The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
Defendant Leonard Chase Alone, Jr., filed a motion to suppress statements obtained by law enforcement. (Docket 17). Pursuant to 28 U.S.C. § 636(b)(1)(B) and the court's case management order (Docket 14), Magistrate Judge Veronica L. Duffy held a hearing on this matter and issued a report and recommendation. (Docket 32). The magistrate judge recommended denying the motion to suppress defendant's statement given on March 2, 2011, to FBI Agents Rice and Blackburn. Id. Defendant timely filed objections to the report and recommendation. (Dockets 36). The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
For the reasons stated below, defendant's objections are overruled and the report and recommendation of the magistrate judge is adopted in its entirety.
A. Magistrate Judge's Findings of Fact Defendant does not object to the magistrate judge's findings of fact.
(Docket 36, p. 1). The magistrate judge's findings of fact are adopted by the court in accordance with 28 U.S.C. § 636(b)(1)(C).
B. Magistrate Judge's Conclusions of Law Defendant objects to the magistrate judge's conclusions of law and recommendations relating to the statements obtained from the defendant for the following reasons:
1. His statement to the FBI was not voluntary;
2. Any waiver of his Miranda*fn1 rights was not made in a knowing, voluntary, and intelligent fashion; and
3. His Sixth Amendment right to counsel was violated pursuant to United States v. Red Bird, 287 F.3d 709 (8th Cir. 2002).
(Docket 36). Each of these objections will be addressed separately.
1. STATEMENT TO THE FBI WAS NOT VOLUNTARY
Because the defendant did not object to the magistrate judge's findings of fact, those facts will not be restated and are incorporated by reference. The arguments made by defendant in support of his objections to the magistrate judge's conclusions of law and recommendations are the same arguments made to the magistrate judge before issuance of her report and recommendation. See Dockets 18 and 31.
Because Mr. Chase Alone, Jr., was of "limited intellect" and in tribal court custody for a number of tribal violations, including a charge of sexual abuse which was being investigated by the FBI agents, he argues under the totality of the circumstances the statements given to the FBI agents on March 2, 2011, were involuntary. (Docket 36, p. 2). This argument is premised on his belief the FBI agents gave him "confusing information" regarding the consequences which would occur following any statement he provided. Id.
"In considering whether a confession was voluntary, the determinative question is whether the confession was extracted by threats, violence, or promises (express or implied), such that the defendant's will was overborne and his . . . capacity for self-determination was critically impaired." United States v. Pierce, 152 F.3d 808, 812 (8th Cir. 1998). The court must look to the totality of the circumstances, ...