¶ 7] There is, as a general proposition, no Sixth Amendment right to counsel in Indian Country as to tribal court matters. Such right is guaranteed by the Indian Civil Rights Act ("ICRA") (but only at the expense of the defendant). Congress, in adopting the ICRA, obviously made the decision that Native Americans would not necessarily be entitled to the same protections extended to every other American, namely the right to counsel in criminal cases in tribal courts, appointed at public expense, if necessary. In the absence of tribal funds being used, federal funds would have been required to accomplish that. The Tribal Constitution of the Rosebud Sioux Tribe guarantees certain rights to any Indian accused of a crime in that tribal court and this includes the right to be represented by an attorney. See Amendment XI as attached to the report and recommendation. The Rosebud Sioux Tribe, obviously determined to protect the rights of indigent Rosebud tribal members, had and has a public defenders' office to provide legal representation at the expense of the tribe. In that sense, the Rosebud Sioux Tribe is unusual in providing an attorney admitted to practice. Most tribes within the jurisdiction of the United States District Court for the District of South Dakota, Central and Northern Divisions, do not provide this right. Defendants in these other tribal courts are "represented" by an "advocate", a non-lawyer, and the Court takes judicial notice of that.
[¶ 8] There is almost no case law on the ICRA. The parties discuss US v. Percy, 250 F.3d 720 (9th Cir. 2001), a case decided after Texas v. Cobb, supra. Percy was interrogated by a federal agent after he had appeared in tribal court to be arraigned. Percy was not represented by counsel in tribal court. That tribal law did not require the appointment of counsel and Percy had not retained private counsel. Percy did not reach the question whether the Sixth Amendment right to counsel had attached and relied on Patterson v. Illinois, 487 U.S. 285 (1988). "In the present case, Percy had not retained counsel, nor did he indicate that he wanted the assistance of counsel. In such circumstances, Patterson holds that Percy could knowingly and intelligently waive his Sixth Amendment right to counsel. Id at 290-93, 108 SCt 2389 . . ." Percy at 726. The facts in the present case are entirely different when compared with the facts in Percy.
[¶ 9] The parties also discuss US v. Doherty, 126 F.3d 769 (6th Cir. 1997). Doherty was described in Texas v. Cobb, supra, as having been one of the cases from lower courts which erroneously read into the offense-specific definition in McNeil v. Wisconsin, 501 U.S. 171 (1991), an exception for crimes that are "factually related" to a charged offense. Nevertheless, the Court feels that some discussion of Doherty is warranted since Doherty dealt with a charge in tribal court followed by another charge in federal court. Doherty had made his first appearance in tribal court but the tribal court arraignment had been continued to allow time for him to employ an attorney. He had not actually spoken with any attorney and the record did not reflect whether his mother had actually obtained an attorney when he was interviewed by the FBI He, unlike Red Bird, had no "tribal right" to an attorney, whether appointed at public expense or not. Doherty was in custody and, before being interviewed, was given the standard "advice of rights form" to read and sign, this constituting the well known Miranda warnings. He read and signed the form. The FBI agent also explained to Doherty that, while he had no right to counsel in the tribal court, he had the right to have a lawyer appointed for him at government expense for the purposes of the interview. Doherty signed a waiver form indicating that he elected voluntarily to proceed with the interview. "Agent Kleinpaste informed Doherty at the beginning of the interview that he had the right to have an appointed attorney present during the interview, and asked him whether he had an attorney in the tribal court. Doherty responded that he did not, but that his mother was going to retain one. Agent Kleinpaste testified that Doherty understood that, while he did not have the right to an appointed attorney in tribal court, he did have such a right for the purposes of the interview." Doherty at 773.
