United States District Court, D. South Dakota, Central Division
OPINION AND ORDER ADOPTING REPORT AND
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Elnita Rank (Rank) was indicted along with other
co-defendants on February 6, 2018, for conspiracy to
retaliate against a witness in violation of 18 U.S.C.
§§ 1513(e) and (f). Doc. 1. Prior to being
indicted, Rank was interviewed by law enforcement on October
19, 2017, and subsequent to the indictment sought to suppress
the statements made during that interview, asserting that
they were involuntary under the Fifth Amendment. Doc. 88.
Magistrate Judge Mark A. Moreno conducted a suppression
hearing on May 8, 2018, and issued a Report and
Recommendation denying Rank's motion. Doc. 110. Rank has
now objected to that Report and Recommendation.
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.
argues that her will was overborne by the confluence of her
age, the lack of any Griffin-type warnings, and the
conduct of the interviewing agents such that her statements
were not voluntary and thus taken in violation of the Fifth
Amendment. Rank bases her objection primarily on the fact
that United States Attorney's Office Investigator James
Flanigan testified that he did not provide Rank with any
Griffin warnings and did not have a specific
recollection of any such warnings being given during the
interview. T. 11, 17-18. Additionally, Rank asserts that the
interview was improper and coercive because she was asked
questions after inquiring, possibly three times during the
course of the interview, whether she should have an attorney
present. Rank declined to allow the interview to be recorded,
so Magistrate Judge Moreno, and in turn this Court, must take
the facts from the testimony of the only two witnesses at the
suppression hearing: Investigator Flanigan and FBI Special
Agent Thomas Wilberg.
Moreno rejected Rank's arguments. In doing so, Judge
Moreno credited the testimony of Special Agent Wilberg, who
testified that at the outset of the interview he told Rank
that she was not in trouble, would not be arrested at the
conclusion of the interview, and could end or suspend the
interview whenever she chose. T. 25-26. That is, Special
Agent Wilberg testified that he in fact gave the
Griffin warning to Rank at the start of the
interview. T. 26. Investigator Flanigan's lack of memory
of Griffin warnings being given do not require this
Court to discount Special Agent Wilberg's testimony that
he in fact gave such warnings. This Court defers to Judge
Moreno's decision to credit the testimony of Special
Agent Wilberg. See United States v. Lockett 393 F.3d
834, 837-38 (8th Cir. 2005) ("The magistrate's
finding that the officer's testimony was believable is
deserving of deference."); United States v.
Stoneman. No. CR 09-30101-RAL, 2010 WL 1610065, at *6
(D.S.D. Apr. 20, 2010) ("The Court is entitled to give
weight to the credibility determination of the magistrate
judge." (citing United States v.
Martinez-Amaya, 67F.3d678, 681 (8th Cir. 1995))).
Moreno further considered the cordial nature of the interview
and noted it involved no threats, misrepresentations, or use
of force by the interviewing agents. In addition, Rank did
not appear to be particularly vulnerable to questioning
despite her advanced age. Judge Moreno determined that
Rank's unwillingness to answer more questions without her
attorney present after the agents made pointed inquiries
regarding the facts constituting the basis of her indictment
and her subsequent request that the agents leave undermined
the argument that her age rendered her particularly
vulnerable to having her will overborne and also established
that she was both aware of her legal rights and understood
how to exercise them. Judge Moreno concluded that the record
as a whole demonstrated that Rank's statements were made
voluntarily and were not the product of an environment and
questioning that was so coercive as to overwhelm Rank's
will. See United States v. Thunderhawk. 799 F.3d
1203, 1206 (8th Cir. 2015) (explaining that "coercive
police activity is a necessary predicate to the finding that
a confession is not 'voluntary' within the meaning of
the Due Process Clause of the Fourteenth Amendment" and
rejecting the argument that a promise not to be arrested at
the end of an interview constitutes a coercive tactic)
(alteration omitted) (quoting Colorado v. Connelly.
479 U.S. 157, 167 (1986)); United States v. LeBrun.
363 F.3d 715, 726 (8th Cir. 2004) (noting that a "key
concern in judging whether confessions [are] involuntary,
or the product of coercion, [is] the intelligence, mental
state, " and other characteristics of a defendant that
may make them particularly susceptible to having their will
overborne) (third alteration in original).
reviewed the record de novo, this Court agrees with Judge
Moreno's factual findings and legal conclusions regarding
Rank's statements. The arguments Rank makes to this Court
were fully addressed by Judge Moreno and do not require
further analysis. For the reasons stated in the Report and
Recommendation, this Court finds that Rank's statements
were voluntary and not the result of overreaching conduct by
the interviewing agents that overwhelmed her will in
violation of the Fifth Amendment. Rank's objections are
reasons stated above, it is hereby
that Rank's Objections to the Report and Recommendation,
Doc. 111, are overruled. It is further
that the Report and Recommendation, Doc. 110, is ...