U.S. v. Dupris, No. CR 05-30024, 2006.

• Decision Date: 03 February 2006
• Docket Number: No. CR 05-30024, 2006.
• Citation: 422 F.Supp.2d 1061,2006 DSD 4
• Parties: UNITED STATES of America, Plaintiff, v. Dean DUPRIS, Defendant.
• Court: U.S. District Court — District of South Dakota

422 F.Supp.2d 1061

2006 DSD 4

UNITED STATES of America, Plaintiff, v. Dean DUPRIS, Defendant.

No. CR 05-30024, 2006.

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

February 3, 2006.

COPYRIGHT MATERIAL OMITTED

Randolph J. Seiler, Esq., Assistant United States Attorney, Pierre, SD, for Plaintiff.

Edward G. Albright, Esq., Assistant Federal Public Defender, Pierre, SD, for Defendant.

ORDER

KORNMANN, District Judge.

Defendant filed a motion for suppression of statements (Doc. 25) and a supporting memorandum (Doc. 26). U.S. Magistrate Judge Moreno conducted evidentiary hearings on September 7, 2005, and January 19, 2006, and filed and served a report and recommendation for disposition of the motion (Doc. 64). The Court has conducted a de novo review of the transcripts of the hearings (Doc. 66 and 67), all exhibits received in evidence at the hearings by the magistrate (Doc. 36), and all the files and records herein. This includes but is not limited to the Cheyenne River Sioux Tribe Constitution and Bylaws, the tribal law and order code (1978 revision), "law and order issues 1978 through 2004", law and order code amendments, and the tribal court documents as to Dean Dupris. I have also listened to the tape recording (Exhibit A) of the arraignment in tribal court of the defendant. Defendant has timely filed objections (Doc. 72) to the recommendation of the magistrate and the objections have been considered.

One of the principal issues here is, of course, whether this case comes within the legal principles of United States v. Red Bird, 287 F.3d 709 (8th Cir.2002), a case in which I was the trial judge, suppressed evidence, and was affirmed on appeal. I agree with the magistrate that the cases are different and Redbird does not apply. I find nothing to indicate that the magistrate's assessment of credibility issues should be overturned. Part of defendant's testimony went "back and forth", depending upon who was questioning him.

I am skeptical of the statement of the magistrate that FBI agent Trone made it clear to the defendant "that the investigation had nothing to do with the suspension." Rather, it appears that any question whether the investigation dealt with a personnel matter was not really addressed. Trone would have had no obligation to assure defendant that the investigation was not dealing with a personnel matter. Any reasonable and rational FBI agent would not think that the defendant would have thought anything else than that the defendant was under investigation for a very serious federal crime. Certainly, the defendant was not misled. The defendant claims to have thought that the purpose of the federal investigations was somehow tied into his personnel problems. Even assuming such belief to be true, such belief would have been objectively totally unreasonable. Given the background, law enforcement training, experience and education of the defendant, he would have known very well what the federal agents were doing and why.

Although there is a fair amount of confusion as to what happened in tribal court, what customs or practices are which fly in the face of written documents, including the tribal code, when and how a court record was changed, and related matters, I assume for the purpose of this opinion that defendant was represented by a lay representative of the tribal defender's office during his arraignment in tribal court. I also assume that such lay representative, although never having been formally appointed to represent defendant, was still representing defendant in the tribal court matter at the time of the federal interviews. I also assume that defendant had not waived his right to lay representation at the time he was arraigned in tribal court. I thus disagree with the conclusion or finding by the magistrate that defendant had "waived his right to counsel" in tribal court, but only if that is taken to mean that defendant had waived his right to representation by a lay representative. If the word "counsel" means a lawyer, I agree with the magistrate that the defendant has clearly waived his right to be represented by a lawyer in tribal court. The defendant has also waived his right to be represented by a lawyer (or anyone else for that matter) in connection with the statements he gave. None of this does anything to cause the court to not adopt the report and recommendations of the magistrate.

It is obvious that the polygraph results and the outcome should be suppressed.

The objections should be overruled, the motion denied in part and granted in part, and the report and recommendations accepted and adopted.

Now, therefore,

IT IS ORDERED, as follows:

1) That the motion for suppression of evidence in the nature of statements (Doc. 25) is hereby denied in part and granted in part, as set forth in the report and recommendations and as described above.

2) The report and recommendations of the magistrate (Doc. 64) is hereby accepted and adopted.

3) The objections of the defendant (Doc. 72) are overruled.