[¶ 10] This Court respectfully disagrees with the statements in Doherty that tribal court proceedings are informal and not adversarial and that Congress did not wish to impose on such systems "an exclusionary rule that presumes the existence of an adversarial method of trying criminal cases." Doherty at 780. I have no information as to how a tribal court serving a total tribal membership of 300 people works in the upper peninsular of Michigan. I do have knowledge how tribal courts dealing with thousands of Native Americans work in South Dakota. In particular, I have knowledge and take judicial notice as to how the tribal court in Rosebud works. I am also aware that federal courts are obligated to extend respect and act with principles of comity toward tribal courts. I decline to jump to the assumptions or conclusions advanced in Doherty that tribal courts, and by extension the tribal court on the Rosebud, operate as something of a family gathering and counseling session. The description of the tribal court in Doherty sounds, very frankly, like a description of "teen courts" now in vogue in various high schools. That is not the way the Rosebud Sioux Tribal Court works in South Dakota and it is clear that, at least in the present case, criminal adversarial judicial proceedings had been initiated. Red Bird, unlike Doherty, had more than "the mere existence of a statutory right to counsel . . ." Doherty at 782. I also believe that the Doherty reliance on comparing tribal court proceedings to extradition proceedings is misplaced since "`an extradition hearing has a modest function not involving the question of guilt or innocence.' Judd v. Vose, 813 F.2d 494, 497 (lust Cir. 1987)." Extradition proceedings are not akin to prosecutions in tribal courts in South Dakota, especially in Rosebud, and there is no evidence to even suggest that. Nor is there any evidence or argument to suggest that tribal court criminal prosecutions in South Dakota and particularly in Rosebud are not adversary proceedings. They are "adversary judicial criminal proceedings" as that phrase was used in United States v. Gouveia, 467 U.S. 180, 188, 104 SCt 2292, 2296, 81 L.Ed.2d 146 (1984). They are certainly adversarial in the eyes of the Rosebud Sioux Tribe or a public defender's office would not have been established and funded. While sentences resulting from tribal court convictions are not counted in computing the criminal history of a defendant who is later to be sentenced in federal court, they may be considered under USS.G. § 4A1.3 (adequacy of criminal history category). See USS.G. § 4A1.2 (i). The government sometimes argues for an upward departure based upon a defendant's previous convictions or even charges pending in tribal court. Such convictions are certainly matters to be considered by the sentencing judge. See USS.G. § 1B1.4 under which the judge "may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See 18 U.S.C. § 3661."
[¶ 11] Without reference to the ICRA, the question is whether the Massiah exclusionary rule is triggered by a tribal constitution guaranteeing the right to counsel, the existence of a tribal public defender's program to provide counsel for indigents at tribal expense, and by the fact that Red Bird had actually been arraigned in a criminal adversarial proceeding in tribal court and had a lawyer appointed and acting for him, all before he was questioned in the absence of his attorney. I believe the answer, at least as to defendants who have appeared in tribal court in Rosebud, is in the affirmative.
[¶ 12] As Magistrate Moreno observed, the plain language of the Sixth Amendment prohibits the government from infringing upon a defendant's right to counsel "in all criminal prosecutions." I agree with his opinion that the "framer's use of the word `all' is intended to include federal, state and tribal prosecutions." In the absence of Eighth Circuit precedent or United States Supreme Court precedent to the contrary, that same conclusion reached in Swift Hawk is the controlling precedent in this Court.
[¶ 13] The Sixth Amendment does not apply of its own force to Indian tribes dealing with tribal legislation. Talton v. Mayes, 163 U.S. 376, 16 SCt 986, 41 L.Ed. 196 (1896) (although dealing with the question of whether cases in tribal court could be prosecuted without an indictment by a grand jury). It is clear as well that there is no Fourteenth Amendment for Indian tribes. They did not participate in the Constitutional Convention and did not "sign on" by joining the federal union. We deal here, however, with the federal government prosecuting a Native American under federal laws, namely 18 U.S.C. § 1153 and 2246(2)(A), (B) and (C). ". . . Indians like other citizens are embraced within our Nation's `great solicitude that its citizens be protected . . . from unwarranted intrusions on their personal liberty.' Oliphant, 435 US, at 210." Duro v. Reina, 495 U.S. 676, 692, 110 SCt 2053, 2063, 109 L.Ed.2d 693 (1990), abrogation on other grounds based upon legislation amending the ICRA recognized in Mousseaux v. US Com'r of Indian Affairs, 806 F. Supp. 1433 (DSD 1992).
