U.S. v. Plumman

• Decision Date: 03 June 2005
• Docket Number: No. 04-2206.,04-2206.
• Citation: 409 F.3d 919
• Parties: UNITED STATES of America, Appellee, v. Cyril S. PLUMMAN, also known as Steve Plumman, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 919

409 F.3d 919

UNITED STATES of America, Appellee, v. Cyril S. PLUMMAN, also known as Steve Plumman, Appellant.

No. 04-2206.

United States Court of Appeals, Eighth Circuit.

Submitted: December 14, 2004.

Filed: June 3, 2005.

COPYRIGHT MATERIAL OMITTED

Jeffrey Lynn Viken, FPD, argued, Pierre, SD (Edward G. Albright, AFPD, Pierre, SD, on the brief), for appellant.

Mark E. Salter, AUSA, argued, Pierre, SD, for appellee.

Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

The government indicted Cyril Steve Plumman (Plumman), a Native American residing within the territory of the Rosebud Indian Reservation, with seven counts of aggravated sexual abuse of two minor females and with ten additional counts of sexual abuse of two minor females, in violations of 18 U.S.C. §§ 1153, 2241(c), 2246(2)(A)-(D). A jury convicted Plumman on sixteen of the seventeen counts. The district court¹ sentenced Plumman to mandatory life imprisonment. Plumman appeals his convictions and sentence. We affirm the convictions on all counts and the sentences on Counts VIII through XVII, but remand for resentencing on Counts I through VI, as explained below.

I. BACKGROUND

A. Factual Summary

Because this case involves two minor females, we refer to the minors by initials. K.P. was born October 8, 1989, and her younger sister, P.P., was born on October 20, 1990. K.P.'s and P.P.'s biological father died in August 1995. Thereafter, their mother Sandra Iron Shell (Sandra) and Plumman began a relationship. Plumman moved into Sandra's home in October 1996. K.P. and P.P. lived with Sandra, Plumman, and their two younger half-siblings, born of the union between Sandra and Plumman.

In early March 2003, P.P., who was twelve years old, handed Sandra a note, which stated Plumman was touching P.P., she did not like Plumman touching her, but nothing was going on. The note also stated P.P. wanted Plumman to stop touching her, and P.P. was sorry. On the note P.P. drew a sad face bearing a frown with tears streaming from the eyes. After receiving the note, Sandra confronted Plumman, who denied doing anything to P.P. Sandra also spoke to P.P. and K.P., and both denied having any sexual contact with Plumman. Sandra told P.P. if Plumman touched her again, she should tell her school counselor.

Sometime in late March or early April, Sandra unexpectedly returned home one morning from work. Once inside the house, Sandra noticed K.P.'s bedroom door was closed. When she opened the door to K.P.'s bedroom, Sandra saw Plumman standing near the bed wearing only a pair of black trunks. K.P. was awake and lying under the bed covers. Sandra asked Plumman what he was doing in the bedroom, and Plumman replied he was trying to fix something. Although suspicious, Sandra took no protective actions.

On April 8, P.P. was attending the He Dog School and requested to see the school counselor, Sherwood Paul Vosburg (Vosburg). P.P. told Vosburg Plumman had touched her and her sister K.P. inappropriately. Vosburg asked P.P. if her mother knew about the improper touching, and P.P. explained that her mother had told her to tell the school counselor. Thereafter, Vosburg called Sandra, informed her of the allegations and confirmed Sandra knew of the allegations and had instructed P.P. to tell the school counselor. Vosburg, a mandatory child abuse reporter, called the South Dakota Department of Social Services (DSS), reported the allegations, and requested an immediate investigation. Afterwards, Vosburg spoke with K.P., who attended the same school, and K.P. confirmed that Plumman also had touched her inappropriately. Vosburg explained to P.P. and K.P. that DSS would investigate and told the girls they needed to tell the truth to the investigators.

Later on April 8, a criminal investigator for the Rosebud Sioux Tribe named Grace Her Many Horses (Many Horses) and a DSS child abuse investigator named Beth Valandra-Burnette traveled to the He Dog School to interview the two sisters. The investigators first interviewed P.P., who cried throughout the interview as she told investigators how Plumman would kiss her, fondle her breasts, and touch her vaginal area over her clothes. P.P. told investigators, whenever she resisted Plumman, he would become angry. After completing P.P.'s interview, the investigators interviewed K.P., who told investigators that, from the time she was about eleven years old, Plumman had fondled her breasts, forced his penis into her vaginal area, and rubbed his penis in her vaginal area and between her legs. K.P. also cried during her interview and was unable to tell investigators whether Plumman had penetrated her or ejaculated. K.P. told investigators Plumman had instructed her not to tell anyone about their secret.

