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United States v. Gunville

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

October 11, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DEMI MARIE GUNVILLE, Defendant.

          OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

         Defendant Demi Gunville (Demi) agreed to be a third-party custodian for her brother Dave Gunville (Dave). At Dave's bail review hearing, Demi gave sworn testimony about where she and Dave would live when he was out on bail. Shortly after Dave was released, a federal probation officer filed a Report of Apparent Violation of Pretrial Release Conditions alleging that Dave was not living where he was supposed to. During a February 6, 2017 hearing on this Report, Judge Moreno told Demi that she could potentially face criminal sanctions if she had lied about where Dave would be living while out on bail. Judge Moreno also informed Demi that the government would decide whether to bring charges against her.

         Believing that Demi had given false sworn testimony during the bail review hearing, the government asked the Cheyenne River Sioux Tribe Police Department to investigate. Sergeant Jeremy Reede and Officer Cody Norman interviewed Demi at the fitness center in Eagle Butte, South Dakota, where she works. Less than a week later, a grand jury indicted Demi for perjury, false declaration before a court, and criminal contempt. Demi moved to suppress her statements from the interview, arguing that they were involuntary and that the officers violated Miranda v. Arizona, 384 U.S. 436 (1966), by questioning her without first advising her of her rights. Magistrate Judge Veronica L. Duffy conducted an evidentiary hearing and then recommended denying Demi's motion. Demi has now objected to that recommendation.

         This Court reviews a report and recommendation under 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). Having conducted a de novo review, this Court adopts the report and recommendation in full.

         I. Discussion

         A. Miranda Challenge

         Demi argues that her statements to Sergeant Reede and Officer Norman should be suppressed because she never received Miranda warnings. Miranda requires police officers to give a suspect certain warnings before interrogating him but only when the suspect is in custody. J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011); Miranda, 384 U.S. at 444. Judge Duffy concluded that Demi's statements are admissible under Miranda because Demi was not in custody when she made them. Demi objects to this conclusion, arguing that it is based on erroneous factual and legal findings. This Court addresses Demi's factual arguments first.

         Sergeant Reede and Officer Norman arrived at the fitness center during daylight hours on May 11, 2017. T. 44. They were wearing plain clothes but their badges and service weapons were visible. T. 11-12, 65-66. The officers asked for Demi at the front desk and one of her coworkers brought her to meet them. T. 9, 61. At that time, Demi was approximately twenty-four years old and had no criminal history. T. 37. Sergeant Reede asked Demi if she would speak with him and Demi agreed. T. 9, 61-62. Rather than interviewing Demi in the fitness center lobby, Officer Reede inquired whether there was somewhere private they could talk. T. 9-10, 44. Demi then led the officers to a conference room located beside the workout area; the room had an oval table surrounded by ten chairs. T. 9-10, 43-44, 62, 69. As they entered the room, Sergeant Reede told Demi that the interview was voluntary and that she did not have to speak with the officers if she did not want to do so. T. 9-10, 20, 44-45, 64. Demi asked if her mother could be present during the interview, but Sergeant Reede said he would prefer to speak with her mother separately. T. 9-10, 64. Demi closed the door to the conference room and everyone took a seat. T. 10, 62. Demi sat at the head of the table closest to the door while Sergeant Reede sat to her right and Officer Norman sat to her left. T. 10-11, 14, 62-63. Demi was not restrained in any way and she had an unobstructed path to the door. T. 14, 63-64, 69.

         Once everyone was seated, Sergeant Reede activated a digital recording device and began the interview. T. 10-11. He asked Demi about the circumstances surrounding the bail review hearing and what occurred thereafter. Ex. 1. Approximately five-and-a-half minutes into the interview, Sergeant Reede informed Demi that he had covered everything he needed to know. Ex. 1 at 05:14-05:20. Demi then asked Sergeant Reede why he was asking her these questions when she had already answered them in court. Ex. 1 at 05:20-05:24. Sergeant Reede said that he was concluding the interview and turned off his recording device. Ex. 1. He then responded to Demi in some manner, and Demi asked whether she was going to be in trouble. T. 35-36. The record does not show whether Sergeant Reede answered Demi's question.

         The interview lasted approximately six minutes. Ex. 1; T. 16. The officers never told Demi she was under arrest and did not arrest her at the end of the interview. T. 13; 68. The tone of the interview was conversational; Sergeant Reede never raised his voice and Demi responded appropriately in a calm, clear manner. Ex. 1; T. 14-15, 79. The officers testified that Demi seemed comfortable speaking with them but that she appeared to be nervous at the end of the interview when she asked why she was being questioned. T. 14, 16, 33, 47-48, 67.

         Demi objects to several of Judge Duffy's factual findings, the main objection being that Sergeant Reede never told Demi that the interview was voluntary and that she did not have to speak to the officers. Demi argues that the evidence does not support this finding because the discussion is not on the recording of the interview and because Sergeant Reede failed to mention the discussion in his original report. Sergeant Reede testified that the voluntariness discussion occurred before everyone sat down and he started his digital recorder. T. 19-20. He also said that although his original report on the interview did hot mention the voluntariness discussion, he wrote an addendum after an assistant United States attorney told him that any warnings he gave a suspect needed to be included in his reports. T. 19-20, 51. The addendum states that Sergeant Reede told Demi that the interview was voluntary and that she did not have to speak with the officers. Ex. 2. At the suppression hearing, Sergeant Reede and Officer Norman both testified that Sergeant Reede told Demi that the interview was voluntary and that she did not have to speak with the officers if she didn't want to. T. 9-10, 20, 44-45, 64. Judge Duffy observed this testimony and evidently found it credible. That the voluntariness discussion was not part of the recording or the original report does not justify rejecting Judge Duffy's credibility finding.

         Demi's next objection is that Judge Duffy erred by finding that the officers' firearms were not visible during the interview because they were concealed by the table. Sergeant Reede testified that when he was seated at the table in the conference room, his firearm was on his right hip, which was the hip farthest away from Demi, and that the firearm was "basically under the table." T. 12. Officer Norman testified that he angled his seat at the conference room table towards Demi so that his firearm, which was on his right hip, was facing away from her. T. 66. Regardless of whether the officers' firearms were visible during the interview, it is clear that Demi would have seen the firearms when she met the officers in the lobby. The presence of the firearms is a factor this Court will consider when analyzing the issues of custody and voluntariness.

         Demi also objects to Judge Duffy's finding that Sergeant Reede told Demi that he would prefer to speak to Demi and her mother separately. Demi argues that Judge Duffy should have found that Sergeant Reede "denied" Demi's request to have her mother present during the interview. The only evidence on this issue supports Judge Duffy's finding. Sergeant Reede and Officer Norman both testified that when Demi asked if her mother could be present during the interview, Sergeant Reede said he would rather interview Demi and her mother separately. T. 9-10, 64. Instead of insisting that her mother or anyone else be present, Demi sat down at the table and answered Sergeant Reede's questions. T. 47, 64-65.

         Demi's fourth objection is that Judge Duffy erred by finding that Demi's voice on the recording of the interview sounded calm, assertive, and precise. Demi asserts that the recording shows that she "was unaware of certain facts" and that she seemed to be "talking through her feelings and thoughts out loud." Doc. 42 at 3. This Court has listened to the interview ...


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