U.S. v. Senogles, Criminal No. 08-117 (DWF/RLE).

• Decision Date: 04 August 2008
• Docket Number: Criminal No. 08-117 (DWF/RLE).
• Citation: 570 F.Supp.2d 1134
• Parties: UNITED STATES of America, Plaintiff, v. Bradley Wilford SENOGLES, Defendant.
• Court: U.S. District Court — District of Minnesota

570 F.Supp.2d 1134

UNITED STATES of America, Plaintiff, v. Bradley Wilford SENOGLES, Defendant.

Criminal No. 08-117 (DWF/RLE).

United States District Court, D. Minnesota.

August 4, 2008.

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Kimberly A. Svendsen, Assistant United States Attorney, United States Attorney's Office, for Plaintiff.

Mark D. Larsen, Esq., Lindquist & Vennum PLLP, for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

DONOVAN W. FRANK, District Judge.

This matter is before the Court upon the objections of Defendant Bradley Wilford Senogles ("Defendant") (Doc. No. 58) to the Report and Recommendation dated July 8, 2008 of Chief Magistrate Judge Raymond L. Erickson (Doc. No. 56), which recommends denying Defendant's Motion to Dismiss Indictment (Doc. No. 21) and Motion to Suppress Statements, Admissions and Answers (Doc. No. 28); and denying Defendant's Motion to Suppress Evidence Derived From Searches and Seizures (Doc. No. 27) as moot.

The Court has conducted a de novo review of the Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), Fed. R.Crim.P. 59(B)(3), and Local Rule 72.2(b). The Court has also considered U.S. v. May, 535 F.3d 912 (8th Cir.2008). The factual background for this matter is clearly and precisely set forth in the Report and Recommendation and is incorporated by reference herein.

Based on its de novo review of the record and all of the arguments and submissions of the parties and the Court being otherwise duly advised of the premises, this Court agrees with the decision of Chief Magistrate Judge Erickson and the Court hereby enters the following:

ORDER

1. Defendant's Objections to Magistrate Judge's Report and Recommendation (Doc. No. 58) are DENIED.

2. The Report and Recommendation of Chief Magistrate Judge Raymond L. Erickson dated July 8, 2008 (Doc. No. 56) is ADOPTED.

3. Defendant's Motion to Dismiss Indictment (Doc. No. 21) is DENIED.

4. Defendant's Motion to Suppress Statements, Admissions and Answers (Doc. No. 28) is DENIED.

5. Defendant's Motion to Suppress Evidence Derived from Searches and Seizures (Doc. No. 27) is DENIED, AS MOOT.

REPORT AND RECOMMENDATION

RAYMOND L. ERICKSON, United States Chief Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the Defendant's Motion to Dismiss Indictment, Motion to Suppress Evidence Derived from Searches and Seizures, and Motion to Suppress Statements, Admissions and Answers. A Hearing on the Defendant's Motions was conducted on May 13, 2008, at which time, the Defendant appeared personally, and by Mark D. Larsen, Esq., and the Government appeared by Kimberly A. Svendsen, Assistant United States Attorney.

In order to allow the taking of additional testimony, the Hearing on the Defendant's Motion to Suppress Statements, Admissions, and Answers, was continued to May 20, 2008, at which time, the Defendant appeared personally, and by Mark D. Larsen, Esq., and the Government appeared by Michael L. Cheever, Assistant United States Attorney.¹

For reasons which follow, we recommend that the Defendant's Motion to Dismiss Indictment be denied, that the Defendant's Motion to Suppress Statements, Admissions and Answers, be denied, and that the Defendant's Motion to Suppress Evidence Derived from Searches and Seizures be denied, as moot.

II. Factual and Procedural Background

The Defendant is charged with one (1) Count of Failure to Register as a Sex Offender, in violation of Title 18 U.S.C. § 2250(a). The alleged violation is said to have occurred from in or about July of 2007, to on or about March 14, 2008, in this State and District. According to the Indictment, see, Docket No. 12, the Defendant is required to register, under the Sex Offender Registration and Notification Act ("SORNA" or the "Act"), as a sex offender, by reason of a conviction under Federal law, and he knowingly failed to update his registration while entering, leaving, and residing, in Indian country, in violation of SORNA. As pertinent to those charges, and to the Motions now before us, the operative facts may be briefly summarized.²

At the Motions Hearing, which was held on May 13, 2008, the Defendant offered the testimony of Alisa Goodshield ("Goodshield"), who is the sister of the Defendant. Goodshield testified that she was present at the time of the Defendant's arrest, which occurred on March 26, 2008. According to Goodshield, on the morning of the Defendant's arrest, she had dropped her son off at his school, at 9:40 o'clock a.m., and the school is located approximately one (1) mile from her mother's house. Goodshield then returned to her mother's house, and joined her sister in the kitchen, where they visited for approximately five (5) to ten (10) minutes, and were interrupted by police officers knocking on the door. Goodshield admitted that she was not certain of the exact time at which the arresting officers arrived at the house, but that she was confident that it could not have been after 11:00 o'clock a.m.

