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United States v. Bear

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

January 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JULISSA POOR BEAR, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         A grand jury returned an indictment alleging defendant Julissa Poor Bear conspired to distribute a controlled substance in violation of federal law. (Docket 1). Defendant filed a motion to suppress statements she made to law enforcement. (Docket 39). The suppression motion was referred to the magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the standing order dated March 9, 2015. Magistrate Judge Daneta Wollmann conducted a hearing on the motion and issued a report and recommendation concluding defendant's motion should be granted. (Dockets 70 & 73).

         Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the magistrate judge's proposed findings and recommendations, the district court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.

         The government filed objections to the report and recommendation. (Docket 76). As set forth by the government, the objections target four points:

1. The Magistrate Judge's conclusion that “the government has failed to prove by a preponderance of the evidence that Ms. Poor Bear's confession was voluntary.”
2. The Magistrate Judge's conclusion that its factual findings supported a recommendation the defendant's statements were not voluntary.
3. The Magistrate Judge's finding that statements by the agents constituted express or implied promises of leniency.
4. The Magistrate Judge's finding that the defendant's will was overborne.

Id. at pp. 1-2 (internal citations omitted). The government “concurs with the [report and recommendation's] factual findings except as specifically referenced” in its objections. Id. at p. 2.

         The court details its factual findings below. To the extent they do not align with the government's view of the facts, the government's objections are overruled.

         FACTS

         In late October 2016, defendant turned herself into the jail in Kyle, South Dakota, because she believed people in the area planned to kill her. She was placed in custody because she had an outstanding tribal arrest warrant. (Docket 73 at p. 2). Then she was transferred to the Adult Offender's Facility (“AOF”) in Pine Ridge. Id.

         Dan Cooper (“SA Cooper”) is a Special Agent with the Federal Bureau of Investigation. Id. His investigations focus on drug activity on the Pine Ridge Indian Reservation. Id. Soon after defendant was taken into custody in Kyle, SA Cooper received notice. Id. SA Cooper had been investigating defendant: she was a suspect in a drug conspiracy, informants discussed defendant's drug activity with law enforcement and SA Cooper had begun working with federal prosecutors on presenting to a grand jury the information on defendant. Id.

         SA Cooper went to meet with defendant at the AOF, but medical problems arose for her, possibly because she was in the seventh month of her pregnancy. Id. at pp. 2-3. Although the agent and defendant interacted briefly, defendant's condition prohibited a full discussion. Id. at p. 3.

         SA Cooper returned to the AOF the following day with Dane Rasmussen (“SA Rasmussen”), who is a Special Agent with the South Dakota Division of Criminal Investigation. Id. AOF staff indicated defendant was admitted to the Indian Health Service hospital. Id. The agents went to the hospital. Id.

         Before the agents arrived, the hospital admitted defendant based on her signs of distress and abdominal pains. Id. A certified nurse midwife treated defendant and testified defendant had low amniotic fluid and she provided defendant with intravenous fluids. Id.

         The agents reached defendant in her hospital room that morning. Id. They did not know the specifics of defendant's medical problems, but they believed it related to her pregnancy. Id. at p. 4. Wearing plain clothes and with their weapons concealed, the agents began questioning defendant, who was on her back in a hospital bed with the headrest inclined. Id. at pp. 3-4. The agents asked whether she felt better than the day before, and she indicated she did not feel better. Id. at p. 4. The agents presented defendant with a form setting out her Miranda[1] rights. She communicated she understood the rights and signed the form. Id. The agents discussed defendant's concern for her personal safety, and they interrogated her on her drug activity. Id. at pp. 4-6. The interactions lasted approximately one hour. Defendant was tired and yawned throughout the discussion and interrogation. Id. at p. 4. The tone of each person was generally calm and conversational. Id. Defendant understood the agents' questions and provided responsive answers. Id.

