United States v. Kamelia No Moccasin, 090913 SDDC, 13-30010(02)-RAL

Docket NºCR. 13-30010(02)-RAL
Opinion JudgeMARK A. MORENO, Magistrate Judge.
Party NameUNITED STATES OF AMERICA, Plaintiff, v. KAMELIA NO MOCCASIN, a/k/a Kamelia Shoulders, Defendant.
Case DateSeptember 09, 2013
CourtUnited States District Courts, 8th Circuit, United States District Courts. 8th Circuit. District of South Dakota



KAMELIA NO MOCCASIN, a/k/a Kamelia Shoulders, Defendant.

No. CR. 13-30010(02)-RAL

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

September 9, 2013


MARK A. MORENO, Magistrate Judge.


Tragedy struck one summer morning two years ago when an infant was found dead in her parents' bed. The parents were suspected of being the culprits or at least of having a hand in their daughter's death. Investigators talked to the child's mother, Kamelia No Moccasin, a/k/a Kamelia Shoulders, about what transpired on several occasions. During these conversations, No Moccasin made statements and submitted to a polygraph examination, all of which she now seeks to suppress. Because the statements were legally obtained, but reference to the examination and its results is not admissible, the Court recommends that No Moccasin's suppression motion be granted in part and denied in part.


Shortly before 8:00 a.m. on August 14, 2011, Rosebud Sioux Tribal Police received a call that there was an unresponsive infant at a residence located about two and-a-half miles west of Mission, South Dakota. Upon arrival, tribal police found C.R.B., an 8-month old child, dead and notified federal authorities of the same. A preliminary investigation, conducted later in the day, revealed that No Moccasin and Nathaniel Red Bird, were sleeping with C.R.B. the night before and may have been responsible for the child's death.

Steven Pettyjohn and Robert Sedlmajer, FBI and tribal special agents respectively, interviewed No Moccasin the following morning, August 15, 2011, at the Rosebud Police Department. At the time, she was in custody, having been arrested for tribal contempt (violating her bond in a pending criminal case). She made statements before the interview began and after being advised of and waiving her Miranda rights. She also provided a summary taped statement.

That same afternoon (August 15), No Moccasin made her initial appearance and was arraigned in tribal court on a child neglect charge. Accompanied by two lay advocates from the tribal public defender's office, she pled not guilty to the charge and was released on a $250 suspended cash bond and various conditions. About seven months later, with Sarah Harris (a tribal defender and licensed attorney) at her side, she pled no contest to the charge and was sentenced.

No Moccasin was again interviewed outside of her residence in Parmelee, South Dakota, on September 20, 2011. The interview took place in Agent Pettyjohn's vehicle and Sam Mautz, another FBI agent, witnessed the same. She agreed to talk to the agents and followed them out to the vehicle and got in. Because of the preliminary autopsy report (which showed C.R.B. died of a skull fracture), the agents did not consider No Moccasin to be a suspect and did not Mirandize her. After speaking to the agents for less than a half an hour and declining to provide them with a taped statement, No Moccasin exited the vehicle and did not return.

On September 11, 2012, after almost a year had passed, Agent Pettyjohn called No Moccasin in Rapid City, South Dakota, and asked her if she was willing to take a polygraph examination as she had said she would at an earlier point in time. During the telephone conversation, she expressed concern about losing a child she had recently regained custody of and having her new four month old infant (who she and Red Bird had together) taken away from her. She nonetheless agreed to submit to a polygraph at the Rapid City FBI office on November 7, 2012.

No Moccasin arrived, on her own, for the polygraph examination around 9:00 a.m. She signed an advice of rights form, acknowledging that she understood her rights and was willing to answer questions without an attorney present. She also signed a consent to interview with polygraph and agreed to submit to the examination. When FBI Agent Mark Sitko, the polygrapher, confronted her about the cause of C.R.B.'s head injuries, No Moccasin insisted that she did not hurt the child's head and did not see Red Bird or anyone else do so. Following this, she terminated the interview, walked out of the room and departed without incident.

Approximately two months afterwards, No Moccasin and Red Bird were charged, by federal indictment, with involuntary manslaughter in violation of 18 U.S.C. §§ 1153, 1112 and 2. Red Bird subsequently pled guilty to this offense and was sentenced. No Moccasin, however, has persisted in her not guilty plea and is scheduled for a jury trial next month.


