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United States v. Blacksmith

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

February 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GRANT BLACKSMITH, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         On October 24, 2017, a grand jury indicted defendant Grant Blacksmith on one count of aggravated sexual abuse by force and one count of aggravated sexual abuse. (Docket 1). The charges originate in an incident occurring between 2005 and 2007 where defendant allegedly sexually assaulted T.T., a minor female child. Id. Now pending before the court is defendant's motion to suppress all statements he made to the Federal Bureau of Investigation (“FBI”) agents following a polygraph examination on July 10, 2017. (Docket 30). The United States opposes this motion. (Docket 39).

         The suppression 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 court's April 1, 2018, standing order. The magistrate judge conducted a hearing on the motion at which three witnesses testified and ten exhibits were received into evidence. (Dockets 41 & 42). The parties submitted post-hearing briefing. (Dockets 48 & 53). The magistrate judge then issued a report and recommendation (“R&R”) concluding defendant's motion should be denied. (Dockets 57). Defendant timely filed objections to the R&R. (Docket 60).

         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.

         For the reasons given below, the court overrules defendant's objections to the R&R in part and sustains them in part. The court accordingly modifies and adopts the R&R. The court denies defendant's suppression motion.

         ANALYSIS

         I. Factual Findings

         The following factual recitation is derived from the R&R, the testimony at the evidentiary hearing before the magistrate judge, and the exhibits admitted in that hearing.

         In early 2016, FBI Special Agent Matt Thatcher (“SA Thatcher”) spoke with T.T., who alleged defendant sexually assaulted her in 2005 or 2006, when she was approximately seven or eight years old. (Docket 55 at pp. 3-4). Through “word of mouth, ” SA Thatcher located defendant living at the Recreation Center in Oglala, South Dakota, in March of 2016. Id. at p. 4. The Recreation Center-also known as the Re*Creation & Worship Center[1]-is a facility in Oglala hosting “living quarters for adult men” operated by a Christian organization. Id. at p. 6. SA Thatcher spoke with defendant for 30-45 minutes at the Recreation Center and informed him of the allegations by T.T. Id. at pp. 8-9, 11. Defendant told SA Thatcher T.T. is the daughter of a good friend of his, Donroy Titus, and he had spoken to her “on multiple occasions.” Id. at p. 8. At that time, defendant told SA Thatcher he did not remember assaulting T.T. and the allegations did not “seem like something he would do.” Id. at p. 9. SA Thatcher offered defendant the option to take a polygraph examination and ended the interview. Id. at p. 10. Defendant does not seek to suppress any statements made to SA Thatcher during the March 2016 interview.

         SA Thatcher contacted defendant again in June of 2017. Id. at p. 11. It is uncertain whether SA Thatcher recorded this conversation. Id. at pp. 57-58. The conversation was brief; SA Thatcher wanted to determine if defendant was still living in the Oglala area and whether he still wanted to take a polygraph test. Id. at p. 11. Defendant told SA Thatcher he was still interested in taking the polygraph and he was living with his mother and sister in the Belt Village neighborhood of Oglala. Id. Defendant did not give SA Thatcher a consistently active phone No. or other reliable way to contact him. Id. at pp. 11-13.

         SA Thatcher arranged for Special Agent Tim Wittman (“SA Wittman”), a trained polygraph examiner from the FBI's Minneapolis office, to come to Pine Ridge, South Dakota, on July 10, 2018, to administer polygraph tests. Id. at pp. 12-13. SA Thatcher attempted to contact defendant again between the June meeting and July 10 but was unsuccessful. Id. at p. 13. He retrieved the Belt Village address of defendant's sister from tribal records and went to that home on the morning of July 10 to locate defendant.[2] Id. at pp. 13-14. SA Thatcher wanted to ask defendant to take a polygraph test while SA Wittman was in Pine Ridge. Id. at p. 14.

         SA Thatcher arrived at defendant's sister's home in Belt Village between 9 and 10 a.m. and found defendant there. Id. He did not record the conversation with defendant. Id. Defendant told SA Thatcher he was willing to take the polygraph test that day, but he was tired because he had been awake during the night watching for vandals. Id. at pp. 14-15. Defendant slept approximately four or five hours that night. Id. at p. 90. Defendant was also concerned about childcare for his young daughter, who was in the home with him. Id. at p. 15. SA Thatcher told defendant it was “not easy” to get a polygraph examiner to Pine Ridge. Id. SA Thatcher also told defendant the polygraph was voluntary and he did not have to take it that day.[3] Id. at pp. 15-16. Defendant's sister agreed to watch his daughter if he left to take the polygraph test. Id. at pp. 115-16. However, she planned to “do some business” in town during the day and defendant believed the other adult likely to be in the home during the day-his niece's husband, who would return home from work shortly after 11 a.m.-was unwilling to watch his daughter if his sister left the house.[4] Id. at pp. 115-17. Defendant nevertheless agreed to leave with SA Thatcher to take the polygraph test. Id. at p. 117. They did not discuss the allegations against defendant on the ride from Oglala to Pine Ridge. Id. SA Thatcher's gun and badge were not visible during the interview at the home or during the ride to Pine Ridge. Id. at p. 17.

