The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS OR EXCLUDE EVIDENCE
Pending before the court is defendant John David Looking Elk's motion to suppress statements provided to a tribal law enforcement officer on May 16, 2010. (Docket 49). Mr. Looking Elk challenges the admission of the statements on the following grounds: (1) law enforcement violated the Fifth Amendment by subjecting him to custodial interrogation without providing Miranda*fn1 warnings; (2) the government failed to timely comply with its discovery obligations under Fed. R. Crim. P. 16 and should be sanctioned; and (3) the government's late disclosure of the statements violated his right to a fair trial under the due process clause of the Fifth Amendment. (Dockets 49, 50, &56). The government resists Mr. Looking Elk's motion in its entirety. (Docket55). The court held an evidentiary hearing on the motion on February 23, 2011. Both parties filed simultaneous briefs on February 28, 2011. (Dockets 55 & 56). Therefore, Mr. Looking Elk's motion is ripe for adjudication.
FACTS AND PROCEDURAL HISTORY
As noted, the court held an evidentiary hearing on Mr. Looking Elk's motion on February 23, 2011. Mr. Looking Elk appeared in person and by his counsel, Assistant Federal Public Defender Gary Colbath, Jr. The government appeared by Assistant United States Attorneys Sarah Collins and Robert Mandel. Four witnesses testified at the hearing: Officer Jessie Black Elk, a law enforcement officer with the Oglala Sioux Tribe Department of Public Safety; Special Agent Sherry Rice of the Federal Bureau of Investigation ("FBI"); Assistant United States Attorney Mark Vargo; and Assistant United States Attorney Sarah Collins. From the evidence presented at the hearing, the court adduces the following facts. The court also takes judicial notice of the record in this case.
On May 16, 2010, at approximately midnight, Officer Black Elk and Officer Clayton Ten Fingers*fn2 were traveling together*fn3 in a patrol vehicle to the scene of an incident when they came upon a vehicle in a ditch. (ST 3:14-20).*fn4
The officers called dispatch to report the accident. (ST 3:20). Dispatch informed them a call about the wreck had just come in. (ST 3:21-22). May 16, 2010, was Officer Black Elk's first day of employment as a tribal law enforcement officer. (ST 3:3-13).
Officers Black Elk and Ten Fingers were the first officers to arrive at the scene.*fn5 (ST 4:5-7). Officer Black Elk exited the patrol unit and approached the vehicle in the ditch. (ST 4:8-11). She saw a dead man lying on the ground. (ST 4:11-12, 21-24). Officer Black Elk identified the individual as Antoine Running Bear. (ST 4:18-20). Officer Black Elk shut off the vehicle's engine and returned to the patrol unit to advise Officer Ten Fingers of the situation. (ST 4:13-16). Officer Ten Fingers notified dispatch of Mr. Running Bear's death. (ST 4:15-17).
Approximately five minutes later, two individuals arrived at the scene together--Mr. Looking Elk and Matt Wilson.*fn6 (ST 4:25; 5:1-16). Both individuals were running, and Mr. Looking Elk was out of breath and crying hysterically. (ST 5:17-20). Mr. Looking Elk was on a cell phone, but he terminated the call when asked to do so by Officer Black Elk. (ST 6:2-10). Officer Black Elk began to question Mr. Looking Elk, asking him several times "what was going on, but he just kept shaking his head toward [her]." (ST 5:20-22). Mr. Looking Elk stated he was sorry. (ST 13:2). Officer Black Elk asked Mr. Looking Elk why he was sorry. (ST 13:2-3). Mr. Looking Elk stated approximately three times "he had hurt his friend[.]" (ST 6:15-18; 13:2-3).
Although Officer Black Elk inquired, Mr. Looking Elk never identified the friend. (ST 6:16-17). Officer Black Elk asked Mr. Looking Elk "who was driving with him or who was driving in the vehicle with him[,]" but Mr. Looking Elk was unable to respond. (ST 6:18-20; 13:15-20). Officer Black Elk then asked Mr. Looking Elk if he was the driver, to which Mr. Looking Elk responded by shaking his head "yes" and then shaking his head "no." (ST 6:20-22).
