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United States v. Gillette

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

January 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CALVIN GILLETTE, Defendant.

          REPORT AND RECOMMENDATION ON MOTIONS TO SUPPRESS STATEMENTS AND TRIBAL COURT GUILTY PLEA

          MARK A. MORENO UNITED STATES MAGISTRATE JUDGE.

         Calvin Gillette is charged by federal Indictment with assaulting his significant other at a time when he had two prior domestic abuse convictions. In separate motions, he seeks to (1) suppress his unwarned statements after being handcuffed and detained; and (2) keep his tribal guilty plea - arising out of the same incident as the federal offense - from being used to prove the truth of the matters asserted in the plea. Because some of Gillette's statements were evoked in violation of Miranda, this motion should be granted in part and denied in part. His second motion - which demands that the plea he made be excluded on Sixth and Fifth Amendment grounds - lacks merit and should be denied in its entirety.

         BACKGROUND

         On January 31, 2017, Daniel Reynolds, then a police officer for the Rosebud Sioux Tribe, responded to a domestic dispute at a house in Rosebud, South Dakota. Once inside the dwelling, Reynolds placed Gillette in handcuffs and detained him. Reynolds at first talked to Lucille Running Enemy, the alleged victim, and obtained a statement from her. Next, he questioned Gillette - briefly - with no Miranda advisement. Reynolds then asked to speak with the reporting person, Amanda Roubideaux, about what happened and did so. Afterwards, he packed up some things for Gillette and escorted him out Of the residence. Just past the doorway, Gillette took off running. Reynolds gave chase and eventually found Gillette hiding in the basement of a nearby home. There, tribal officers collared Gillette and transported him to jail.

         The tribal prosecutor charged Gillette with several offenses including domestic' abuse.[1] In May, 2017, Gillette appeared with counsel in tribal court and pled guilty to the domestic abuse offense and was sentenced on it (and three other offenses) to 365 days of incarceration, with 272 days suspended. He was also fined and placed on probation for one year. As part of his probation, he was ordered not to have contact with Running Enemy.

         Four months later, a federal grand jury indicted Gillette and charged him with domestic assault by an habitual offender.[2] The assault charge sprouted from the same incident and offense Gillette had earlier pled guilty to in tribal court. Following his arraignment and not guilty plea on the federal charge, Gillette filed two motions seeking to suppress: (1) the statements he made to Officer Reynolds; and (2) his tribal guilty plea. The Court held an evidentiary hearing on the motions, heard testimony, and received five exhibits into evidence, including a compact disc of Reynolds's body cam and transcript of the same and an audio recording of Gillette's tribal plea proceedings.

         DISCUSSION

         A. Interrogation

         In his first motion, Gillette claims he was subject to custodial interrogation without being advised of his Miranda[3] rights. He argues that the un-Mirandized questioning of him requires suppression of certain statements he made after being handcuffed in his home. It is clear Gillette was never given any Miranda warnings. And there is no dispute Gillette was in custody when he spoke. The only question is whether he was interrogated.

         Under the Fifth Amendment, a suspect is guaranteed the right to remain silent and to the assistance of counsel during custodial interrogation.[4] If the suspect is not informed of his rights while in custody, then any statements gained from interrogating him are generally inadmissible as substantive evidence.[5] For purposes of Miranda, "interrogation . . . must reflect a measure of compulsion above and beyond that inherent in custody itself."[6]

         Interrogation includes not only express questioning, but also words or conduct an officer should know are "reasonably likely to elicit an incriminating response from the suspect."[7] This latter test "focuses primarily upon the perceptions of the suspect, rather than the intent of the police. ... A practice that the police should know is reasonably likely to evoke an incriminating response from [the] suspect thus amounts to interrogation."[8] But the police "cannot be held accountable for the unforeseen results of their words or actions."[9]

         Miranda does not bar, from use at trial, volunteered or spontaneous statements made during a conversation not initiated by a police officer.[10] And the officer's request for or clarification of such statements generally does not amount to interrogation as conceptualized in Miranda.[11]

