U.S. v. Chee

Decision Date29 January 2008
Docket NumberNo. 07-4057.,07-4057.
Citation514 F.3d 1106
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Alden Harmen CHEE, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Karin Fojtik, Assistant United States Attorney (Brett L. Tolman, United States Attorney, on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

K. Andrew Fitzgerald of Fitzgerald & Fitzgerald, Moab, Utah, for Defendant-Appellant.

Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Alden Harmen Chee was convicted of one count of aggravated sexual abuse while within Indian country (count 3), 18 U.S.C. §§ 2241(a)(1) and 1153(a), and was sentenced to 253 months' imprisonment followed by a life term of supervised release. He was acquitted of two other counts of aggravated sexual abuse. He appeals the district court's denial of his motion to suppress the oral and written confessions he made to police officers, and the sentence the district court imposed. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.


Mr. Chee is a practicing Navajo "medicine man"—an individual who performs traditional healing ceremonies. IV Aplt. App. at 453. He performed services for Lindsay Perry at her home on the. Navajo Indian reservation in Monument Valley, Utah, at the request of Ms. Perry's grandmother, Grace Cly. III Aplt.App. at 225; IV Aplt.App. at 455-56. Ms. Perry lives with her grandparents and her uncle, and Mr. Chee came to the home to perform ceremonies for Ms. Perry approximately three times over the course of at least three years. III Aplt.App. at 225-26; IV Aplt.App. at 455-56.

Ms. Perry is a 28 year-old woman with both mental and physical disabilities including seizures, partial paralysis on her right side, one leg that is shorter than the other, and a right hand that is weaker than her left. III Aplt.App. at 338-39, 341-43; Aplee. Br. at 7. In addition, she is moderately mentally retarded, having the mental capacity of a five year-old. III Aplt.App. at 341-42. She cannot cook or clean for herself and has problems with hygiene. Id. at 273-74. Despite these limitations, however, Ms. Perry was frequently left alone and did not lock the door as she had been instructed. Id. at 227-29.

Ms. Cly asked Mr. Chee to perform ceremonies at her home to alleviate Ms. Perry's problems, and he did so on three separate occasions. III Aplt.App. at 230; IV Aplt.App. at 455-56. He was asked to perform a fourth ceremony on September 28, 2005. IV Aplt.App. at 454-56, 464, 489-90. That day, Mr. Chee entered the Cly residence through an unlocked door; no one was home except Ms. Perry. Id. at 459-60. Mr. Chee went to Ms. Perry's bedroom where she was sleeping and woke her up. III Aplt.App. at 231-33. He pulled down her pajama pants and underwear and took his own pants off. Id. at 233, 238. Mr. Chee then grabbed Ms. Perry's wrist and lifted up her leg—Ms. Perry tried to fight him with a stick, but Mr. Chee grabbed it. Id. at 234. He penetrated her but did not ejaculate. Id. at 238, 401. Mr. Chee then left the house. IV Aplt.App. at 462.

Later that evening, Ms. Perry described the incident to her grandfather, who confronted Mr. Chee when he returned to the house. III Aplt.App. at 300-02. Mr. Chee told Ms. Perry that he was sorry several times and immediately left. Id. at 302-03. He returned the next day and told Ms. Cly that he had awakened Ms. Perry the day before. Id. at 285-86. Ms. Perry's grandparents then reported the incident to the authorities. Id. at 287-88. Ms. Perry was examined by a medical professional who found several signs of trauma: bruising on her right wrist and inner thigh in addition to a scratch on the exterior of her genitalia and micro abrasions inside her vagina. Id. at 363-67. Such micro abrasions are consistent with vaginal penetration. Id. at 367.

Special Agent Matt Larson of the Federal Bureau of Investigation sought an interview with Mr. Chee as the only suspect to the crime. I Aplt.App. at 90. He unsuccessfully tried to contact Mr. Chee at his residence, and then left a business card with Mr. Chee's daughter at her apartment, telling her that he wanted to speak to her father about a firearm Mr. Chee found in a car he had purchased at a government auction months before. Id. at 90, 103-05. Mr. Chee eventually called Agent Larson and they set-up an appointment at the Blanding Police Department for the following day, October 11, 2005. Id. at 90-91.

