U.S. v. Doherty, 95-2231

• Decision Date: 30 October 1997
• Docket Number: No. 95-2231,95-2231
• Citation: 126 F.3d 769
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ross Allen DOHERTY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 769

126 F.3d 769

UNITED STATES of America, Plaintiff-Appellee, v. Ross Allen DOHERTY, Defendant-Appellant.

No. 95-2231.

United States Court of Appeals Sixth Circuit.

Argued March 27, 1997.

Decided Sept. 15, 1997.

Rehearing and Rehearing En Banc Denied Oct. 30, 1997.^*

Jeffery J. Davis (argued), Office of the U.S. Attorney, Grand Rapids, MI, Judd R. Spray (briefed), Office of the U.S. Attorney, Marquette, MI, for Plaintiff-Appellee.

Paul L. Mitchell (argued and briefed), Grand Rapids, MI, for Defendant-Appellant.

Before: MERRITT, KRUPANSKY, and BOGGS, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which KRUPANSKY, J., joined. MERRITT, J. (pp. 783-85), delivered a separate opinion concurring in part and dissenting in part.

BOGGS, Circuit Judge.

Ross Allen Doherty, a Native American and a resident of the Hannahville Indian Community tribal reservation, was convicted in the United States District Court for the Western District of Michigan of two counts of knowingly engaging in a sexual act with a child, in violation of 18 U.S.C. § 2243(a), as made applicable to tribal reservations by the Major Crimes Act, 18 U.S.C. § 1153(a). Doherty now appeals, arguing that the introduction into evidence of his signed confession violated his Fifth and Sixth Amendment rights. We affirm.

I. Background

The Hannahville Indian Community is a tribal reservation of approximately 300 persons located in the Upper Peninsula of Michigan. ¹ On February 8, 1995, Amy Hay, a children's protective-services worker employed by Hannahville, interviewed a 13-year-old child who was a resident of the reservation. After speaking with the child, Hay suspected that the girl may have been sexually molested by her mother's common-law husband, Ross Allen Doherty, who lived with her, her mother, and her sister and brothers. Accordingly, Hay secured a medical examination for the girl and arranged that she be placed in a foster care home. Hay's suspicions were brought to the attention of the Hannahville Indian Community Tribal Police and to agents of the Bureau of Indian Affairs (BIA) and the Federal Bureau of Investigation (FBI). On the same day, Doherty was arrested by the Tribal Police.

Doherty was arraigned in the Hannahville Indian Community Tribal Court the next day, February 9. The tribal judge informed him that he was being charged with statutory rape. Under Hannahville's criminal offenses code, that crime is defined to include sexual penetration of a child older than 12 years of age by a person who is a member of the same household as the child. The maximum penalty for such a violation is one year in prison and a fine of $5000, the greatest penalty that tribal courts are authorized to impose under 25 U.S.C. § 1302(7). The judge informed Doherty that he had the right to retain counsel at his own expense, and asked him whether he wished to do so. Doherty responded affirmatively, and indicated that at that time his mother was attempting to locate a lawyer. Accordingly, shortly before noon, the judge continued the arraignment so that Doherty could obtain a lawyer.

Doherty was then taken to the tribal police station, where he remained in custody. David Kleinpaste, a special agent of the FBI, suspected that Doherty's alleged violation of the tribal statutory rape law may also have been a violation of federal law. Accordingly, he accompanied Levi Carrick, an agent of the BIA, to the police station and asked to speak with Doherty. Doherty had not yet spoken with a lawyer at that time, and the record does not reveal whether a lawyer had in fact been retained at that time. Nonetheless, Doherty agreed to speak with the federal agents.

Before the interview began, at approximately 2:40 p.m., Agent Kleinpaste asked Doherty to read an advice-of-rights form. Agent Kleinpaste then read through the form line by line with Doherty, pausing after each line to ascertain that Doherty understood his rights, including the right to remain silent, the right to have a lawyer present during questioning, and the right to stop speaking and to request a lawyer at any time during the interview. Significantly, Agent Kleinpaste also explained to Doherty that, while he had no such right in the tribal court, he had the right to have a lawyer appointed for him at government expense for the purposes of the interview. Doherty signed a waiver form indicating that he understood his rights and that he elected voluntarily to proceed with the interview. Agent Kleinpaste later testified that Doherty "was aware of the fact that we were there for the very same incident which caused him to be in custody at that moment, the fact that an allegation had been made that he had touched these children in an inappropriate manner." The interview lasted about three hours. During the course of the interview, Doherty admitted that he had sexually abused his two stepdaughters and that he could not control the compulsion he felt to do so. At the conclusion of the interview, Doherty signed a confession that indicated that he had sexually molested his two stepdaughters on numerous occasions over a period of seven years.