REPORT AND RECOMMENDATIONS FOR DISPOSITION OF DEFENDANT'S MOTION TO SUPPRESS

MORENO, United States Magistrate Judge.

[¶ 1] Defendant, Dean Dupris, has filed a Motion to Suppress, and supporting Memorandum, Docket Nos. 25, 26. In his Motion, Defendant seeks to suppress any and all statements made by him to federal and tribal investigators on October 27, 2004, and those made during and in connection with a polygraph examination administered on January 13, 2005, including the outcome of such an examination and the fact that one was administered to him. Plaintiff, United States of America (Government), has filed a written Response to the Motion resisting the same and requesting that it be denied in its entirety.

[¶ 2] On September 7, 2005 and January 19, 2006, this Court held evidentiary hearings on the Motion at which eight witnesses testified and fourteen exhibits were admitted. Because the Motion is a dispositive one, the Court is only authorized to determine the same on a report and recommendation basis. Pursuant to 28 U.S.C. § 636(b)(1), the Court does now make and propose the following report and recommendation for disposition of the Motion.

I.

[¶ 3] Defendant, a 26-year-old high school graduate and former tribal policeman, is charged with one count of sexual abuse and two counts of tampering with a witness. The Indictment alleges that Defendant sexually abused Robin Turning Heart at a time when she was asleep or passed out in her bedroom. He is also charged with corruptly persuading Kirk High Elk to make, or attempt to make, false and misleading statements (a) to law enforcement officials about the commission of a possible federal offense and (b) to influence, delay and prevent High Elk from testifying in an official proceeding. Defendant has pled not guilty to all three charges and requested a jury trial. The trial is scheduled to commence on February 22, 2006.

II.

[¶ 4] The salient facts can be briefly recited. During the early morning hours of September 28, 2004, Turning Heart reported that she had been raped by Defendant at her residence in the Bear Creek area on the Cheyenne River Indian Reservation. Tribal and federal authorities thereafter investigated the alleged rape and on October 27, 2004, Defendant was interviewed outside his residence in Eagle Butte. FBI Agent Brett Lonnel Bray, conducted the interview, with Sonny Garreau, a detective with the Cheyenne River Sioux Tribe (CRST), in the latter's sport utility vehicle. After being advised of his Griffin rights and Miranda warnings, Defendant agreed to talk to Bray and Garreau and admitted to having consensual sexual intercourse with Turning Heart while she was awake and aware of what was happening. At the time of the interview, Defendant was suspended by, but not terminated from, the CRST Police Department. At the end of the interview, Defendant agreed to take a polygraph and then left the vehicle and went into his house a short distance away.

[¶ 5] On January 3, 2005, Defendant was charged in tribal court with rape, aggravated assault, assaulting a law enforcement officer, aggravated trespass and public nuisance. The next day, he appeared in tribal court with lay counsel, Carson Mound, was arraigned and pled not guilty to all five charges.

[¶ 6] On January 13, 2005, Defendant appeared, without counsel, at the Walter Miner Law Enforcement Center in Eagle Butte and submitted to a polygraph examination conducted by FBI Agent Robert Trone, a trained polygrapher. Trone opined that Defendant's responses during the examination were indicative of deception and advised Defendant of this. When Trone questioned him further, Defendant changed his story and made inculpatory statements about the Turning Heart incident.

[¶ 7] Defendant seeks now to suppress his October 27th and January 13th statements on voluntariness grounds under the Fifth Amendment, his January 13th statements on Sixth Amendment grounds, citing United States v. Red Bird, 287 F.3d 709 (8th Cir.2002), and the polygraph exam and its results as well based on Fed. R.Evid. 403 and United States v. Waters, 194 F.3d 926 (8th Cir.1999).

III.

[¶ 8] The Fifth Amendment prohibits the use of involuntary statements at trial. Chavez v. Martinez, 538 U.S. 760, 769, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003); see also United States v. Bordeaux, 400 F.3d 548, 560 (8th Cir.2005). A statement is involuntary when it is extracted by threats, violence, or express or implied promises sufficient to overbear a suspect's will and critically impair his capacity for self-determination. United States v. LeBrun, 363 F.3d 715, 724 (8th Cir.2004) (en banc), cert. denied, 543 U.S. 1145, 125 S.Ct. 1292, 161 L.Ed.2d 105 (2005); see also United States v. Brave Heart, 397 F.3d 1035, 1040 (8th Cir.2005). Whether the suspect's will has been overborne is determined by examining the totality of the circumstances, including both the conduct of officers in exerting pressure on...