United States District Court, D. South Dakota, Central Division
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART
DEFENDANT'S MOTION TO SUPPRESS
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
16, 2018, Isadore John Conquering Bear (Conquering Bear)
filed an objection to Magistrate Judge Mark A. Moreno's
Report and Recommendation on Conquering Bear's Motion to
Suppress. Doc. 64. Because Conquering Bear did not receive an
effective Miranda warning before his interrogation
but nonetheless provided his statements voluntarily, this
Court adopts Magistrate Judge Moreno's Recommendation in
its entirety, granting in part and denying in part the Motion
11, 2017, tribal police on the Rosebud Sioux Indian
Reservation responded to a call requesting assistance in the
Reservation's Ring Thunder community. Government Exhibit
1. The responding officer, Jim Scott, met with Britnee
Rattling Leaf, who claimed that she had been raped by a man
who was inside house 779. Government Exhibit 1 at 5. Tribal
police entered house 779 and found Conquering Bear, whom they
arrested and placed in the Rosebud Jail. Government Exhibit 1
next day, while still in custody, Conquering Bear, who is
deaf and communicates primarily via American Sign Language
(ASL), was interviewed by Special Tribal Agents Kory Provost
and Matthew Tucker in the Rosebud Jail without an ASL
interpreter present. Government Exhibit 3. They reviewed the
advice of rights form with him, which he signed. Government
Exhibit 3. Agents Provost and Tucker communicated with
Conquering Bear by writing questions in English and asking
him to respond by shaking his head or providing written
responses in English. Government Exhibit 3. During the
interview, Conquering Bear provided contradictory responses
to the questions asked of him, nonverbally indicating in
separate answers that Britnee Rattling Leaf was both awake
and asleep when the two had sex. Government Exhibit 6 at 6.
Agent Provost's attempts to have Conquering Bear write
out his answers to questions were unsuccessful, as Conquering
Bear instead copied the language of the question asked of
him. Government Exhibit 3. Thirty minutes into the interview,
Agent Provost contacted an Assistant United States Attorney
and told her that he felt uncomfortable proceeding with the
interview because of Conquering Bear's inability to
understand the questions. Government Exhibit 6 at 8. Agent
Provost's hesitation led him to end the interview shortly
thereafter. Government Exhibit 3.
United States indicted Conquering Bear on one count of
aggravated sexual abuse in violation of 18 U.S.C.
§§ 1153, 2241(a), and 2246(2). Doc. 2. Conquering
Bear moved to suppress the statements he made to Agents
Provost and Tucker during the interview on Miranda v.
Arizona, 384 U.S. 436 (1966), and due process grounds.
Doc. 46 at 1. Judge Moreno held an evidentiary hearing on
this motion on June 11, 2018. At this hearing, Dr. Robert
Pollard, an expert on deafness, testified that Conquering
Bear's "reading, vocabulary, and comprehension were
at a second grade level, far below the sixth grade level of
reading competency required to understand the
Miranda warnings." Doc. 62 at 5. Thus, Dr.
Pollard concluded, the attempt to administer a
Miranda warning to Conquering Bear was ineffective.
Judge Moreno issued a Report and Recommendation on the Motion
to Suppress on June 29, 2018, in which he found that
Conquering Bear did not knowingly and intelligently waive his
Miranda rights but did make his statements
voluntarily. Consequently, Judge Moreno recommended that this
Court grant the Motion to Suppress with respect to the use of
the statements as evidence and deny the Motion to Suppress
with respect to the use of the statements for impeachment
purposes. Conquering Bear now objects to the finding that his
statement was voluntary.
district court must review de novo "those portions of
the [magistrate judge's] report or specified proposed
findings or recommendations to which objection is made."
28 U.S.C. § 636(b)(1). Neither of the parties has
objected to Judge Moreno's conclusion that Conquering
Bear did not knowingly and intelligently waive his
Miranda rights before Agents Provost and Tucker
interrogated him. This Court thus adopts Judge Moreno's
finding that Conquering Bear did not knowingly and
intelligently waive his Miranda rights and excludes
evidence obtained during the interview from the
Government's case-in-chief against Conquering Bear.
