United States District Court, D. South Dakota, Central Division
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
AND DENYING MOTION TO SUPPRESS
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Government charged Jason Corey Poorman with aggravated sexual
abuse of a child, in violation of 18 U.S.C. §§
1153, 2241(c), and 2246(2). Doc. 1. Poorman moved to suppress
statements he made to an investigator during an interview
prior to the indictment. Doc. 27. After holding an
evidentiary hearing, Magistrate Judge Mark A. Moreno issued a
Report and Recommendation, recommending that Poorman's
motion be denied. Doc. 42. Poorman has filed timely
objections to that recommendation. Doc. 46. This Court has
conducted a de novo review of the record, and for the reasons
explained below, overrules Poorman's objections and
adopts Judge Moreno's Report and Recommendation.
11, 2014, Mark Fendrich, a special agent with the Federal
Bureau of Investigation, conducted an interview with Poorman.
Tr. at 5-6. The interview took place in Agent
Fendrich's government vehicle, located outside a
residence in Spring Creek, on the Rosebud Indian Reservation
in South Dakota. Tr. at 7. Before the interview, Agent
Fendrich knew some of Poorman's criminal history, and
some information about his background, in addition to
information about the allegations of sexual assault made
against him. Tr. at 7. Agent Fendrich approached Poorman,
identified himself as an FBI agent, and asked Poorman to
speak with him inside his vehicle. Tr. at 8.
beginning of the interview, Agent Fendrich identified
himself, and told Poorman that he did not have to talk with
him if he did not want, that the doors to the vehicle were
unlocked, that he was free to leave at any time, and that he
"won't be arrested after the interview or
anything." Ex. 1 at 0:40. Agent Fendrich then explained why
he wanted to speak with Poorman, telling Poorman that there
had been an allegation of "inappropriate touching that
occurred on a bed" made by K.S., the child of one of
Poorman's ex-girlfriends, when Poorman was living with
her. Ex. 1 at 4:45. After an almost ten second pause, Poorman
responded that it was "not possible." Ex. 1 at
5:22. Throughout the interview, Poorman repeatedly and
consistently responded "no" to questions about the
allegations, that he "wouldn't do that, " that
there'd be "no reason why I'd do that, "
and that he just "can't remember" because of
how long it had been since he had lived with K.S.'s
mother. Ex. 1 at 7:45, 8:33, 12:10, 13:56, 15:06, 15:40,
16:19, 18:00, 18:15, 18:40, 24:45, 25:45, 26:10, 26:45,
30:28, 32:50, 33:35, 38:02, 38:15, 41:30, 42:50, 45:05.
However, Poorman also stated that "maybe it did happen,
" and "maybe it did, it's been so long."
Ex. 1 at 18:00, 41:30. In response to questioning by Agent
Fendrich, at first Poorman stated that K.S. never laid down
in his bed, Ex. 1 at 5:38, and then that there would be times
when K.S. slept there, but only when her mom was also there,
Ex. 1 at 16:45, 40:10. Poorman also eventually admitted that
he was drinking during this time period, but would always
leave the house when he got so drunk he blacked out. Ex. 1 at
26:10. Poorman specifically said that "I ain't
admitting nothing." Ex. 1 at 26:55.
the interview, Agent Fendrich told Poorman that, although he
could not promise, in his experience, it would look better
for Poorman down the road if he admitted the truth, rather
than denying it, and "if you did it, admit it, "
because it would be a one-time accident. Ex. 1 at 27:10,
29:20, 32:30. Agent Fendrich told Poorman that "you look
like something's weighing pretty heavy on ya, " Ex.
1 at 31:25, and there are a number of very long silences
during the interview. When Poorman asked "are they
tryna' throw me back in prison?, " Agent Fendrich
responded that he wasn't "the judge or jury or
anything, " and that "no, I'm not saying it
will" go to court, Ex. 1 at 22:40, but explained that if
Poorman were to fail a voluntary polygraph test, Agent
Fendrich would be back to ask more questions, Ex. 1 at 24:00.
