U.S. v. Swift Hawk, CR 00-30061.

• Decision Date: 11 December 2000
• Docket Number: No. CR 00-30061.,CR 00-30061.
• Citation: 125 F.Supp.2d 384
• Parties: 2000 D.S.D. 52 UNITED STATES of America, Plaintiff, v. Gerald SWIFT HAWK, Defendant.
• Court: U.S. District Court — District of South Dakota

Page 384

125 F.Supp.2d 384

2000 D.S.D. 52 UNITED STATES of America, Plaintiff, v. Gerald SWIFT HAWK, Defendant.

No. CR 00-30061.

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

December 11, 2000.

Jay P. Miller, U.S. Attorney's Office, Pierre, South Dakota, for plaintiffs.

Edward G. Albright, Federal Public Defender's Office, Pierre, South Dakota, for defendants.

ORDER

KORNMANN, District Judge.

[¶ 1.] This is a case involving the charge of operating a motor vehicle under the influence of alcohol in Indian Country. As I have stated previously in other cases, I did not realize, prior to taking office as an Article III judge, that I would be presiding over drunk driving cases. The allegation in the present case is also that a minor, i.e. a person less than 18 years of age, the son of the defendant, Gerald Swift Hawk ("Swift Hawk"), sustained serious bodily injury as a result of Swift Hawk driving under the influence. What is the bottom line if these allegations are true? Congress has seen fit to impose altogether different penalties on Native Americans driving under the influence in Indian Country as compared with those who drive under the influence elsewhere. Thus, a person of German or Norwegian descent driving under the influence in Aberdeen, SD, would not face nearly the same penalties as a Native American driving on one of the reservations in South Dakota. Why Congress would have done this is beyond me. There is apparently a never ending trail of Congress making almost everything a federal crime. The vast majority of members of Congress apparently give no thought to what they are doing to Native Americans who are then made subject to these federal crimes, carrying penalties out of all proportion to penalties found outside Indian Country. The vast majority of members of Congress come from states where Indian Country does not exist. Principles of federalism are no longer given sufficient consideration. Chief Justice Rehnquist has pointed this out several times in recent years. Pursuant to 18 U.S.C. § 13(b)(2)(A), Native Americans driving under the influence in Indian Country as well as impaired drivers on Ellsworth Air Force Base and other federal enclaves face not only the "normal punishment" in South Dakota but also the punishment "shall include an additional term of imprisonment of not more than 1 year, or if serious bodily injury of a minor is caused, not more than 5 years, or if death of a minor is caused, not more than 10 years, and an additional fine ..." Thus, Swift Hawk faces up to five years more time in prison and a much higher fine than a similarly situated Norwegian or, for that matter, another Native American driving in Sioux Falls. This is without taking into account the terrible harshness of the Federal Sentencing Guidelines in their treatment of Native Americans. Again, I do not understand the logic of any of this. It is, if nothing else, unfair and discriminatory. It is certainly not "equal justice under law." But it is the law and my job is to follow constitutional laws as enacted by Congress.

[¶ 2.] Swift Hawk filed a motion to suppress certain statements (Doc. 31), a motion to suppress blood-alcohol evidence (Doc. 33), and a supplemental motion (Doc. 47) as to both of the previous motions. U.S. Magistrate Judge Moreno, after conducting an evidentiary hearing, filed and served a report and recommendations for disposition of Swift Hawk's motions (Doc. 54) and a supplement to the report and recommendations (Doc. 56). Judge Moreno also stated his detailed findings, conclusions and recommendations in open court in the presence of the parties and their attorneys and this is part of the record (Doc. 55). I have conducted a de novo review of the transcript of the evidentiary hearing (Doc. 46), the record made in open court (Doc. 55) and all the files and records herein, including, of course, all the responses filed by the government. Swift Hawk filed and served objections (Doc. 59) to the recommendations of the magistrate; the objections have been considered. The government filed and served objections (Doc. 60) to the magistrate's report and recommendations; such objections have also been considered.

