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United States v. Larrabee

United States District Court, D. South Dakota, Central Division

September 14, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
SYLVAN LARRABEE, Defendant.

          OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING DEFENDANT'S MOTION TO SUPPRESS

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE

         The Government charged Sylvan Larrabee with two counts of sexual abuse of a minor. Doc. 1. Larrabee moved to suppress incriminating statements he made to federal investigators on voluntariness grounds. Doc. 25. After holding an evidentiary hearing, Magistrate Judge Mark A. Moreno issued a Report and Recommendation, recommending that Larrabee's motion be denied in its entirety. Doc. 48 at 8. Larrabee has filed timely objections to that recommendation. Doc. 51. This Court has conducted a de novo review of the record, and for the reasons explained below, overrules Larrabee's objections and adopts Judge Moreno's Report and Recommendation.

         I. Facts

         On August 27, 2015, FBI Special Agents James Asher and Thomas Wilberg met with Larrabee inside their vehicle, for about an hour. Ex. 1. At the conclusion of the interview, Larrabee left the vehicle without being arrested. Tr. at 9-10. The meeting took place within the Cheyenne River Indian Reservation, in an isolated area near Cherry Creek, South Dakota, where Larrabee was living. Tr. at 7, 24. The agents had contacted Larrabee and requested a meeting; at a pre-arranged time, Larrabee arrived on a four-wheeler. Tr. at 24. After Larrabee joined the agents in their vehicle, the agents informed Larrabee that they were investigating the suicide of T.D., a 14-year-old. Ex. 1 at 2:25. Agent Asher advised Larrabee that he was going to "let you know your rights, " and then told Larrabee that he did not have to speak with the agents, that the door to the vehicle was unlocked and Larrabee could leave at any time including after he had started speaking to the agents, and that there was a recorder in the vehicle. Ex. 1 at 1:29-2:00; see also Tr. at 8-9. During these initial minutes, Larrabee said that he had never before been in contact with the FBI. Ex. 1 at 2:20.

         Larrabee began by stating that he had only been in contact with T.D. a few times in the year that he had known her, centered around giving T.D. and her friend matching tattoos, while her boyfriend was present. Ex. 1 at 5:06. Larrabee also said that he first met T.D. when he went to play basketball with T.D.'s boyfriend. Ex. 1 at 10:00. As the interview continued, Larrabee gave more information to the agents about the contacts between himself and T.D. He volunteered that he stopped hanging around with T.D. when her mom slapped him in public, Ex. 1 at 10:40, and that he said "I ain't messing with your daughter or anything, " Ex. 1 at 11:06, but that he thought T.D.'s mom was mad at him because of the tattoo that he gave T.D.

         Approximately 15 minutes into the interview, the agents said that they talked with T.D., that she reported dating Larrabee, and that T.D.'s friends told the agents that T.D. and Larrabee were dating. Ex. 1 at 14:45-15:10. Larrabee then volunteered that T.D. was "after me, " describing her as a "stalker" who was upsetting to his "babymomma." Ex. 1 at 15:39-16:00. Shortly after this conversation, Agent Asher stated that he did not want Larrabee "to get caught up in a lie, 'cause that's the one thing you could get in trouble for.'" Ex. 1 at 19:07. Larrabee was then asked if T.D. had ever spent the night at his grandmother's house, and Larrabee said no. Ex. 1 at 19:13. Larrabee continued to describe T.D. and her personality at the prompting of the agents, but denied that he ever kissed her. Ex. 1 at 19:30-22:30. Agent Asher repeated to Larrabee that "if you did something with [T.D.] it's the past, you just need to let me know and move forward, I'm not gonna go talk to your babymomma, I just don't want you to get caught up in something that's a lie, because you know that's where you get in trouble, " Ex. 1 at 22:58, and "if you get caught up in a lie, that's when it's gonna get bad, " Ex. 1 at 24:00. Agent Asher repeated his understanding that Larrabee didn't want to get caught up in wrongdoing because he had a job and a new child at stake, and just wanted to move on with his life. Ex. 1 at 24:00-24:40. Larrabee's voice started to sound distressed at this point. Ex. 1 at 24:12, 24:41, 25:00. Larrabee then stated that "if you wanna hear what you wanna hear, I'ma say it, " Ex. 1 at 24:42, to which Agent Asher responded that he only wanted the truth, Ex. 1 at 24:49. Larrabee's voice returned to normal, and he stated that the confrontation with T.D.'s mom, mentioned earlier, was actually about T.D.'s mom saying she was taking T.D. to Pierre to "get tested, " and that he was going to face rape charges. Ex. 1 at 25:32. Larrabee wondered how this was possible because he had never been with her. Ex. 1 at 25:37. When Agent Asher asked how he would explain physical evidence of a sexual relationship between T.D. and Larrabee, Larrabee inquired whether the evidence could be from another individual or multiple individuals. Ex. 1 at 25:58-26:15. After Agent Asher asked whether the sex between Larrabee and T.D. was consensual, Larrabee responded "this is how it went down, " Ex. 1 at 27:27, and described the sex that occurred, how he had just "let it happen, " Ex. 1 at 27:35, and that it happened "just two times, " Ex. 1 at 27:56.