Agent Fendrich added that he wasn't "going to sit
here and lie to you" in saying "that it's not
very likely" Poorman would go back to prison if he
admitted the allegations. Ex. 1 at 32:10. Agent Fendrich told
Poorman at the end of the interview that he would write up a
report and give it to the U.S. Attorney's office, Ex. 1
at 45:30. Poorman stated that he understood if he admitted to
the allegation, he would go back to prison, and that he did
not want that to happen. Ex. 1 at 32:05, 35:40, 39:57.
Fendrich testified that at all times his service weapon and
identification badge were covered and concealed, that both
Poorman and Agent Fendrich held a conversational tone of
voice throughout the interview, and that there was no major
change in Poorman's emotion or demeanor during the
interview. Tr. at 10-11. During the interview, Poorman spoke
of dealing with a lot of family stress, and after this
allegation, "I got more stress to worry about now."
Ex. 1 at 34:00, 36:50. Agent Fendrich also testified mat
Poorman did not appear to be under the influence of alcohol
or drugs during the interview, and did not appear to suffer
from any intellectual or physical impairments. Tr. at 30, 32.
The interview lasted just over forty-six minutes. Ex. 1.
was not arrested at the end of the interview, but a grand
jury indicted him on November 9, 2016, on charges of
aggravated sexual abuse of a child for an alleged incident
that occurred between March 19, 2004 and May 6, 2005. Doc. 1.
On January 23, 2017, Poorman filed a motion to suppress
statements he made to Agent Fendrich, arguing that his will
was overborne because of misconduct by Agent Fendrich, and
therefore the statements made during the interview were not
voluntary, in violation of the Fifth Amendment. Docs. 27, 28.
Poorman alleged that Agent Fendrich made several false
implied promises of leniency and engaged in deception,
including telling Poorman that he would not be arrested
following the interview, failing to disclose that Poorman was
being investigated for federal criminal charges, failing to
give a complete answer when Poorman asked whether the
investigation would be going to court, and telling Poorman
that if he admits to the alleged crime, it looks better and
will be easier in the long run. Doc. 28 at 3. Judge Moreno
held an evidentiary hearing, during which Agent Fendrich
testified and audio of the interview was received into
evidence. Docs. 37, 40. Judge Moreno then issued a Report and
Recommendation, recommending that Poorman's motion to
suppress statements be denied. Doc. 42. Poorman filed an
objection to the Report and Recommendation, arguing that
Agent Fendrich's statements and tactics created a
coercive environment that led to the involuntary making of
incriminating statements. Doc. 46.
Court reviews a report and recommendation pursuant to the
statutory standards found in 28 U.S.C. § 636(b)(1),
which provides 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). In
particular, a district court can "accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge." Id. Poorman
argues that his statements to Agent Fendrich were the product
of misconduct by Agent Fendrich in the form of several false
implied promises of leniency and deception that overbore his
will and caused Poorman to make involuntary statements. Doc.
28 at 3. Having conducted a de novo review, this Court adopts
the Report and Recommendation.
Fifth Amendment privilege against self-incrimination
precludes the use of incriminating statements made by
defendants if those statements were involuntary as a result
of an overborne will and critical impairment of
self-determination because of "threats, violence, or
direct or implied promises" made by police. United
States v. Kilgore. 58 F.3d 350, 353 (8th Cir. 1995);
see also Miranda v. Arizona. 384 U.S. 436, 467
(1966); Schneckloth v. Bustamonte. 412 U.S. 218,
226-27 (1973); United States v. LeBrun. 363 F.3d
715, 724 (8th Cir. 2004) (en banc). In determining whether a
statement was involuntary, both the conduct of the police and
the personal characteristics of the defendant must be
considered. See Sheets v. Butera. 389 F.3d
772, 779 (8th Cir. 2004) ("We consider, among other
things, the degree of police coercion, the length of the
interrogation, its location, its continuity, and the
defendant's maturity, education, physical condition, and
mental condition."); LeBrun. 363 F.3d at 724;
United States v. Pierce. 152 F.3d 808, 812 (8th Cir.
