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United States v. Dunkelberger

November 23, 2010


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Defendant, Terri Dunkelberger, is charged with one count of embezzlement and theft of labor union assets in violation of 29 U.S.C. § 501(c). Dunkelberger moves to suppress a written statement that she signed during an interview with two Department of Labor investigators, Sandra Pons and Dan LaFond. The court referred Dunkelberger's motion to Magistrate Judge John E. Simko pursuant to 28 U.S.C. § 636(b)(1)(B). After holding an evidentiary hearing, Magistrate Judge Simko recommended that this court deny Dunkelberger's motion to suppress. Dunkelberger objects to three of Magistrate Judge Simko's factual and legal findings. The government had no objection to Magistrate Judge Simko's report and recommendation. After a de novo review of the report and recommendation and a review of the record, the court adopts the report and recommendation and denies Dunkelberger's motion to suppress.


Under 28 U.S.C. § 636(b)(1), "when a party objects to the report and recommendation of a magistrate judge concerning a dispositive matter, '[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.' " United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28 U.S.C. § 636(b)(1)); see also Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.").


Dunkelberger served as the financial treasurer of her union, the Amalgamated Transit Union Local 1356 in Sioux Falls, South Dakota. As treasurer, her job duties included maintaining the Union's financial records. In February of 2010, the United States Department of Labor (DOL) received information from the Union that Dunkelberger failed to report how she was spending the Union's money.

Through a subpoena, the DOL requested that Dunkelberger meet with Pons in Minneapolis, Minnesota, on March 5, 2010. Dunkelberger attended this meeting and handed over the Union's financial records as requested in the DOL's subpoena. When the meeting ended, Pons and Dunkelberger agreed to meet again on March 25, 2010, at 2 p.m. in the Union's office in Sioux Falls, South Dakota.

On March 25, 2010, Pons and LaFond, Pons's supervisor, drove to the Union's office in one car. Dunkelberger drove to the office in her own vehicle. The meeting took place in the Union's office, located in the basement of the Temple Union building. The Union also shares this space with the bricklayers' union. The office contained filing cabinets that stored the Union's financial records. During the two- to four-hour meeting, Dunkelberger was not given a Miranda warning and was not told that she could have an attorney present. Pons and LaFond did not record the conversation other than by summarizing the discussion in a written statement that Dunkelberger signed under penalty of perjury at the end of the meeting.

The office door was closed but not locked during the meeting. At various points in the meeting, other people were in the Temple Union building. Pons and LaFond were dressed in business causal attire. They did not carry handguns or handcuffs, nor did they ever claim that they could arrest Dunkelberger. Pons told Dunkelberger that she was free to leave during the meeting.

About thirty minutes into the meeting, Pons and LaFond told Dunkelberger that they believed she had stolen the Union's funds. During the meeting, Pons and LaFond neither yelled at Dunkelberger nor threatened her.

At the end of the conversation, Pons told Dunkelberger that it was their usual practice to type up a written statement and have the interviewee review and sign the statement. Before Pons began typing the statement, Dunkelberger asked to use the restroom. Dunkelberger left the room and went to the restroom. Pons also had to use the restroom. She waited a few moments and then left to use the same restroom as Dunkelberger. When Dunkelberger walked back to the room, Pons walked behind her.

When Dunkelberger and Pons were back in the Union office, Pons began typing the statement on the laptop that she had brought with her. LaFond stepped out of the room during this process to use the phone. While typing the statement, Pons asked Dunkelberger clarifying questions. When Pons finished typing the statement, LaFond returned to the Union office, reviewed the statement, and suggested changes. Pons then read the statement aloud to Dunkelberger. Dunkelberger suggested a few changes, which Pons made. Pons then printed the statement on a portable printer that she had brought with her. The statement was in larger print than Pons usually used and had spacing of one-and-a-half lines because Dunkelberger earlier stated that she has problems seeing well.

Dunkelberger had the statement in front of her for some time and appeared to be reading the statement. Pons gave Dunkelberger a pen and told her to make any necessary changes. Dunkelberger initialed in the space indicated for initials on each page. At the end of the statement, Dunkelberger signed her name on the line indicated and wrote out three handwritten lines.

When Dunkelberger asked what was going to happen next, LaFond told her that he and Pons would prepare a report and that Dunkelberger's signed statement would be given to the United States Attorney's Office. After Dunkelberger signed the statement, Pons and LaFond left in one ...

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