         1. Initial Statements

         After putting Gillette in wrist restraints, Office Reynolds asked Gillette what happened and if he had been drinking. Gillette made inculpatory statements in response to these questions before engaging in an argumentative conversation with Running Enemy. The questions were ones that, from an objective standpoint, were designed to prompt, and lead Gillette to make, self-incriminating statements. His statements[12] were the product of interrogation - as that term has been defined and applied[13] - and obtained in violation of Miranda. They must, therefore, be suppressed as substantive evidence - a point the Government concedes.[14]

         Even so, Gillette's statements are admissible as impeachment evidence if he elects to testify in his own defense at trial.[15] They were ones he wanted to make and were not the offspring of questioning that was so coercive it overbore his will and shoehorned his decision making capacity.[16]

         That Gillette was in custody does not mean he could not make voluntary statements.[17] He certainly had the efficacy to speak for himself, and did so - of his own volition - despite the Miranda transgression.

         2. Later Statements

         The interrogation ended abruptly when Gillette and Running Enemy began quarreling with each other. Officer Reynolds managed to break up the squabble by sending Running Enemy to get her sister, Roubideaux - who had originally called and summoned the police. Roubideaux tried to relate what had taken place earlier, but Gillette kept interrupting her. Reynolds then went over with Gillette to the couch area of the living room, finished packing Gillette's bag, and got him ready to leave. During this process, Reynolds talked to Gillette, asking Gillette some questions and responding to his inquiries and requests, before ushering him - still in wrist manacles - through the front door.

         Gillette contends that the statements he made during his bickering with Running Enemy and until his apprehension outside the residence should all be excluded because they were tainted by and flowed from the initial Miranda breach. The Court disagrees.

         Gillette's statements were spontaneous[18] or in response either to general, benign, innocuous questions[19] or attempts, on the part of Officer Reynolds to clarify or confirm what Reynolds had already said.[20] Reynolds' remarks and questions were not designed to broaden Gillette's prior statements, enhance his guilt, or increase the number or level of offenses.[21] Miranda does not safeguard Gillette from making unbidden statements under circumstances that Reynolds neither begun nor engendered.[22]

         The Court has considered - as it must - whether Gillette had any peculiar susceptibilities.[23] He did not - at least that Officer Reynolds was aware of.

         Officer Reynolds had no knowledge of Gillette having any distinctive vulnerabilities or propensities to make sudden impromptu remarks.[24] Whatever stimulus Reynolds' words or actions may have created, it did not rise to the level of interrogation to require the exclusion of Gillette's unsolicited statements.[25]

         B. Sixth and Fifth Amendments

         Gillette attacks the validity of the guilty plea - to the crime of domestic abuse -he made in tribal court. That plea stemmed from the same incident as the federal domestic assault offense he now stands charged with. He says that because the plea was inadequate and contravened the Sixth and Fifth Amendments, it cannot be used against him in his federal case.

         1. Brief Version

         Boiled down, the question is whether it is constitutionally permissible for the, Government to use Gillette's tribal guilty plea - obtained in full compliance with federal and tribal statutory laws - to prove the underlying facts for a subsequent federal charge that emanates from the same offense conduct. The short answer to this question is "yes." Because his plea occurred in proceedings that adhered to the Indian Civil Rights Act (ICRA)[26] and tribal law, the plea was valid when entered and the use of it at trial -to show that he committed the domestic assault offense charged - does not violate the Constitution. In particular, Gillette suffered no infringement of his Sixth Amendment right to counsel - because that Amendment does not apply to tribal court proceedings.[27]And he was accorded the "due process of law" to which he was entitled to under the Fifth Amendment.[28]

         2. Detailed Version

         a. Sixth Amendment

         i. Right to Counsel

         The Bill of Rights, including the Sixth Amendment right to counsel, does not apply to Indian tribes and their court proceedings.[29] This is because "[a]s separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority."[30]

