U.S. v. Burnette

• Decision Date: 16 November 2007
• Docket Number: No. 1:06-CR-172.,1:06-CR-172.
• Parties: UNITED STATES of America v. Steven Aubrey BURNETTE.
• Court: U.S. District Court — Eastern District of Texas

535 F.Supp.2d 772

UNITED STATES of America v. Steven Aubrey BURNETTE.

No. 1:06-CR-172.

United States District Court, E.D. Texas, Beaumont Division.

November 16, 2007.

Order Overruling Objections January 31, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gerard Raphael Rawls, U.S. Attorney's Office, Beaumont, TX, for Plaintiff.

Steven Aubrey Burnette, pro se.

Gary R. Bonneaux, FPD, Orange, TX, stand-by counsel.

ORDER ADOPTING UNITED STATES MAGISTRATE JUDGE'S REPORT

RON CLARK, District Judge.

Defendant Steven Aubrey Burnette moves to suppress any incriminating statements he allegedly made to agents of the Office of Inspector General, Department of Justice.

The court referred this matter to the Honorable Earl S. Hines, United States magistrate judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. Judge Hines concluded that the alleged incriminating statements were not made during a custodial law-enforcement interrogation, were voluntary, and were not obtained in violation of Miranda or the Fifth or Sixth Amendments. Judge Hines therefore recommended that the motion to suppress be denied.

No objections have been filed. Accordingly, the findings of fact and conclusions of law of the magistrate judge are correct and the report of the magistrate judge is ADOPTED. It is further

ORDERED that defendant's motion to suppress (Docket Nos. 20 & 25) is DENIED.

So ORDERED and SIGNED this 15 day of November, 2007.

ORDER OVERRULING LATE OBJECTIONS TO SUPPRESSION REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

RON CLARK, District Judge.

Following a formal suppression hearing, the Honorable Earl S. Hines, United States magistrate judge, submitted a report recommending that defendant's motion to suppress incriminating statements allegedly made to agents of the Office of the Inspector General be denied. That recommendation was adopted without objection on November 16, 2007.

Defendant filed late objections which the court now elects to entertain. This requires 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)(C).

After conducting such review, the court concludes that the magistrate judge's findings, conclusions and analysis are correct. Defendant raises no significant new substantive arguments that the magistrate judge did not carefully consider and correctly evaluate in his report and recommendation.

The objections raise several new subsidiary issues that also do not warrant rejecting the magistrate judge's report. The magistrate judge acted within his discretion to allow an out-of-town defense witness to testify out of turn in order to avoid having the witness appear for a second time. No objection was voiced at the time, and defendant's after-the-fact suggestion of ensuant prejudice is conclusory and unsupported by any specific manifestation.

Similarly, the magistrate judge acted within limits of sound discretion in refusing to allow the defendant to cross examine on irrelevant issues relating to general conditions of confinement, and to persist unreasonably in asking redundant and testimonial questions. Finally, there is no evidence of bias or omission of evidence important to the suppression issue in the magistrate judge's report.

The court also independently has considered whether a Sixth Amendment violation occurred when agents of the Office of Inspector General resumed an interview after defendant asked to confer with counsel, and did in fact confer telephonically with counsel. Although that decision was risky, the court concludes, as did the magistrate judge, that the Sixth Amendment was not implicated. Before there can be a Sixth Amendment violation, the right must attach and then be invoked, in that order. Here, the right was invoked, but had not yet attached because no adversary proceedings had been initiated against Burnette.

It is therefore ORDERED that defendant's objections are OVERRULED.

REPORT AND. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

EARL S. HINES, United States Magistrate Judge.

Defendant, Steven Aubrey Burnette (hereafter "Burnette") is charged in a two-count indictment with making false statements in a matter within the jurisdiction`of the executive branch of the Government of the United States, all in violation of Title 18 U.S.C., Section 1001. Specifically, Burnette is charged with making false, sworn, written statements to special agents' of the Office of the Inspector General, Department of Justice (OIG).

The United States proposes to offer evidence at trial that Burnette later admitted to OIG agents that his sworn statements were untrue. Burnette denies that he made such admissions, but, alternatively, seeks to suppress those alleged statements from being used against him at trial.