Mr. Looking Elk repeated the gestures each time Officer Black Elk asked if he was the driver. (ST 6:22-23). When questioning Mr. Looking Elk, Officer Black Elk did not have her weapon drawn or make any threats or promises. (ST 7:4-15).
Officer Black Elk also spoke with Mr. Wilson. (ST 5:23). Mr. Looking Elk had gone to Mr. Wilson's residence to use the phone and told Mr. Wilson he had been in a "wreck just across the road." (ST 5:24-25; 6:1).
Mr. Looking Elk attempted to approach Mr. Running Bear's body and began to drop to his knees. (ST 6:24-25; 7:1; 13:20-23). Officer Black Elk held him to prevent him from doing so and assisted him to his feet by supporting him underneath one arm. (ST 7:16-20; 8:5, 12-15; 13:24-25; 14:1). During this time, Mr. Looking Elk indicated he could not breathe and was experiencing pain in his chest. (ST 8:2-3). In response to Mr. Looking Elk's increasing hysteria, Officer Black Elk informed Mr. Looking Elk of her intention to place him in the back of the patrol unit to allow him to calm down. (ST 6:23; 7:2-3, 23-25). Officer Black Elk advised Mr. Looking Elk medics were on the way and placed him in the back seat of the patrol unit. (ST 8:5-7). Officer Black Elk did so because she was unaware if Mr. Looking Elk sustained internal injuries. (ST 8:6-8).
Officer Black Elk did not restrain Mr. Looking Elk with handcuffs. (ST 8:16-18). The rear door of the patrol vehicle remained open, allowing Mr. Looking Elk to sit sideways, presumably with his feet on the pavement. (ST 8:19-25; 9:1). The patrol unit had a cage separating the front and back seats. (ST 8:22-24). Officer Black Elk never drew her weapon or made any threats or promises. (ST 9:2-5). Officer Black Elk never observed any officer placing Mr. Looking Elk in handcuffs. (ST 9:6-9). At no time did Officer Black Elk administer Miranda warnings to Mr. Looking Elk or observe another officer doing so. (ST 23:10-14).
Officer Black Elk again questioned Mr. Looking Elk when he was seated in the back of the patrol unit. (ST 9:10-12). She asked Mr. Looking Elk several times whether he was driving the vehicle at the time of the accident. (ST 9:13-14). Mr. Looking Elk kept shaking his head in the affirmative, then in the negative. (ST 9:14-23). Mr. Looking Elk was hysterical and crying at this time. (ST 9:12-13). The medics arrived, and Officer Black Elk reported Mr. Looking Elk's complaints of shortness of breath and chest pain. (ST 16:22-25). Officer Black Elk had no further contact with Mr. Looking Elk after turning him over to the care of the medics. (ST 20:2-7). Officer Black Elk was not present during the medics' interaction with Mr. Looking Elk and did not hear or see Mr. Looking Elk make any additional comments or gestures. (ST 17:1-11). The medics transported Mr. Looking Elk to the hospital via an ambulance.*fn7 (ST 17:5-7).
From her initial contact with Mr. Looking Elk, Officer Black Elk knew Mr. Looking Elk had been drinking as she smelled alcohol on his breath. (ST 13:7-14). Once Officer Black Elk determined the accident involved a fatality and Mr. Looking Elk had been drinking, Mr. Looking Elk was not free to leave the scene except to obtain medical treatment. (ST 15:4-23).
That evening, Officer Black Elk related her conversation and interaction with Mr. Looking Elk to Officer Ten Fingers. (ST 23:23-25; 24: 1-6). New to the department, Officer Black Elk did not prepare an incident report because her supervisor turned the case over to Officer Ten Fingers and asked Officer Ten Fingers to prepare the report.*fn8 (ST 17:17-21; 21:3-7).