Based on the information obtained from the interviews, the investigators determined the girls were not safe in their home, and DSS took custody of the girls, eventually placing them with their maternal aunt. After taking protective custody of the girls, the investigators went to Plumman's house to take protective custody of the two younger siblings and to explain to Plumman why the children were being removed from the home. At trial, Many Horses described Plumman's demeanor as being angry when she removed the younger siblings from the home, and also testified Plumman asked her what was going to happen now. The following day, the tribal court entered a temporary emergency custody order.

Two days later, the FBI office in Pierre, South Dakota, received a summary from DSS regarding the allegations against Plumman as well as a notice of allegation from Rosebud Sioux Tribal Law Enforcement. On April 18, FBI Special Agents Kevin McGrane (Agent McGrane) and Mike McRoden (Agent McRoden) drove to Plumman's house, arriving at 10:40 a.m. Agent McGrane knocked on the door. When Plumman eventually appeared, Agent McGrane showed his identification and told Plumman he would like to talk with him about P.P. and K.P. Agent McGrane advised Plumman he was not under arrest and he would not be arrested when the agents were done talking with him. Plumman agreed to talk with the agents. After dressing, Plumman walked outside and entered the front passenger seat of Agent McGrane's Ford Expedition, which was parked in the driveway of this residential area. Agent McRoden sat directly behind the driver's seat. Agent McRoden was present throughout the entire interview, but he did not ask questions, except for one question during the summary taping at the end of the interview.

Agent McGrane interviewed Plumman for an estimated three and one-half hours. Throughout the first two hours of the interview, Plumman denied having any sexual contact with either P.P. or K.P. However, during the last hour of the interview, Plumman made incriminating admissions. When Agent McGrane told Plumman the girls had made repeated allegations that Plumman sexually abused them, Plumman responded, "if they're saying that, it must have happened." Plumman admitted to having sexual intercourse with K.P. eight or nine times during the previous eight months and three or four times with P.P. during the preceding six months before the FBI interview. Plumman denied digitally penetrating either girl and also denied engaging in anal intercourse with K.P. At the end of the FBI interview, Agent McGrane asked Plumman if he would make either a written or tape-recorded statement. Plumman agreed to make a taped statement, which lasted approximately four minutes. Plumman then exited the Expedition and returned to his house.

On the same day as the FBI interview, a tribal criminal complaint was filed against Plumman alleging two counts of rape and two counts of sexual contact with a minor. On April 23, Plumman was arrested by tribal authorities, appeared in tribal court, and was housed at the Rosebud Sioux Tribe Law Enforcement Center. A month later, on May 22, a federal grand jury indicted Plumman on seventeen counts of aggravated sexual abuse and sexual abuse of a minor. Two weeks later, on June 4, Agent McGrane drove to the Rosebud Sioux Tribe Law Enforcement Center, took custody of Plumman, served him with copies of the federal indictment and arrest warrant, and transported Plumman to Pierre, South Dakota, for his federal arraignment. After Plumman entered the vehicle, Agent McGrane told Plumman he was not going to interview him about the allegations contained in the indictment, and if Plumman had any questions about the federal charges, he should wait and consult a lawyer. Approximately twenty-five minutes into the drive from Rosebud to Pierre, after reviewing the indictment, Plumman exclaimed, "What! I didn't humiliate them, they wanted it."

B. Procedural Summary

Plumman moved to suppress incriminating statements he made to FBI agents on April 28 and June 4. The magistrate judge² found Plumman was not in police custody on April 28, but made the statements "voluntarily ... during the course of non-custodial interrogation so that Miranda warnings were not required and such statements were not obtained in violation of his Fifth and Sixth Amendment rights." The magistrate judge determined that, although Plumman was in police custody on June 4, his remarks "were voluntary and not [made] in response to interrogation and that the same were elicited in compliance with the Fifth and Sixth Amendments." The magistrate judge further found Plumman had "volunteered information about his sexual exploits with K.P. and P.P." Adopting the recommendation of the magistrate judge, the district court denied Plumman's motion to suppress the statements.

Plumman proceeded to trial on February 17-20, 2004. K.P. and P.P. testified at trial, as did their mother, Sandra. Plumman also took the stand, testifying he never sexually abused the girls, and contending K.P. and P.P. lied about the sexual abuse allegations because they were angry at Plumman for making them do chores, and because...