[¶ 14] As already discussed, Red Bird was charged by way of written complaint and arrested on a tribal charge of rape, a charge which has identical essential elements when compared with the later federal charges filed. The federal indictment does include four different types and charges of forcible rape by penetration but whatever sexual activity occurred between Red Bird and the alleged victim on September 10, 2000, is the basis for charges in both courts. They are more than "inextricably intertwined." They are identical. The United States Supreme Court held in McNeil v. Wisconsin, that the Sixth Amendment right to counsel is offense specific. 501 U.S. 171, 175, 111 SCt 2204, 2207, 115 L.Ed.2d 158 (1991). The government argues that the charged offense in tribal court and the matter that Agent Weir was investigating are not the same because the elements differ somewhat between the tribal court charge and the federal indictment. The government relies upon the United States Supreme Court's opinion in Texas v. Cobb, supra. The issue in Texas v. Cobb was the definition of the term "offense" in the context of McNeil. The majority in Texas v. Cobb announced that the Sixth Amendment right to counsel encompasses "offenses that, even if not formally charged, would be considered the same offense under the Blockburger test." Texas v. Cobb, ___ U.S. at ___, 121 SCt at 1343. The United States Supreme Court held in Blockburger v. United States that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." 284 U.S. 299, 304, 52 SCt 180, 182, 76 L.Ed. 306 (1932). Thus, although Cobb had been charged with burglary (and thus his Sixth Amendment right to counsel had attached), the police were not precluded from the uncounseled interrogation of Cobb about two murders committed in connection with the burglary.
[¶ 15] At first glance, Texas v. Cobb may appear to be quite broad in providing guidance and directions to the lower courts. Indeed, the dissent complained that the majority opinion would significantly diminish the Sixth Amendment's protections.
That is because criminal codes are lengthy and highly detailed, often proliferating "overlapping and related statutory offenses" to the point where prosecutors can easily "spin out a startlingly numerous series of offenses from a single . . . criminal transaction." Ashe v. Swenson, 397 U.S. 436, 445, n. 10, 90 SCt 1189, 25 L.Ed.2d 469 (1970). Thus, an armed robber who reaches across a store counter, grabs the cashier, and demands "your money or your life," may through that single instance of conduct have committed several "offenses," in the majority's sense of the term, including armed robbery, assault, battery, trespass, use of a firearm to commit a felony, and perhaps possession of a firearm by a felon, as well. A person who is using and selling drugs on a single occasion might be guilty of possessing various drugs, conspiring to sell drugs, being under the influence of illegal drugs, possessing drug paraphernalia, possessing a gun in relation to the drug sale, and, depending upon circumstances, violating various gun laws as well. A protester blocking an entrance to a federal building might also be trespassing, failing to disperse, unlawfully assembling, and obstructing Government administration all at one and the same time.
The majority's rule permits law enforcement officials to question those charged with a crime without first approaching counsel, through the simple device of asking questions about any other related crime not actually charged in the indictment. Thus, the police could ask the individual charged with robbery about, say, the assault of the cashier not yet charged, or about any other uncharged offense (unless under Blockburger's definition it counts as the "same crime"), all without notifying counsel. Indeed, the majority's rule would permit law enforcement officials to question anyone charged with any crime in any one of the examples just given about his or her conduct on the single relevant occasion without notifying counsel unless the prosecutor has charged every possible crime arising out of that same brief course of conduct. What Sixth Amendment sense — what common sense — does such a rule make? What is left of the "communicate through counsel" rule? The majority's approach is inconsistent with any common understanding of the scope of counsel's representation. It will undermine the lawyer's role as "medium" between the defendant and the government. Maine v. Moulton, supra, at 176, 106 SCt 477. And it will, on a random basis, remove a significant portion of the protection that this Court has found inherent in the Sixth Amendment.Texas v. Cobb, ___ U.S. at ___, 121 SCt at 1348 (Bryer, J., dissenting). The majority responded to the foregoing prediction by pointing out that "in all but the rarest of cases, the Court's decision today will have no impact whatsoever upon a defendant's ability to protect his Sixth Amendment right," because "defendants retain the ability under Miranda to refuse any police questioning. . . ." Id. at ___, 121 SCt at 1343, n. 2. We must remember, however, that the Supreme Court did not decide whether Cobb had "made a unilateral waiver" of the Sixth Amendment right to counsel. In other words, since Cobb had no Sixth Amendment right he had nothing to waive.