That morning, Mr. Chee arrived at the department on foot with his wife and was met by Agent Larson and Criminal Investigator Henry Lee, an investigator for the Navajo Nation Department of Public Safety. Id. at 92-93. Mr. Chee, Agent Larson, and Investigator Lee then went to Blanding Police Chief Mike Halliday's office, not a formal interview room, to talk. Id. Agent Larson told Mr. Chee's wife to stay outside. Id. at 129-30. Investigator Lee sat behind the desk, Agent Larson sat in a chair in front of the desk, and Mr. Chee sat in a chair positioned alongside the wall with the door. Id. at 94. Both Agent Larson and Investigator Lee were in plain clothes and did not have any firearms or handcuffs that were visible. Id. at 94, 101, 120. Mr. Chee was never handcuffed or restrained in any way during the course of the interview, but the door was closed. Id. at 94-95, 113.

Agent Larson began the conversation by telling Mr. Chee that he was not under arrest, he was not in any trouble, he could leave if he wanted, and he did not have to talk. Id. at 96. He began questioning Mr. Chee about the firearm that Mr. Chee had found in his car months earlier. Id. at 97. Thereafter, Agent Larson asked him about the sexual assault on. Ms. Perry. Id. Agent Larson told him that Ms. Perry's grandmother was very upset about what had happened, and Mr. Chee replied that he knew she was upset and had tried to apologize. Id. Agent Larson then asked Mr. Chee to tell him what happened, and Mr. Chee initially denied having sex with Ms. Perry. Id. at 98. After his denial, Agent Larson informed him that the police had obtained DNA evidence from the scene when, in fact, Agent Larson knew they had not. Id. Mr. Chee admitted at this point that he had sex with Ms. Perry against her will and, at Agent Larson's suggestion, agreed to write a letter of apology to Ms. Perry and her grandmother. Id. at 99. Mr. Chee wrote the letter for approximately ten minutes while Agent Larson made suggestions for what to include. Id. at 99-100, 111-12. No threats or promises of leniency were ever made. Id. at 101.

After he finished writing the letter, Agent Larson asked a few more questions and told Mr. Chee, after he inquired what would happen next, that other people would make that determination. Id. at 101-02. Agent Larson testified that the interview was conversational in tone and lasted less than an hour. Id. at 100-01. On his way out, Mr. Chee was asked to give a DNA sample; he complied and left the station. Id. at 102.

The district court denied Mr. Chee's motion to suppress his oral and written confessions because they were obtained by the police in violation of his Fifth Amendment rights. Id. at 11, 55. The court rejected Mr. Chee's arguments that he was "in custody" under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and that his confessions and incriminating statements were involuntary. I Aplt.App. at 46. In sentencing Mr. Chee to 253 Months' imprisonment, the district court began with a base offense level of 30, U.S.S.G. § 2A3.1, and added enhancements for the use of force, U.S.S.G. § 2A3.1(b)(1) (four levels), a vulnerable victim, U.S.S.G. § 3A1.1(b)(1) (two levels), and the abuse of a position of trust, U.S.S.G. § 3B1.3 (two levels). IV Aplt. App. at 545-47. This resulted in a total offense level of 38, with a criminal history category of I (Mr. Chee had no criminal history points). II Aplt.App. at 172-73. The sentence fell within the middle of the recommended sentencing range of 235-293 months. Id. at 172; IV Aplt.App. at 560. The district court rejected a downward departure from the guidelines based upon Mr. Chee's alleged diminished capacity at the time of the crime. IV Aplt.App. at 559-60.


On appeal, Mr. Chee argues that the district court (1) erred in denying his motion to suppress on the basis that he was not "in custody" and in determining that his oral and written confessions were voluntarily made,1 (2) did not make adequate findings as to whether Mr. Chee had "an extraordinary physical impairment" due to his age and mental disabilities that would warrant a downward departure from the sentencing guidelines, and (3) incorrectly applied sentencing enhancements for the use of force, a vulnerable victim, and the abuse of a position of trust.

I. Miranda

We first address whether Mr. Chee's oral and written confessions were obtained in violation of his Fifth Amendment rights articulated in Miranda. We review the district court's denial of Mr. Chee's motion to suppress and whether Mr. Chee was "in custody" for Miranda purposes de novo. See United States v. Thomson, 354 F.3d 1197, 1199-1200 (10th Cir.2003); United States v. Erving L., 147 F.3d 1240, 1246 (10th Cir.1998). We accept the district court's factual findings unless they are clearly erroneous and view the evidence in the light most favorable to the government. Thomson, 354 F.3d at 1199-1200.

The Supreme Court in Miranda held that any confession obtained during a "custodial interrogation" may not be used by the prosecution against the defendant unless the prosecution demonstrates the use of procedural safeguards effective to secure the Fifth Amendment privilege against self-incrimination. See 384 U.S. at 444, 86 S.Ct. 1602. Prior to questioning, the person being interrogated must be warned of his "Miranda rights," including his right to remain silent. See id. Miranda rights need only be given to a suspect at the moment that suspect is "in...

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