         SA Thatcher took defendant to the South Dakota Department of Social Services (“DSS”) building in Pine Ridge. Id. at pp. 18-19. He brought defendant into an office in that building he estimated to be approximately 10 by 12 feet in size. Id. at p. 21. SA Thatcher believed the office was of a size to be used by a single employee, such as a supervisor. Id. Defendant claims SA Thatcher asked him to leave his cell phone in this office. Id. at p. 121. SA Thatcher did not recall asking defendant to leave his cell phone or otherwise taking it from him. Id. at p. 23. He did testify, however, that he would have kept defendant's cell phone during the polygraph had defendant asked. Id. Defendant signed two consent forms prior to the polygraph interview. Suppression Hearing Exs. 2 & 3. The first, signed at 10:32 a.m. was an Advice of Rights form listing defendant's Miranda[5] rights, including the right to remain silent and the right to stop answering questions at any time. Suppression Hearing Ex. 2. The second form, signed at 10:35 a.m., was a polygraph consent form informing defendant of his right to refuse the test, to stop the test at any time and to refuse to answer any individual question. Suppression Hearing Ex. 3.

         Before administering the polygraph test, SA Wittman read the polygraph consent form out loud to defendant. (Docket 55 at p. 69). He was not wearing a gun and his badge was not visible. Id. He did not know whether defendant had a cell phone; however, he testified he instructs all test participants to make sure any cell phone is completely turned off. Id. Defendant told SA Wittman he was tired, having only had four or five hours of sleep, but that he was alert enough to focus on the test. Id. at p. 70. SA Wittman found defendant to be nervous, but not unusually so compared to other polygraph examinees. Id. at p. 71. SA Wittman attached polygraph “components”-the devices necessary for the test-to defendant's person, including a blood pressure cuff on one arm, two pneumograph tubes across his chest and two electrodermal activity plates on two of his fingers. Id. at p. 92-93. SA Wittman felt defendant understood all his questions during the test. Id. at pp. 71-72.

         The test indicated deception, in SA Wittman's opinion. Id. at p. 74. He told defendant it was “clear [he] did in fact have sexual contact” with T.T. (Docket 31-1 at p. 1). Immediately following the end of the polygraph test, SA Wittman began interrogating defendant. (Docket 55 at p. 74). SA Wittman did not remove the polygraph components from defendant's person before beginning the interrogation. Id. at p. 75. SA Wittman recorded the interrogation and a transcript was made of this recording. See Docket 31-1.

         The post-polygraph interrogation lasted approximately two hours. Suppression Hearing Ex. 1.[6] SA Wittman spoke in a level, ordinary tone of voice. Id.; Docket 57 at p. 6. SA Wittman repeatedly asked defendant if he forced T.T. to touch his penis or had vaginal sex with her, often accompanied with long colloquies referring to such incidents as a “one-time mistake” or “an accident.” See, e.g., Docket 31-1 at pp. 43-44. SA Wittman did not explicitly threaten defendant or make any explicit promises regarding criminal penalties or favorable prosecutorial treatment.

         At approximately 38 minutes into the interview, defendant can be heard recounting how his daughter's mother would take him home from parties “back in 2005.” Suppression Hearing Ex. 1. at 37:00-38:30; Docket 31-1 at pp. 19-21. At approximately minute 37:53, defendant states, “But I just don't know how I could have done it. My daughter's mom would take me, take me back home. Sir, I'm just having a hard time.” Id. at 37:47. During the post-polygraph examination, defendant asked to use the restroom and was escorted there by SA Thatcher and SA Wittman. (Docket 55 at pp. 24, 76). Defendant returned to the interview with no escort. Id. at p. 25.