During the course of that Hearing, the Defendant also called Matthew Moran ("Moran"), who is a Deputy with the United States Marshal Service, as a witness.³ Moran stated that he was a Sex Offender Investigative Coordinator, who had been assigned to the Defendant's case approximately two (2) to three (3) weeks prior to the Defendant's arrest. Moran was not involved in the Defendant's arrest, but interviewed him at the Sherburne County Jail, at approximately 3:30 o'clock p.m., or 4:00 o'clock p.m., on the day of his arrest. Moran testified that the Defendant was arrested at his mother's house, which is located in Minneapolis, and that the Minneapolis Courthouse is approximately five (5) to ten (10) miles from the arrest site, and that the Sherburne County Jail is located approximately thirty (30) miles from the arrest site.

According to Moran, on the day of the Defendant's arrest, MaryAnn Laliberte ("Laliberte"), who is a Warrant Clerk with the United States Marshal Service, telephoned the District Court, in an attempt to arrange for the Defendant to initially appear before a Judicial Officer, and was told that the arresting officers should not bring the Defendant to the Courthouse, as he could not be seen by Pretrial Services on that day. Moran added that he was not certain if a hearing before a Magistrate could be held without a Pretrial interview, but he acknowledged that, if the Defendant had been taken before a Magistrate Judge on March 26, 2008, he probably would not have interviewed the Defendant on that date.

At the Hearing on May 20, 2008, the Government recalled Moran as a witness, over the objection of the Defendant that he had previously been excused. Moran testified that, on March 26, 2008, he had been attempting to locate the Defendant in Cass Lake, Minnesota, which is approximately a three (3) hour drive, by car, from Minneapolis. While in Cass Lake, Moran received information that the Defendant was at his mother's house in Minneapolis, and between 10:00 o'clock a.m., and 10:30 o'clock a.m., Moran called Deputy Sean Malecha ("Malecha"), who was located in Minneapolis, and asked him to attempt the arrest of the Defendant. While Moran remained in Cass Lake to continue his investigation, Malecha drove to the house of the Defendant's mother, where he arrived at approximately 11:00 o'clock a.m. Moran testified that Malecha informed him that, after he had located and arrested the Defendant, he remained at the house until approximately 11:30 o'clock a.m., questioning the remaining witnesses on the scene.

In his testimony on May 20, 2008, Moran clarified that, after he learned that Malecha had arrested the Defendant, he spoke with Laliberte, who advised him that Initial Appearances, before a Magistrate Judge in this Court, were scheduled that day for 1:30 o'clock p.m. According to Moran, the United States Marshal Service has an official policy, which requires that an arrestee be interviewed by Pretrial Services prior to making an Initial Appearance and, if a Pretrial Services interview was not available, then the arrestee would be booked into custody until Pretrial Services can conduct its interview for the Magistrate Judge. Moran stated that, in order for the Defendant to be interviewed by Pretrial Services on March 26, 2008, he would have to be present at the United States Courthouse, in Minneapolis, by 11:30 o'clock a.m.

Since Malecha could not satisfy that deadline, as he was not finished with his arrest of the Defendant until approximately 11:30 o'clock a.m., Moran telephoned Malecha, and instructed him to take the Defendant directly to the Sherburne County Jail. The Defendant was booked at the Sherburne County Jail at approximately 12:28 o'clock p.m., and Moran drove to the Jail in order to interview him—an interview that commenced at 4:00 o'clock p.m. At the commencement of that interview, Moran advised the Defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the Defendant signed a Waiver of Rights form, which confirmed that he understood his rights, that he was willing to make a statement and answer questions, and that he did not wish to speak to a lawyer at that time. See, Government's Exhibit 1. The Government has also introduced a recording of the Defendant's interview with Moran, see, Government's Exhibit 2, and, at the start of the interview, which lasted approximately twenty (20) minutes, the Defendant confirmed that he had been advised of his rights, and that he chose to waive those rights in order to speak with Moran. The audiorecording, however, does not contain a Miranda recitation.

III. Discussion

A. The Defendant's Motion to Dismiss Indictment. The Defendant argues that the Indictment should be dismissed for the...