         The agents began by explaining to defendant she was a suspect in an ongoing investigation and they were prepared to bring information on her to a grand jury. (Exhibit 1 at 6:00-8:00). Then the agents provided defendant with an opportunity to explain why she believed her life was in danger. According to defendant, four unknown men driving a black vehicle with Colorado license plates visited the house of defendant's Aunt, asking for defendant. Id. at 8:00-22:00. Defendant's Aunt warned defendant to be careful because she believed the four men were responsible for the recent murder of Vinny Brewer, defendant's former romantic partner and the man she believed was the father of her unborn child. Id.; see also Exhibit 2. Shortly after, when defendant was driving, she noticed a black car behind her that she believed was following her because she attempted to lose the car on backroads but was unsuccessful. (Exhibit 1 at 8:00-22:00). Defendant asserted she spoke on the phone to her sister-in-law, who encouraged her to go to the jail for safety. Id. Defendant safely reached the Kyle jail and turned herself in. Id. Defendant believed her life was in jeopardy. Id. (“I am like, I could have been dead by now, but before that I called them to, like right after my auntie told me they were looking for me.”).

         After defendant explained her safety concerns, the agents began interrogating her about her suspected drug activity. Id. at 24:00-26:00. During the interrogation, which comprises the remainder of the interactions in the hospital room, SA Cooper made comments regarding defendant's truthfulness and the status of their drug investigation. SA Cooper's comments include:

• You say you haven't dealt with any Hispanics or Mexicans or anything and that is not true, okay? We know those things. So we need to start addressing it. Okay? The best way now is to start, you are not charged right now federally, okay? We can start that process. And we go talk to our prosecutor and we can say-we talked to Julissa. Okay, she was truthful with us, we can use those things to your advantage.
• But I can guarantee you this-we know enough that I am going to be presenting your case to a federal grand jury. That is how that works. They decide what you get charged with, if you get charged with anything. We are there, if that makes sense. Does that have to happen? No. But if we walk out of here today and all we talk about is that Julissa is lying to us about not being involved, then obviously what do you think we have to do, we have to proceed forward with that, correct?
• Because the bottom line is right now, if we continue this conversation at the jail or you don't want to anymore and we walk away, we are going to have to take what you tell us and proceed forward. Right now you haven't told us what the federal prosecutor is going to want to know. The fact of the matter is does Julissa Poor Bear do this thing 100 percent so we can either consider maybe delaying charges against her because there may be more help that we can do for the community with things we know.
• But if you want to take advantage of this situation, this time you are spending with us and tell us the truth, okay, then there is all kinds of decisions we can make. But right now the only decision we are going to make is this month I am going to go to a federal grand jury and I am going to talk about Julissa Poor Bear and everybody she is dealing with. That is what I am going to do. If you don't want that to happen, then you need to start telling us things that are truthful.
• But just understand what the reality of that is, what your future is going to bring. We are going to charge people with things like this, okay, ten year mandatory minimum federal prison sentence. What that means is if you are convicted, if you are convicted, you would have to go to prison for ten or more years. . . . The only way to get below that is to be truthful about it so that the federal prosecutor can tell the judge okay, we don't want somebody like Julissa Poor Bear to be sentenced to ten years or more; we want you to be able to sentence her below that. The only way that happens is truth coming out of Julissa Poor Bear's mouth.
Right now, as we walk away, okay, October 25th is going to be the day Julissa Poor Bear decided she wanted to be federally indicted. Okay? That is what is happening here. I think you understand that. If you are comfortable with that, that is fine.

Id. at 24:00-1:05:00 (emphasis added).

         While the agents interrogated her, defendant reiterated her fear of being killed by the people she believed were looking for her. Id. at 35:00- 1:06:00. In response, the agents probed about the reasonableness of her fear, but they also supported her view that the entire situation was a serious matter and the safety of her and her family was important. Id.

         In urging defendant's truthfulness, SA Cooper brought up the subject of the safety of defendant's family:

• SA Cooper:
o The fact of the matter is, there are people in jail. There's people that are charged. There are people that are going to get charged. And the only way, I got to assume that Julissa, you and your family are who you want to take care of. Right? That is your priority.
• Defendant:
o And then me and my family are in ...

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