[¶ 3.] The federal "implied consent law" is found at 18 U.S.C. § 3118. The implied consent for a blood test does not come into existence unless the driver has first been arrested for any offense arising from such person having operated a motor vehicle in the special maritime or territorial jurisdiction of the United States. This is the first question to be answered. As to the second question, the statute further provides that the test is to be administered if the officer had "reasonable grounds to believe the person arrested" had been operating the motor vehicle while under the influence of drugs or alcohol "in violation of the laws of a State, territory, possession, or district." Swift Hawk could not have violated, as such, South Dakota laws since state laws, in general, have no application in Indian Country. The statute is not particularly well written. The parties have not addressed what is a "territory, possession, or district." It is clear that no reference is made to Indian Country, i.e. the special territorial jurisdiction of the United States, in the last sentence of the 18 U.S.C. § 3118(a).

[¶ 4.] Turning to the first question to be answered, it is clear that the tribal criminal investigator, Grace Her Many Horses, did not know whether Swift Hawk had been arrested before she ordered his blood to be drawn at the hospital. The testimony of tribal officer Murray was very confusing and, in places, plainly contradictory as to the sequence involving the arrival of Her Many Horses (obviously before the drawing of the blood) and the arrest of Swift Hawk. Judge Moreno heard the testimony and saw the witnesses. There is clear support and testimony to the effect that the defendant was under arrest and the blood was then drawn, meeting the requirements of the statute, and I so find. It is, as a matter of law, immaterial that Her Many Horses, in seeking to have the blood drawn, did not know that officer Murray had previously arrested Swift Hawk.

[¶ 5.] Turning to the second question, it makes no difference whether implied consent might have existed if, in fact, Swift Hawk actually voluntarily consented to have his blood drawn and tested. The testimony of Her Many Horses is not consistent. The first implication of her testimony was that she simply told Swift Hawk she was taking his blood. The leading question asked was: "You asked him if he would consent to a blood sample?" She did not say "yes." She answered: "I just told him that I was going to be taking his blood." Later and in response to a number of questions, she testified that Swift Hawk was told that the officer "needed to get a sample of his blood and he agreed to it." Swift Hawk did not attempt to rebut this in his testimony. Again, Judge Moreno heard the testimony and observed the witnesses. He found that consent was given and this Court will not reverse that finding but will adopt it. It is clear that the tribal investigator did not explain to Swift Hawk the implied consent law, either as it works in South Dakota (SDCL 32-23-10) or as the federal statute provides. Swift Hawk was given no form to sign to consent to the drawing of his blood and no form explaining the implied consent law. The tribal investigator failed to follow proper procedures for any officer seeking to have blood drawn from a person suspected of having been driving under the influence.

[¶ 6.] Swift Hawk was, as indicated, arrested on tribal charges which were essentially the same as the later federal charge filed. He appeared in tribal court with counsel, the tribal public defenders' office, for his arraignment. The arraignment was completed and he was released on bond. After all this had occurred, an F.B.I. agent and the tribal investigator, Her Many Horses, interviewed Swift Hawk at his home and took a statement from him. This conduct is very troubling. To his credit, as previously urged by this Court on many occasions, the F.B.I. agent tape recorded the statement. The statement is not part of the record at this time but, at least in this case, we will not have to decide who said what and what adjectives were used. Both the agent and Her Many Horses knew that Swift Hawk had already made a tribal court appearance on the D.U.I. charge, i.e. that he had been arraigned and formally charged. Her Many Horses knew that counsel would have been appointed for him in tribal court (as is always done in Rosebud) and, since the charges were still pending, that his lawyer would still have been acting as counsel for Swift Hawk. This Court takes judicial notice that, in civil cases, investigators and especially attorneys do not question a person they know to be represented by counsel without the attorney's consent and knowledge. Having practiced law for thirty years, primarily as a trial attorney representing a large number of insurance companies as well as plaintiffs, I know that all reputable insurance companies and adjusters in the United States have adopted this policy and have reduced it to writing. It would obviously be highly unethical for any attorney to talk to or even attempt to talk with another party when the attorney knows that party is represented by counsel. It is simply not "fair play" to "go around" the attorney, even when the represented party agrees to talk without the presence of his attorney. Swift Hawk was not told that he had the right to have his attorney present when he was being questioned. He was not asked whether he wanted his attorney present. No permission was sought or received from his attorney to interview him. He was given only the "Griffin" rights and not the Miranda rights. Swift Hawk had not made his first appearance in federal court on this charge and had not even been indicted. He was clearly not in custody on any charge...