         Congress though has plenary authority to regulate tribal affairs and limit or expand tribal sovereignty under the Indian Commerce and Treaty Clauses[31] of the Constitution.[32] Based on this authority, Congress enacted the ICRA, selectively conferring a gamut of procedural safeguards to tribal defendants "similar, but not identical, to those contained in the Bill of Rights. . . ."[33] As currently amended, [34] the ICRA requires only the appointment of counsel for indigent criminal defendants in tribal court for prosecutions that result in incarceration for greater than one year.[35] So if a tribe decides not to provide for a right to appointed counsel through its own laws, indigent defendants have no constitutional or statutory right to the appointment of counsel unless the tribal court imposes a sentence beyond one year.[36]

         Gillette pled guilty in Rosebud tribal court to domestic abuse and received a custody sentence of less than one year.[37] When he entered his plea, Gillette had been appointed a licensed attorney and member of the tribal bar to represent him.[38] The appointment complied with the Tribe's Constitution and Law and Order Code[39] and the ICRA.[40] Although similar to the Sixth Amendment right to counsel, these laws "are not coextensive with it.[41]

         This case is not one in which a tribal defendant entered a guilty plea without the benefit of counsel. Gillette had a professional attorney, licensed in state and tribal court, with him at the time of the plea taking. His plea complied with the ICRA and tribal law and was thus binding when made.[42] Use of the plea in a later filed federal case does not violate "anew" the Sixth Amendment, because that Amendment was never infringed in the first place.[43] It matters not whether Gillette's attorney was licensed in Nebraska and not South Dakota.[44] Because Gillette's plea was obtained in accord with the ICRA and the laws of the Rosebud Tribe, the plea is enforceable and may be used to prove up his federal domestic abuse offense.[45]

         ii. Padilla

         Gillette alternatively claims that the Government should be barred from using his tribal court guilty plea because the plea was not made knowingly and voluntarily and as such is constitutionally invalid. More precisely, he argues that his Sixth Amendment right to counsel was dishonored because his counsel never informed him of the consequences of his guilty plea - that it could be used against him in a successive criminal action. This argument falls flat because the Sixth Amendment does not apply to tribal court proceedings.[46] It also lacks merit for another reason: Advice about collateral consequences does not violate the Sixth Amendment.

         "The long-standing test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to [a] defendant/"[47] What this means is that a defendant must be informed of the "direct," but not the "collateral," consequences of his plea.[48] The contrast between the two "turns on whether the result represents a definite, immediate[, ] and largely automatic effect on the range of the defendant's punishment."[49]

         Federal appellate courts, which have considered the scope of the Sixth Amendment right to counsel in the plea negotiations realm, have decided "that 'counsel's failure to inform a defendant of the collateral consequences of a guilty plea is never' a violation of the Sixth Amendment."[50] The Eighth Circuit has definitively stated that the use of a guilty plea in a subsequent federal proceeding is not a direct consequence.[51]

         The variation between direct and collateral consequences of a guilty plea has, to some extent, been called into doubt by the Supreme Court's decision in Padilla v. Kentucky, [52] The Padilla Court held that under the Sixth Amendment, counsel must inform a defendant "whether his plea carries a risk of deportation" for the plea to be valid.[53] In doing so, the Court determined that deportation advice - as a potential consequence of a guilty plea - was not "categorically removed" from the bounds of the Sixth Amendment and left intact the profusion of lower court decisions applying the distinction in other contexts.[54]

         Three years later, the Supreme Court revisited its decision and held that Padilla had announced a "new rule" and did not apply to cases pending on collateral review.[55]The Court's retrospective analysis is helpful in determining the breadth of Padilla's holding. Importantly, the Court reaffirmed the "unique" nature of deportation and did not renounce the direct-collateral distinction.[56] And even after Padilla and the Court's follow up interpretation of it, courts have continued to adhere to the same distinction on matters other than deportation.[57]

         Padilla establishes that a certain consequence - deportation - even though technically "collateral/' may be so embedded in the underlying criminal process and so severe and likely to result that notice of it must be made to satisfy the dictates of the Sixth Amendment. But the ...


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