[¶ 16] Texas v. Cobb, although instructive, is not squarely on point. The crimes of burglary and murder are clearly distinct. That is not the case here where the defendant was charged in tribal court with forced sexual penetration and was being investigated by the FBI about the same instance of forced sexual penetration with the same victim at the same location and at the same time. Indeed, the Supreme Court in Texas v. Cobb warned against "inferences from opinions which did not address the question at issue." Texas v. Cobb, ___, U.S. at ___, 121 SCt at 1341. Texas v. Cobb is not to be read as the government here contends. "Although it is clear that the Sixth Amendment right to counsel attaches only to charged offenses, we have recognized in other contexts that the definition of an `offense' is not necessarily limited to the four corners of a charging instrument." Id. at 1343. The fact that the government must prove in an offense of this kind in federal court that the offense occurred in Indian Country and that the defendant is an "Indian" will not destroy the Sixth Amendment right to counsel under the facts of this case. Obviously, prosecuting an offense in tribal court, state court or federal court will always involve slight differences to establish jurisdiction but if the exact nature of the offense remains the same, the Blockburger test is met. The holding in the present case meets the tests of Texas v. Cobb as well as of Blockburger.
[¶ 17] The "Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a `medium' between him and the State." Maine v. Moulton, 474 U.S. 159, 176, 106 SCt 477, 479, 88 L.Ed.2d 481 (1985).
Indeed, after a formal accusation has been made — and a person who had previously been just a "suspect" has become an "accused" within the meaning of the Sixth Amendment — the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation.Michigan v. Jackson, 475 U.S. 625, 632, 106 SCt 1404, 1409, 89 L.Ed.2d 631 (1986). A written waiver is insufficient to justify police-initiated interrogations after the Sixth Amendment right to counsel has attached. Michigan v. Jackson, 475 U.S. at 635, 106 SCt at 1410-11. Any waiver after police-initiated interrogation is invalid once the Sixth Amendment privilege attaches. Id. at 636, 106 SCt at 1411. The fact that Red Bird signed a Miranda waiver is irrelevant under the facts of this case.
[¶ 18] It is difficult to understand why a few law enforcement officers cannot or will not follow proper procedures. Sexual assaults are very serious problems everywhere. They are even more of a problem on Rosebud. The end, however, does not justify the means and it should not be difficult for law enforcement officers to learn what rights American citizens have and to respect those rights. As already stated, Weir and Her Many Horses were the very officers involved in Swift Hawk. They knew very well that they should not repeat their Swift Hawk course of conduct. The prosecutor and the defense attorney are the same in both cases. The prosecutor is "far afield" in arguing that the holding in Swift Hawk dealing with Sixth Amendment rights was dicta. If the United States Attorney's office was so advising law enforcement officers, they were also "far afield." If the prosecutor in this case was in doubt, a clarification should have been sought and none was sought. It is once again highly improper conduct on the part of Weir and Her Many Horses to again attempt an "end run" around an appointed and acting attorney, paying no attention to a previous decision by this Court. Agents of the Federal Bureau of Investigation and federal prosecutors should comply with both the letter and the spirit of the law. The decision in Swift Hawk was and is the law in the Northern and Central Divisions of the District of South Dakota, until and unless overturned by a higher court. The argument that the government in the Northern and Central Divisions of the District of South Dakota should follow the panel decision from the Sixth Circuit rather than Swift Hawk is ludicrous. In addition, the government well knew of the many factual distinctions between Doherty and Swift Hawk. Weir and Her Many Horses also knew full well, from their own personal knowledge as well as from what was set forth in Swift Hawk, how things are entirely different in Rosebud as compared with a tribal court in Michigan serving 300 people.
[¶ 19] Red Bird also seeks to suppress his statements on the claim they were involuntary. The magistrate made no findings in this regard but concluded that defendant's statements were not the product of coercion or otherwise involuntary. The defendant objects to this conclusion. The Court has conducted a de novo review of the record and will make its own findings and conclusions.
[¶ 20] The Fifth Amendment guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." The United States Supreme Court recognized the right to counsel during custodial interrogation as a procedural safeguard to the substantive Fifth Amendment right in Miranda v. Arizona, 384 U.S. 436, 86 SCt 1602, 16 L.Ed.2d 694 (1966). Warren v. City of Lincoln, Neb., 864 F.2d 1436, 1441 (8th Cir. 1989). Miranda concluded that the right to counsel during custodial police interrogation is necessary because such interrogation "contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." 384 U.S. at 467, 86 SCt at 1624. The Supreme Court announced in Edwards v. Arizona that "an accused . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." 451 U.S. 477, 484-85, 101 SCt 1880, 1884-85, 68 L.Ed.2d 378 (1981). Red Bird initiated nothing as to talking with Weir and Her Many Horses.