         Shortly after this initial admission, a click sound is heard in the audio recording, Ex. 1 at 29:48, and one of the agents says "oops, sorry it's unlocked, " and another click is heard, Ex. 1 at 29:50. The agent then thanked Larrabee for being honest, and Larrabee said he did not say anything previously because he did not want to go to jail on rape charges: "I didn't rape no girl, the girl came to me, " Ex. 1 at 33:00, and she was "all grown up about it, " Ex. 1 at 33:10. Agent Asher testified that at this point, he took Larrabee's statements to mean that Larrabee understood what the interview's intended purpose was. Tr. at 17-18. Larrabee also said that he knew the sexual contact was wrong, because a friend had told him he should stay away from T.D. Ex. 1 at 34:00. Agent Asher asked Larrabee, "You do know why we had to come out here and chat with you?" Ex. 1 at 36:49, to which Larrabee responded he "knew this day was gonna come, " Ex. 1 at 36:52, and that it was because T.D. had said she had been "with me, " Ex. 1 at 37:09.

         Larrabee then described the two incidents of sex with T.D. in detail, in a calm manner. Ex. 1 at 38:45. Larrabee stated that "if anything I should press rape charges on her, " Ex. 1 at 46:40, that "if I was younger I probably would have married her, " Ex. 1 at 48:15, and that he didn't like her, but maybe would have if she was "my age" and "clean, " and "wasn't as ratchet as she was, " Ex. 1 at 51:20. Larrabee then again described the personality of T.D. as not a classy girl, but a "ratchet girl, " and explained the difference. Ex. 1 at 51:50. Towards the end of the interview, Larrabee's voice changed again when he said he "don't want to go to jail for something ... I didn't do, because I didn't like hook up with her, she hooked up with me." Ex. 1 at 54:50. The agent then told Larrabee that "with you being cooperative, it's going to go much smoother." Ex. 1 at 55:20. Larrabee reiterated that he and T.D. were not in a relationship. Ex. 1 at 56:02. The agents thanked Larrabee for his honesty, Ex. 1 at 56:10, asked for a follow-up phone number, Ex. 1 at 54:19, and allowed Larrabee to leave the vehicle without arrest, Ex. 1 at 56:20.

         On March 15, 2016, an Indictment was filed in the United States District Court, District of South Dakota, Central Division, charging Larrabee with two counts of sexual abuse of a minor under 18 U.S.C. §§ 1153, 2243(a), 2246(2)(A). On May 27, 2016, Larrabee filed a motion to suppress his statements made during the interview on the grounds that the statements were involuntary as a result of the improper and deceptive interrogation and implied promises made by the agents that overbore his will. Doc. 26. At the hearing on the motion to suppress, the court took judicial notice of the fact that Larrabee was "23 years old and had a 10th grade education." Tr. at 5. Agent Asher testified at the hearing that during the course of the interview, Larrabee was in the passenger seat of Asher's government vehicle, with Agent Wilberg in the backseat. Tr. at 8. Agent Asher testified that the interview was "friendly in nature" and was not "threatening or loud in any way, " Tr. at 10; that it did not appear that Larrabee had any sort of diminished mental capacity or was under the influence of any substance that could impair him, Tr. at 11-12; that there was no physical contact between the agents and Larrabee, Tr. at 23; and that no weapons were displayed during the interview, Tr. at 23.