On September 21, 2010, the government indicted Mr. Looking Elk on one count of involuntary manslaughter, a violation of 18 U.S.C. §§ 1112 and 1153. (Docket 1). The indictment alleged, on or about May 16, 2010, Mr. Looking Elk unlawfully killed Mr. Running Bear by operating a vehicle while under the influence of alcohol and by driving in an unsafe manner. In anticipation of trial, the parties entered into three stipulations: (1) the offense occurred in Indian country and Mr. Looking Elk is an Indian person; (2) on May 16, 2010, Mr. Looking Elk had a blood alcohol content of 0.132% by weight, Mr. Running Bear had a blood alcohol content of 0.361% by weight, and Mr. Catches, who may have been in the vehicle at the time of the accident, had a blood alcohol content of 0.183% by weight; and (3) Mr. Running Bear died as a result of multiple blunt-force trauma. (Docket 26, pp. 4-6). The only factual dispute is whether Mr. Looking Elk caused Mr. Running Bear's death, that is, whether Mr. Looking Elk was driving the vehicle at the time of the accident.
The court entered its standing order on September 27, 2010. (Docket 11). In relevant part, the standing order required the government to comply with requests for discovery under Fed. R. Civ. P. 16(a) and to furnish all Brady,*fn9 Giglio,*fn10 and Jenks Act*fn11 materials to Mr. Looking Elk. Id. at ¶¶ 5-8.
After granting a continuance at the request of Mr. Looking Elk, the court eventually set the pretrial conference for February 18, 2011, and the commencement of trial for February 22, 2011. (Docket 15).
On or about February 10, 2011, as part of the government's trial preparation, Agent Rice contacted Officer Black Elk to discuss her compliance with the trial subpoena. (ST 29:2-3; 30:3-7). This telephone conversation was the first and only time Agent Rice and Officer Black Elk were in contact about this case. (ST 24:7-12; 25:19-23). During the conversation, Officer Black Elk discussed her contact with Mr. Looking Elk at the scene of the accident. (ST 30:8-12). Officer Black Elk stated she asked Mr. Looking Elk if he was driving the vehicle at the time of the accident. (ST 25:1-3; 30:13-13-15). Officer Black Elk stated Mr. Looking Elk shook his head in the affirmative, then in the negative and kept repeating " 'I'm sorry, I'm sorry,' and didn't give any direct answer to whether or not he was driving."*fn12 (ST 25:4-11; 30:16-21). Officer Black Elk also stated she prepared a report documenting her contact with Mr. Looking Elk--a report which Agent Rice was unaware of and did not possess. (ST 29:6-8, 12-13; 32:10-11). Agent Rice told Officer Black Elk to contact Ms. Collins immediately. (ST 29:18-21).
After ending her conversation with Officer Black Elk, Agent Rice immediately contacted AUSA Collins. (ST 29:11-13). Agent Rice understood the government might use Mr. Looking Elk's statements as evidence in the case. (ST 30:22-25; 31:1-2). Agent Rice knew the primary dispute in the case was over who was driving the vehicle at the time of the accident. (ST 31:10-15). In her conversation with AUSA Collins, Agent Rice stated Officer Black Elk "had good recall of that evening, apparently because it was her first night of work." (ST 32:8-10). Agent Rice stated Officer Black Elk had prepared a report of the incident. (ST 32:10-11). Agent Rice sought guidance on whether she should prepare a 302 report documenting her conversation with Officer Black Elk or whether the government would rely on Officer Black Elk's report. (ST 32:12-15). It was Agent Rice's understanding from speaking with Ms. Collins that the government would rely on Officer Black Elk's report. (ST 32:15-16). Thus, Agent Rice did not prepare a report. (ST 33:16-22). Finally, Agent Rice testified she informed AUSA Collins that Officer Black Elk had some contact with Mr. Looking Elk, but did not go into great ...