1998); Jenner v. Smith. 982 F.2d 329, 334 (8th Cir.
1993) (holding that tactics used by the police in an
interrogation are "highly relevant, " but that a
defendant "must still prove that her incriminating
statements were the product of an overborne will"). In
determining whether the defendant's will was overborne
and his capacity for self-determination critically impaired,
the "totality of the circumstances surrounding the
interrogation" is considered. Simmons v.
Bowersox. 235 F.3d 1124, 1133 (8th Cir. 2001).
asserts that it was the Agent's implied promises of
leniency and false promises that in part made his statements
involuntary. Doc. 28 at 3. The Eighth Circuit has established
that while "a promise made by law enforcement is a
relevant consideration in assessing police conduct, it is
only one circumstance to be considered and does not render a
confession involuntary per se." Bowersox, 235
F.3d at 1133. In this case, however, Agent Fendrich
repeatedly stated that he could not promise Poorman anything,
only that in his experience, it looks better when an
individual admits to a crime, rather than continually denying
it. Ex. 1 at 29:20, 32:30. Poorman claims there was a second
implied promise of leniency when Agent Fendrich responded
that "I'm not saying it will, " when Poorman
asked if the allegations were going to court. Doc. 28 at 3.
In Bowersox, the Court determined that a law
enforcement officer's statement that it was in the
defendant's best interest to tell the truth was too vague
to be an implied promise of leniency. 235 F.3d at 1133;
see also Bannister v. Armontrout, 4 F.3d 1432, 1440
(8th Cir. 1993) (comments that it would be in the
defendant's best interest to cooperate did not make
defendant's statements involuntary). Poorman also points
to the Agent's statement at the beginning of the
interview that he "wouldn't be arrested or anything,
" as a false promise. Doc. 28 at 3. In Kilgore,
the Eighth Circuit distinguished between a promise that an
accused would never go to jail, and a promise that he would
not go to jail that very evening, finding the latter not an
issue, and even the former "alone would not make [the]
confession involuntary." 58 F.3d at 353. Agent Fendrich
said that he could not make any promises, and at another
point of the interview agreed with Poorman that admitting the
allegations would result in Poorman returning to jail. Ex. 1
at 32:10. While Poorman was not told specifically that he was
being investigated for potential federal sexual assault
charges, Agent Fendrich told Poorman in great detail about
K.S.'s allegations. Ex. 1 at 7:10. During the interview,
Poorman seemed completely aware of the consequences of
admitting to the sexual assault, noting that he would go back
to jail, and did not admit to touching K.S. inappropriately,
even accidentally, despite the Agent's questions. Ex. 1
at 26:55, 27:10, 32:05. Furthermore, Poorman was not
immediately arrested after the interview; a period of over a
year passed before he was indicted. See Doc. 1.
considering whether a statement made was voluntary, this
Court also must consider the defendant's personal
characteristics, including his "maturity, education,
physical condition, and mental condition."
Sheets. 389 F.3d at 779; LeBrun. 363 F.3d
at 724. At the time of the interview, Poorman was
thirty-eight years old,  and was familiar with law enforcement
as he had previously been convicted of a sexual crime and
served time in jail. Ex. 1 at 9:00. Poorman stated he had not
been drinking on the day of the interview, and Agent Fendrich
testified that he did not appear to be under the influence of
any alcohol or drugs. Tr. at 30. Although Poorman stated that
he had family stress going on in his life, Ex. 1 at 34:00,
and was feeling more stress after these allegations, Ex. 1 at
36:50, Agent Fendrich testified that although Poorman seemed
anxious at times, it was not to the level where Agent
Fendrich felt he needed to end the interview, and thought it
was because "he was trying to think through a situation
that we were talking about that was very serious." Tr.
at 10. Poorman's personal characteristics do not suggest
that he was unduly impressionable to coercive agent
questioning. LeBrun, 363 F.3d at 726;
Bowersox. 235 F.3d at 1133-34; Pi ...