REPORT AND RECOMMENDATION FOR DISPOSITION OF MOTION TO SUPPRESS STATEMENT
MARK A. MORENO, Magistrate Judge.
Richard Peneaux, an adult, was suspected of having sex with a young teenage girl, five years younger than him, in his apartment on the Rosebud Indian Reservation. Federal and tribal agents interviewed him, while he was in jail, and he made statements which he now seeks to suppress. Because the statements were lawfully obtained, the Court recommends that Peneaux's suppression motion be denied.
FACTUAL AND PROCEDURAL BACKGROUND
On August 12, 2013, Ben Estes, a special agent with the Rosebud Sioux Tribal police department, was notified that K.Y.E., at 14-year-old girl, had possibly been sexually assaulted. Peneaux, who was 19 at the time, was believed to have committed the assault. He had been arrested, on two tribal warrants, earlier in the day and was being housed at the Rosebud Sioux Tribe Detention Center. Agent Estes contacted FBI Special Agent Chris Cressy, and the two met with and interviewed Peneaux that same evening in the Detention Center.
After being Mirandized and agreeing to talk to agents, Peneaux admitted that he knew K.Y.E., but insisted that she was just a "friend". Later in the interview, he acknowledged that he and she "were together" and had been "going out" for about a month in May-June 2013, but was resolute that they did not engage in any kind of sexual contact. About an hour into the interview, he confessed that he had consensual sexual intercourse with K.Y.E. on three separate occasions, twice in Valentine, Nebraska two months or so ago, and once in Mission, South Dakota on August 12.
The next month, Peneaux was indicted by a federal grand jury and charged with sexual abuse of a minor. Following his arraignment, he moved to suppress his August 12 statements to Agents Cressy and Estes claiming that they were solicited without a proper advisement and waiver of his Miranda rights.
The Government filed a response to the motion, resisting Peneaux's claims. A hearing was held on November 7, 2013, at which both agents testified and two exhibits were received into evidence. Peneaux is scheduled to stand trial in January, 2014.
A. Miranda Advisement
Peneaux claims that he was not properly advised of his rights. Although he does not elaborate on this claim, it is assumed that he contends that the Miranda advisement given to him was deficient. The audio recording of the interview though indicates otherwise.
In Miranda v. Arizona  the United States Supreme Court established certain procedural safeguards that require police to advise a criminal suspect of his rights under the Fifth Amendment before commencing custodial interrogation. There, the Supreme Court said that the suspect must be told that "he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires." The Court in Miranda "presumed that interrogation in certain custodial circumstances is inherently coercive and... that some statements made under those circumstances are inadmissible unless the suspect is specifically warned of his Miranda rights and freely decides to forego those rights."
The Supreme Court has never insisted that Miranda warnings be given in the exact form described by the Miranda decision. In the decision itself, the Court said that "[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a [suspect]." The Court later observed that "the rigidity' of Miranda [does not] extend[ ] to the precise formulation of the warnings given a criminal [suspect], " and that "no talismanic incantation [is] required to satisfy its strictures."
Here, Agent Cressy read out loud to Peneaux - almost verbatim - his Miranda rights from an advice of rights form. He also gave Peneaux the opportunity to read the form to himself. Peneaux looked at the form and ultimately signed the consent portion of the same, acknowledging that he had read and understood what his rights were. The evidence presented unequivocally shows that ...