[¶ 21] Red Bird was not in custody at the time he made incriminating statements to Weir and Her Many Horses. Thus, Miranda and Edwards are not controlling. However, they nonetheless stand for the proposition that, under the Fifth Amendment, an accused may not be compelled to waive his right not to incriminate himself.
[¶ 22] The statements were coerced if one were to believe the testimony of Red Bird. The testimony was that Weir in private told Red Bird before the interview began that, if Red Bird did not talk to them, they would arrest him and take him to jail to talk there. Weir denied this and the magistrate found that the testimony of Weir was more credible than that of Red Bird. Red Bird also told Weir that he had an attorney and was told not to talk to anyone. It is troubling that the agents isolated Red Bird from his wife who desired to be present for the interview. Isolating a criminal suspect from family and friends who desire to be present to lend moral support during the questioning and to possibly deter a suspect from incriminating himself is one factor suggesting coercion. United States v. Griffin, 922 F.2d 1343, 1352 (8th Cir. 1990). This is especially the case when Red Bird's wife could have listened to what was being said and the agent did not tape record or otherwise record the statements, leaving judges again to choose between different versions of what was said and what was not said. At least, in Swift Hawk, Weir did tape record the statement. The magistrate heard the testimony and observed the witnesses. The objections by Red Bird dealing with the issue of a coerced confession should be overruled and the report and recommendation in that regard should be adopted.
[¶ 23] All of the foregoing aside, the Court, at the trial of this matter, would almost certainly not permit the FBI interview and confession or statement to go to the jury. It would in all likelihood be excluded under Fed.R.Evid. § 403. Some portions of it have no relevance. This includes what some other FBI agent allegedly did in some other case. The probative value of the statement would very likely be substantially outweighed by the danger of unfair prejudice, given all that has occurred in this case. It remains to be seen whether Red Bird will testify at trial. If he does, Harris v. New York, 401 U.S. 222, 91 SCt 643, 28 L.Ed.2d 1 (1971), may permit the use of the statement; the Court will answer that question at that time.
[¶ 24] The magistrate would have recommended the suppression of the buccal swabs and DNA findings as "fruits of the poisonous tree" but did not do so since such evidence would have inevitably been discovered by lawful means without reference to the Sixth Amendment violation. He relied on Nix v. Williams, 467 U.S. 431, 444, 104 SCt 2501, 2509, 81 L.Ed.2d 377 (1984), and United States v. Reinholz, 245 F.3d 765, 779 (8th Cir. 2001). This court agrees with the legal analysis of the magistrate. The cases on which he relied provide support for his recommendation. If the government had requested a search warrant for the taking of blood or tissue specimens from Red Bird for the purpose of a DNA analysis, the warrant would have been issued. This evidence should not be suppressed and the objections of Red Bird in that regard should be denied.
[¶ 25] The recommendation and report (with the exception of what agent Weir knew) as to the joint statements to the FBI agent and the tribal investigator should be adopted and the motion to suppress granted. All other objections should be overruled, the motions denied and the report and recommendation accepted. The objections of the government should be denied.
[¶ 26] Now, therefore,
[¶ 27] IT IS ORDERED, as follows:
1) The motion to suppress certain statements (Doc. 18) is granted as to the statements to the FBI agent and the tribal criminal investigator.
2) The motion to suppress six buccal swabs and the DNA evidence derived therefrom (Doc. 18) is denied.
3) The objections of Red Bird (Doc. 38) to the report and recommendation are overruled as to the issue of voluntariness.
4) The objections of the government (Doc. 52) are overruled.
5) The report and recommendation of the magistrate judge (Doc.32) is adopted with the sole exception that the court finds that the report and recommendation is in error in concluding or finding that agent Weir did not know that the defendant had previously appeared at an arraignment in tribal court, that counsel had been appointed for him, and that such attorney was the attorney for the defendant at that time, this court now determining that agent Weir knew all such matters. The objection of Red Bird in that regard (Doc. 38) is sustained.