         Approximately one hour and 44 minutes into the interrogation, SA Wittman turned away from defendant and began preparing for his next scheduled polygraph. Id. at p. 82. At this point, defendant stated, “Yeah, that's the only time, I think, ” referring to sexual contact with T.T. Suppression Hearing Ex. 1. at 1:45:00; Docket 31-1 at p. 50. Following this statement, defendant proceeded to explain how, at a party in approximately 2005, he returned from the restroom with his zipper undone, grabbed T.T.'s hand and placed it on his penis. (Docket 31-1 at pp. 50-52). He denied engaging in vaginal intercourse with T.T., telling SA Wittman, “That's it, that's all out there. It's just one time, that was the one-time-thing, like you said.” Id. at pp. 54-55. SA Thatcher entered the interview room after this statement and SA Wittman asked defendant to repeat his account of the sexual contact to SA Thatcher. Id. at p. 55. Defendant responded, to SA Wittman, “Just tell me back what you remember.” Id. SA Wittman recounted defendant's story to SA Thatcher to which defendant stated, “Yes, because I thought it was a different girl, until I seen her face.” Id. at p. 56.

         After the end of the post-polygraph interrogation, SA Thatcher agreed to take defendant back to his sister's house in Oglala. (Docket 55 at pp. 28-29). Defendant had been looking for alternative rides home-SA Thatcher observed him using his cell phone after the interview ended-but he was unsuccessful. Id. Defendant asked to stop to pick up food and SA Thatcher took him to Big Bat's, a convenience store in Pine Ridge. Id. at pp. 29-30. Defendant paid for his food using EBT. Id. at p. 146. He had no cash that day. Id.

         On the drive back to Oglala, SA Thatcher interrogated defendant. Id. at pp. 30-31. He recorded the conversation, which was admitted into evidence as Exhibit 103. Id. at pp. 30-31, 35-36. During the interview, defendant again stated he grabbed T.T.'s hand and put it on his penis. (Docket 31-2 at p. 4). Defendant also admitted there was “a possibility . . . [he] put [his] penis in her vagina, ” referring to T.T. Id. at p. 16. However, he did not affirmatively confess to having vaginal sex with T.T.-he repeatedly stated he did not remember. See, e.g., Id. at p. 21. The in-vehicle interview lasted approximately 34 minutes. Suppression Hearing Ex. 103. SA Thatcher returned defendant to his sister's house around 3 p.m. (Docket 57 at p. 7). The polygraph and interrogation process lasted approximately five to six hours. Id.

         Defendant testified at the suppression hearing. (Docket 55 at pp. 106-63). As of the hearing, defendant was 52 years old. Id. at p. 106. He would have been 51 years old during the July 2017 polygraph and interrogation. Id. Defendant has a state and tribal criminal history with at least 22 separate arrests. Id. at pp. 137-38. He served in the military and testified to having experience with military police. Id. at p. 145. He agreed with the prosecutor's statement, “it was no surprise to you when you had conversations with law enforcement[.]” Id. at pp. 145-46. Defendant has a high school diploma and attended “[a] few” college classes. Id. at p. 157.

         Defendant felt “uncomfortable” during the polygraph examination because SA Wittman touched his hand and arm at times. Id. at p. 150. He felt the physical distance between the two of them during the interview was “weird” and that SA Wittman was staring at him. Id. at p. 131. Defendant believed he could not leave the interview because he didn't have his cell phone and his only ride home was with SA Thatcher. Id. at p. 134. He testified he confessed to sexual contact with T.T. to end the questioning and get home. Id. at p. 137. He was concerned about his daughter. Id. at pp. 160. However, defendant also testified SA Wittman did not threaten him, yell at him or make him any promises regarding criminal charges. Id. at pp. 151-52. The polygraph questions were not a surprise to defendant. Id. at p. 153. Defendant knew he could have left the interview at any time, but he worried about leaving his phone. Id. at p. 156. He understood the questions he was asked by both agents and spoke with them voluntarily. Id. at pp. 160-61. Neither the government nor the defense introduced any evidence tending to show defendant has any mental incapacities.

         II. Defendant's Objections to the R&R

         Defendant objected to 11 portions of the R&R. (Docket 60). As summarized by the court, these objections relate to:

1. The finding SA Thatcher's testimony is credible. Id. at p. 2.
2. The finding SA Thatcher told defendant it was his decision to take the polygraph and that he did not have to take it. Id.
3. The finding defendant conferred with his mother at his sister's home in Oglala before deciding to take the polygraph test. Id.
4. The finding SA Wittman's testimony is credible. Id.
5. The finding SA Wittman told defendant the polygraph results indicated deception. Id.
6. The finding defendant repeated his confession regarding sexual contact with T.T. to SA ...

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