Conquering Bear challenges Judge Moreno's finding that
the statements he made to Agents Provost and Tucker were
given voluntarily, arguing that his disability prevented him
from comprehending what the agents were asking of him. Doc.
64 at 4.
Miranda deficiencies, a voluntary statement made to
law enforcement may be used against a defendant for
impeachment purposes, but an involuntary confession is wholly
inadmissible as evidence because such a confession
"offends due process." Schneckloth v.
Bustamonte, 412 U.S. 218, 225-226 (1973) (citation
omitted). The Government bears the burden of showing by a
preponderance of the evidence that a defendant's
statement was voluntary. Missouri v. Seibert, 542
U.S. 600, 608 n.1 (2004). "Statements to law enforcement
authorities are voluntary if they are 'the product of an
essentially free and unconstrained choice by [their]
maker.'" United States v. Vinton, 631 F.3d
476, 482 (8th Cir. 2011) (alteration in original) (quoting
Schneckloth, 412 U.S. at 225). A statement is
involuntary only if (1) police coercion overbore the
defendant's will, and (2) there is reason to believe that
the suspect was susceptible to coercion because of some
physical or mental condition. See United States v.
Anaya, 715 F.Supp.2d 916, 949-54 (D.S.D. 2010).
"Whether a confession is involuntary is judged by the
totality of the circumstances." United States v.
LeBrun, 363 F.3d 715, 724 (8th Cir. 2004) (en banc).
interrogation tactic "render[s] a confession involuntary
. . . unless 'the overall impact of the interrogation
caused the defendant's will to be overborne.'"
United States v. Brave Heart, 397 F.3d 1035, 1041
(8th Cir. 2005) (quoting Jenner v. Smith, 982 F.2d
329, 334 (8th Cir. 1993)). Here, there is no evidence that
Conquering Bear's will was overborne by the absence of an
ASL translator. Conquering Bear gave some inconsistent or
non-responsive answers that may reflect some misunderstanding
of questions, but some answers, particularly about his
biographical information, reflect an understanding and proper
response. The officers certainly were not acting in a manner
calculated to overbear Conquering Bear's will, but seemed
sensitive to Conquering Bear's inability to converse in
English. As the Court noted in Brave Heart, even
confessions elicited through deception and misinformation are
not involuntary unless they overbear the defendant's
which have previously considered the voluntariness of a
defendant's statements made in English when English is
not the defendant's primary language have concluded that
linguistic difficulties do not make a defendant's
statements involuntary. In Thatsaphone v. Weber, 137
F.3d 1041 (8th Cir. 1998), law enforcement officers conducted
a noncustodial interview of Thatsaphone, a Laotian immigrant
accused of engaging in sex with a minor. Id. at
1043. Both Thatsaphone and law enforcement communicated in
English during the interview, even though English was not
Thatsophone's primary language. Id. The court
held that because "Thatsaphone's responses and
conduct gave no indication that coercion was causing his will
to be overborne, either by his lack of English skills or any
other factor," his responses were voluntary.
Id. at 1047. Similarly, in United States v.
Munoz-Escalante, the Court held that the defendant's
"(inability to speak English" did not cause his
statements to be involuntary. No. CR 13-50154-01-KES, 2014 WL
2574535 at *3 (D.S.D. June 9, 2014). "The fId.
act that English is a second language to a person being
interviewed by police does not ipso facto cause any
statements made by such person to be involuntary." Thus,
Conquering Bear's difficulty communicating in English
does not mean that his responses in written English were
involuntary. Like Thatsaphone, Conquering Bear's
"responses and conduct gave no indication that coercion
was causing his will to be overborne" because of his
limited ability to communicate in English. Rather, Conquering
Bear's responses indicate that he understood and
voluntarily answered at least some of the questions posed by
the Agents. If portions of Conquering Bear's responses do
get used at trial to cross-examine Conquering Bear, this
Court will give Conquering Bear and his counsel latitude to
explore where Conquering Bear may have misinterpreted
foregoing reasons, it is hereby
that Magistrate Judge Mark A. Moreno's Report and
Recommendation, Doc. 62, is adopted in its ...