United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
filed a motion to suppress a statement he gave to law
enforcement. (Docket 48). The motion was referred to
Magistrate Judge Daneta Wollmann for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and
the standing order dated March 9, 2015. The magistrate judge
conducted a hearing on the motion and issued a report and
recommendation (“R&R”) concluding
defendant's motion should be denied. (Docket 59).
Defendant timely filed objections to the R&R. (Docket
62). For the reasons stated below, defendant's objections
are overruled and the report and recommendation is adopted in
Pumpkin Seed's objections to the R&R are summarized
1. Defendant's cognitive impairment should have put FBI
Special Agent (“SA”) Garland on notice before the
2. SA Garland should have employed standard practices for
interviewing an intellectually disabled person.
3. The magistrate judge improperly discounted the testimony
of Dr. Stephen Manlove.
4. SA Garland's interview tactics were coercive and
5. Mr. Pumpkin Seed gave an involuntary statement which
should be suppressed.
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. See also Fed. R.
Crim. P. 59(b)(3). The court completed a de novo review of
those portions of the R&R to which objections were filed.
jury indicted Mr. Pumpkin Seed on five counts of aggravated
sexual abuse of a minor, L.E. II (“L.E.”), in
violation of 18 U.S.C. §§ 1153, 2241(c), and
2246(2)(A), (B) & (D). (Docket 1). Mr. Pumpkin Seed filed
a motion to suppress the statement he made to SA Brett
Garland on December 19, 2016. (Docket 48). Mr. Pumpkin Seed
asserts the statement was involuntary and should be
magistrate judge held a suppression hearing at which SA
Garland, Dr. Manlove and Mr. Pumpkin Seed testified and
several exhibits were admitted. (Dockets 57 & 58).
Relying on the audio recording of the hearing, For The Record
(“FTR”), the magistrate judge issued the R&R.
(Docket 59 at p. 3 n.1). The district court ordered the
preparation of a transcript of the suppression hearing, which
was filed under seal after the R&R and defendant's
objections were filed. See Docket 64. The court will cite to
the transcript and not to the FTR referenced by the
magistrate judge. The court carefully reviewed the CD of the
interview of Mr. Pumpkin Seed.
DEFENDANT'S COGNITIVE IMPAIRMENT SHOULD HAVE PUT SA
GARLAND ON NOTICE BEFORE THE INTERVIEW PROCEEDED
court-ordered competency evaluation, the magistrate judge
found Mr. Pumpkin Seed had a “full-scale IQ . . .
within the first percentile, and that he suffered from a mild
intellectual disability.” (Docket 59 at p. 4) (referencing
Docket 16 at pp. 27 & 30; also filed at the hearing as
Exhibit 3). The magistrate judge concluded that “[l]ow
intelligence or impaired mental functioning are not
determinative of voluntariness without some evidence of
coercive police activity.” Id. at p. 6
(referencing Colorado v. Connelly, 479 U.S. 157, 165 (1986);
United States v. Turner, 157 F.3d 552, 555 (8th Cir.
1998)). “Neither does the use of suggestive or
deceptive questioning tactics render a confession involuntary
unless ‘the overall impact of the interrogation caused
the defendant's will to be overborne.' ”
Id. at p. 7 (citing 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)) and
referencing United States v. Makes Room For Them, 49
F.3d 410, 415 (8th Cir. 1995)).
magistrate judge found “[t]here is no dispute in this
case that Mr. Pumpkin Seed is cognitively impaired. . . .
However, there is no evidence of police misconduct sufficient
to overbear Mr. Pumpkin Seed's will.” Id.
Pumpkin Seed objects to this conclusion because upon becoming
aware of defendant's impairment, SA Garland should have
been put on notice of defendant's mental status. (Docket
62 at p. 2). Defendant contends that with this notice SA
Garland should have known he was dealing with “a meek
and mentally challenged individual.” Id. at p.
Garland's recorded interview with Mr. Pumpkin Seed lasted
approximately 58 minutes. The court listened to the recording
several times to verify defendant's statements made
during the interview. It is apparent from the first several
minutes of the interview that Mr. Pumpkin Seed was mildly
the initial portion of the interview, Mr. Pumpkin Seed gave
prompt, accurate details including his name, address, date of
birth, telephone No. (both a land line and cell phone), who
lived in the house with him and the date and circumstances
surrounding his brother's death in 2015. During this
portion of the discussion, SA Garland asked for clarification
of numbers, dates and other information. In each instance,
Mr. Pumpkin Seed gave prompt and clear answers.
Pumpkin Seed suggests SA Garland was less than candid about
his knowledge of defendant's intellectual disability.
(Docket 62 at p. 2). SA Garland testified that
“especially at the beginning of the interview [when] we
were talking in general, [his memory] was very good. He could
cite specific dates of when the moved into the residence,
when his brother passed away, when [L.E.] . . . was born,
specific instances of interactions with advocates or lawyers
regarding child custody, things of that nature.”
(Docket 64 at p. 17:6-130). SA Garland did not see anything
which would indicate Mr. Pumpkin Seed had a physical
impairment. Id. at p. 18:6-9. SA Garland
acknowledged on cross-examination he was aware Mr. Pumpkin
Seed had suffered a head injury “based on what he [Mr.
Pumpkin Seed] said.” Id. at p. 27:17-18. SA
Garland testified he was not concerned about Mr. Pumpkin
Seed's head injury affecting his ability to admit to his
actions. Id. at p. 27:19-21.
court finds SA Garland was put on notice early in the
interview process of Mr. Pumpkin Seed's mild intellectual
disability. The magistrate judge acknowledged that disability
and factored that disability into the analysis of whether the