On February 28, 1995, a grand jury of the United States District Court for the Western District of Michigan indicted Doherty on two counts of engaging in a sexual act with a child, in violation of 18 U.S.C. §§ 1153(a) and 2243(a). A superseding indictment added a third count charging Doherty with engaging in a sexual act with a child who has not reached the age of 12 years, in violation of 18 U.S.C. § 2241(c), which is also made applicable to acts committed on Indian reservations by 18 U.S.C. § 1153(a). Doherty filed a motion to suppress the confession, which was denied by the district court.

Doherty's case was tried on August 8 and August 9, 1995. At trial, Agent Kleinpaste read Doherty's confession into evidence. Doherty's stepdaughter testified at trial that Doherty had engaged in sexual acts with her on three different occasions. She testified that on one occasion, shortly before her twelfth birthday, Doherty pushed her into her mother's bedroom and engaged in sexual intercourse with her. She also testified that, when she was thirteen years old, on one occasion he pushed her into her mother's bedroom and touched her in a sexual manner, and on another occasion he pulled her out of her bed and engaged in sexual intercourse with her. She further testified that she never told anybody about the molestations before her interview with Amy Hay because Doherty "said that he would kill me, my sister, and my ma, and I knew he would." On cross examination, some confusion developed over the precise timing of the first incident of sexual abuse. The jury convicted Doherty of the two counts under 18 U.S.C. § 2243(a), but, presumably because of the confusion over the timing, acquitted him of the count under 18 U.S.C. § 2241(c), which required proof that the victim was under twelve years of age. The court sentenced Doherty to consecutive terms of imprisonment of 180 months and 113 months. Doherty now appeals.

II. Fifth Amendment

Doherty first alleges that his February 9 confession violated his Fifth Amendment right against compelled self-incrimination. While we review the ultimate legal conclusion of voluntariness de novo, we review the district court's determination of primary historical facts only for clear error. See United States v. Wrice, 954 F.2d 406, 410-11 (6th Cir.1992). Both Agent Kleinpaste and Agent Carrick testified at the hearing on the motion to suppress. According to their testimony, Agent Kleinpaste read the waiver-of-rights form with Doherty line by line, and ascertained that Doherty understood each sentence. Agent Kleinpaste informed Doherty at the beginning of the interview that he had the right to have an appointed attorney present during the interview, and asked him whether he had an attorney in the tribal court. Doherty responded that he did not, but that his mother was going to retain one. Agent Kleinpaste testified that Doherty understood that, while he did not have the right to an appointed attorney in tribal court, he did have such a right for the purposes of the interview. However, Doherty never requested the presence of an attorney at any time during the interview. At the conclusion of the interview, Agent Kleinpaste followed the same procedure as he did before with respect to the waiver of rights form; he read through the written confession line by line and ascertained that Doherty understood each sentence. After the interview, Doherty stated that he wished to be the first person to tell his common-law wife that he had confessed to abusing his stepdaughters.

Doherty testified at the evidentiary hearing that he didn't recall Agent Kleinpaste reading his rights to him, that during the interview he requested an attorney "[s]omewhere between four and ten times," and that Agent Kleinpaste told him that he didn't need an attorney because the letter that he would sign would establish his innocence. The district court found Doherty's version of events to be incredible, and we cannot state that this finding was clear error. Therefore, we take the federal agents' version of the facts as correct.

Doherty argues that his statement that his mother was attempting to locate an attorney constituted a request for an attorney, and that thereby the federal agents were required to cease their questioning of him. Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a suspect in custodial interrogation has the right under the Fifth Amendment to have an attorney present during such interrogation, and government agents are required to inform the suspect of that right. While the suspect may waive his right to the presence of an attorney, the burden of proof is on the government to establish by a preponderance of the evidence that such a waiver was made knowingly, intelligently, and voluntarily. See Davis v. United States, 512 U.S....