I. PROCEDURAL STATUS

This case-is assigned to Hon. Ron Clark, United States District Judge, who by order entered on July 9, 2007, referred Burnette's motion to suppress to the undersigned for report and recommendation. (Docket. No. 23). Evidentiary hearings on the motion were held on September 4 and 17, 2007. Testimony was received from (1) Derric Wilson, a Special Investigative Agent at the U.S. Federal Correctional Complex in Beaumont, (2) Fred C. Ball, Jr., and John Schwartz, both Special Agents of the Office of Inspector General during all relevant times,¹ (3) Glenn Cortello, Esq., an attorney in Alexandria, Louisiana, and (4) Burnette. In addition, the court received several documentary exhibits offered by each side.

This report now addresses defendant's motion to suppress, as amended.²

II FACTUAL BACKGROUND

Steven Aubrey Burnette, an inmate at the Federal Bureau of Prisons (BOP), is serving a 141-month sentence for armed bank robbery. He has been in BOP custody since June, 2000. During his incarceration, Burnette has been housed at the Federal Correctional Institution in Beckley, West Virginia, and United States Penitentiaries in Pollock, Louisiana; Beaumont, Texas; and Atwater, California.

Burnette, while competent to stand trial, is emotionally disturbed. He has a major depressive disorder — moderate — with paranoid and antisocial features. His psychological profile is consistent with persons who ruminate about their relative ill-health as a central source and outlet for their anxiety. This, together with a pervasive mistrust of all correctional staff and inmates, has resulted in Burnette's poor institutional adjustment in every facility where he has been housed.³ Specifically, and relevant here, Burnette believes that he has been severely mistreated by BOP medical staff at each facility. Also, Burnette believes that BOP attempts to cover up its significantly substandard medical treatment practices. In the case now pending, he perceives that BOP generated fraudulent documents purporting to show that he refused medical treatment when in fact correctional staff refused to offer or provide it to him.

Between July, 2002, and February, 2006, Burnette was housed at the United States Penitentiary (USP) in Pollock, Louisiana. While there, he was the victim of an inmate assault on June 9, 2004. He subsequently alleged that certain correctional officers facilitated and allowed the assault to occur in retaliation for his supposed insolence and failure to acquiesce in those officials' corruption. Burnette further claimed that medical personnel at USP Pollock refused to provide him medical treatment after the assault, and then falsified documents stating that Burnette refused medical treatment. Finally, Burnette alleged that he was sexually victimized by a BOP medical staff member at USP Pollock.

Burnette wrote the Department of Justice's Office of the Inspector General complaining of the above staff misconduct towards him while he was in USP Pollock. OIG Special Agent Lori Gray interviewed Burnette, but Burnette never heard anything further regarding findings or disposition of his complaint. Accordingly, in January of 2006, Burnette wrote more letters to OIG, and filed multiple lawsuits accusing the Bureau of Prisons of widespread violations of his civil rights. Shortly thereafter, on February 2, 2006, Burnette was transferred to USP Beaumont.

Burnette wrote OIG again in May or June of 2006. This time, he repeated his allegations regarding misconduct by BOP officials, but also added allegations of an official cover-up by the Office of the Inspector General. Moreover, in that letter, Burnette requested that OIG administer to him a video/audio recorded polygraph examination to "bolster his credibility."

Special Agent Ball was assigned to investigate Burnette's allegations. Between late June and early August of 2006, Special Agents Ball and Schwartz interviewed Burnette on four different occasions. These interviews all occurred under the same protocol. A regular correctional officer would remove Burnette from his cell and then escort him, in hand restraints (per routine policy for escorting inmates), to the Receiving and Discharge area of the prison. That secluded area in the prison generally has a lot of staff, does not have inmates other than those on their way out or just arriving, and offers a private place for an interview. The location enhanced Burnette's safety in that no other inmates who might recognize him would perceive that he was cooperating with law enforcement.

The interviews would occur, and then Burnette would be escorted back to his cell in the same manner. The only difference in the procedures for the four interviews was that on the first occasion, hand restraints were not removed. On the remaining three occasions, hand restraints were removed while he spoke with the OIG agents.

The first interview occurred on June 27, 2006. Agents Ball and Schwartz attempted to obtain an affidavit from Burnette regarding his allegations. Burnette was asked to...