         II. Discussion

         This Court reviews a report and recommendation pursuant to the statutory standards found in 28 U.S.C. § 636(b)(1), which provides in relevant part that "[a] judge of the [district] court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Larrabee objects to Judge Moreno's determination that there was no proof of coercion or tactics used by the agents that overbore his will. Doc. 51 at 2. Specifically, Larrabee contends that lies told by the agents to Larrabee regarding the reasons for the interview, their previous interactions with T.D., and repeated statements that Larrabee could only get in trouble for lying to the agents overbore his will. Doc. 51 at 3-4. Having conducted a de novo review, this Court adopts the Report and Recommendation.

         The Fifth Amendment privilege against self-incrimination protects criminal defendants from being compelled by the government to incriminate themselves. Miranda v. Arizona. 384 U.S. 436, 467 (1966). A voluntary statement or confession may be used against a defendant in court, but an involuntary statement or confession may not. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27 (1973). A court must consider the totality of the circumstances, including the conduct of the officers and the characteristics of the defendant, to determine whether a statement is voluntary. United States v. LeBrun. 363 F.3d 715, 724 (8th Cir. 2004) (en banc); United States v. Pierce. 152 F.3d 808, 812 (8th Cir. 1998). A statement is involuntary if made by a defendant whose "will [was] overborne and his capacity for self-determination critically impaired" by "threats, violence, or direct or implied promises." United States v. Kilgore. 58 F.3d 350, 353 (8th Cir. 1995) (internal quotations omitted) (alteration in original). The government has the burden of proving the defendant's statement was voluntary, which must be proven by a preponderance of the evidence. United States v. Anaya. 715 F.Supp.2d 916, 949 (D.S.D. 2010) (citing Missouri v. Seibert. 542 U.S. 600, 608 n.l (2004)). Defense counsel does not allege that Larrabee was in a custodial situation that would necessitate the reading or application of his full Miranda rights.

         Interview tactics utilized by government officers such as "claiming not to believe a suspect's explanations, making false promises, playing on a suspect's emotions, using [the suspect's] respect for his family against him, deceiving the suspect, conveying sympathy, and even using raised voices" do not necessarily "render a confession involuntary." United States v. Brave Heart. 397 F.3d 1035, 1041 (8th Cir. 2005). An implied or asserted promise made by law enforcement before incriminating statements are made is a factor to consider when determining the voluntariness of a statement, but it does not make the statement per se involuntary. See Smith v. Bowersox. 311 F.3d 915, 922 (8th Cir. 2002); United States v. Larry. 126 F.3d 1077, 1079 (8th Cir. 1997) (per curiam); Kilgore. 58 F.3d at 353. Specifically, "[i]t is improper for a police officer to obtain a confession through an express or implied promise of leniency, " but "such a promise will not render the confession involuntary unless it overcomes the defendant's free will and impairs his capacity for self determination." Smith, 311 F.3d at 922.

         The Eighth Circuit noted decades ago in Tippitt v. Lockhart that "[v]arious courts have held that government agents . . . may even be able to make and breach certain promises without rendering a resulting confession involuntary." 859 F.2d 595, 597 (8th Cir. 1988) (confession was voluntary where there was a fulfilled promise of non-prosecution for one crime, but prosecution for another stemming from the confession). In Smith v. Bowersox, the Eighth Circuit determined that when a defendant stated "I'm going to get the chair for this, " and the law enforcement officer responded "No, you're not, because they don't do that in this state, " id, at 917, although it was an implied promise of leniency, when placed into consideration with other factors turning on voluntariness, the state court determination that the confession was voluntary could not be overturned, Id. at 922-23. In United States v. LeBrun, the Eighth Circuit held that after insinuations by law enforcement officers that he would not be prosecuted for murder if it was spontaneous, and the defendant confessed to felony murder under that mistaken belief, the confession was not involuntary when all other aspects of the interrogation were not enough to "demonstrate that the authorities overbore [the defendant's] will and capacity for self-determination." LeBrun, 363 F.3d at 725-26; see also United States v. Thunderhawk, 799 F.3d 1203, 1206 (8th Cir. 2015) (reiterating that the "polestar" in determining the voluntariness of a confession is whether any promise made by law enforcement was enough to overbear the defendant's will). In United States v. Larry, the Eighth Circuit reversed a district court decision that a promise of non-prosecution rendered a ...


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