A. August 15, 2011 Statements

1. Voluntariness

No Moccasin first claims that her statements made on August 15 to Agents Pettyjohn and Sedlmajer were involuntary. She seeks to have the statements excluded as trial evidence under the Fifth Amendment.

Due process requires that incriminating statements or "confessions" be voluntary.1 A statement is voluntary if it is "the product of an essentially free and unconstrained choice by its maker."2 Conversely, "[a] statement is involuntary when it [is] extracted by threats, violence, or express or implied promises sufficient to overbear [the suspect's] will and critically impair [her] capacity for self-determination."3

The totality of the circumstances must be considered when determining whether a statement was made voluntarily.4 When doing so, a court must focus on two factors: the conduct of the agents and the characteristics of the suspect.5 The Government bears the burden of persuasion and must prove, by a preponderance of the evidence, that the challenged statements were voluntary.6

The Court has scrutinized the record evidence now before it with these precepts in mind. In the process, the Court has evaluated the conduct of the agents and No Moccasin's ability to resist pressure and inducements brought to bear on her. Having considered all of the factors relevant to the voluntariness inquiry, the Court concludes that the requisite coercive or overreaching conduct necessary to render No Moccasin's statements involuntary was lacking. Several facts support this conclusion.

No Moccasin was 27 years old at the time of the interview, had her GED and one semester of college education. She was advised of her Miranda rights, waived them and agreed to talk to the agents about what happened the previous night. The interview was not lengthy - 30 to 60 minutes - and the agents spoke to her in a calm and compassionate manner.

Significantly, at no time did the agents make promises or threaten No Moccasin or use any force or pressure to get her to talk. She cooperated with the agents, volunteering information before being Mirandized and providing them with a taped summary statement.

No Moccasin's responses to questions from the agents were logical and understandable. While with the agents, she was not under the influence of alcohol or drugs and nothing she said or did indicated she suffered from any mental or physical infirmity.

Although she was crying and upset during the interview - because of the loss and premature death of her daughter - she nonetheless continued her conversations with the agents, telling them all that she could remember and blaming herself for C.R.B.'s demise. No strong-arm tactics, deceptive stratagems or coercive techniques were used to prey on No Moccasin's emotional state of mind or to get her to confess. Instead, the agents were gentle and kind and allowed her to tell them what she recalled at her own pace.

This is not one of those "rare" instances in which a suspect, after being properly advised of her Miranda rights and waiving them, failed to make an open and autonomous decision to speak with probing agents and incriminate herself.7 No Moccasin's forlorn statements, while empathetic, were nonetheless voluntary.

2. Miranda Waiver

No Moccasin next claims that her Miranda waiver was invalid. Specifically, she contends that she did not knowingly, voluntarily and intelligently waive her rights.

There are "two distinct dimensions" to the inquiry into whether a suspect's waiver of her Miranda rights was valid.8 First, the waiver "must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception."9 Second, the suspect must have waived her rights "with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it."10 The totality of the circumstances must be considered when determining the validity of the waiver.11

The same analysis concerning the voluntariness of a suspect's statements under the Fifth Amendment applies to determine whether the suspect's Miranda waiver was voluntary.12 Under either analysis, "absent evidence that the [suspect's] will [was] overborne and [her] capacity for self-determination critically impaired because of coercive police conduct", a waiver of Miranda rights will be considered voluntary.13

The Court has already determined that Agents Pettyjohn and Sedlmajer did not threaten or intimidate No Moccasin in any way to obtain her statements and that there was no coercion or overreaching. She was read her rights and made a deliberate choice to relinquish them and speak with the agents.

With respect to the second inquiry, the written waiver No Moccasin signed itself constitutes strong evidence that she had a clear understanding of her rights and gave them up.14 So too does the fact that she was conversant in the English language, had her GED and had taken at least one semester of college classes. Agent Pettyjohn read out loud to No Moccasin the advice of rights form. She then audibly read the waiver portion of the form and signed it, affirming that she understood her rights and was willing to proceed with the interview without the assistance of an attorney.

Importantly, No...

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