US v. Bad Hand

Decision Date21 May 1996
Docket NumberCrim. No. 95-30068.
Citation926 F. Supp. 891
PartiesUNITED STATES of America, Plaintiff, v. Melvin W. BAD HAND, Defendant.
CourtU.S. District Court — District of South Dakota

Thomas J. Wright, Assistant United States Attorney, Pierre, SD, for Plaintiff United States of America.

Thomas P. Maher, Maher & Arendt, Pierre, SD, for Defendant Melvin W. Bad Hand.

ORDER

KORNMANN, District Judge.

Defendant filed a motion to suppress, Doc. 30. The Court submitted the motion to U.S. Magistrate Judge Mark Moreno pursuant to the provisions of 28 U.S.C. 636(b)(1)(B). The magistrate judge conducted three evidentiary hearings on the motion and submitted his Report and Recommendation For Disposition to the Court on May 9, 1996. A copy of such Report and Recommendation For Disposition was served upon the parties as required by 28 U.S.C. § 636. The defendant has filed written objections thereto, the Court having granted defendant an extension of time until 8:00 a.m. on May 21, 1996, to file such written objections.

The Court has made a de novo review of the record and transcripts herein and determines that the defendant's objections (including those filed on May 21, 1996) should be overruled and the findings and recommendations of the magistrate judge should be accepted and the motion to suppress denied.

Now, therefore,

IT IS ORDERED:

(1) The Report and Recommendation for Disposition of the U.S. Magistrate Judge filed May 9, 1996, is hereby adopted as the Findings of Fact and Conclusions of Law herein.

(2) This Court also finds that defendant's tribal attorney told him to take the polygraph examination and would not have changed his opinion and advice even if he had been able to be present for the examination in Kadoka, the tribal attorney having relied on defendant's statements to him as to his complete innocence. Such statements of defendant were consistent with his many denials given to law enforcement officials.

(3) The objections of defendant to the Report and Recommendation are overruled. The proposed findings of fact as urged by defendant on May 21, 1996, are rejected except as to B and H on page 4 of Doc 184 which are accepted as additional findings.

(4) The defendant's motion to suppress, Doc. 30, is denied.

APPENDIX

DEFENDANT'S OBJECTIONS TO REPORT AND RECOMMENDATION FOR DISPOSITION

COMES NOW Defendant, Melvin W. Bad Hand, and makes the Objections to the Report and Recommendation (Docket No. 157) concerning the defendant's Motion to Suppress (Doc. 30).

This Court referred the defendant's Motion to Suppress to the Magistrate court pursuant to 28 U.S.C. 636(b)(1). (Doc. 33 and 41). 28 U.S.C. 636(b)(1), in relevant part, provides:

(B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for disposition, by a judge of the court, of any motion excepted in subparagraph (A), ... Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall made a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the finding or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

Counsel for the Defendant received a copy of the Report and Recommendation herein, on the afternoon of May 9, 1996. The Defendant has made a written Motion for Continuance, based, in part upon the lack of sufficient time to adequately prepare these Objections to the Magistrate's report.

These Objections are summary in nature, in order to provide same to the Court, as trial in this matter is scheduled to commence May 21, 1996 at 9:00 o'clock a.m.

The Defendant has attached four photographs, of the basement of the Kadoka County courthouse, for the Court's consideration of the custodial interrogation issue in this case. The photos show the bench and law enforcement sign where Martha sat while Melvin Bad Hand was interrogated, the telephone that was used to contact Marian White Mouse in order to determine tribal Attorney Mesteth's whereabouts, and the interior of the interrogation room. The photographs also tend to establish that there was not window in the interrogation room, as referenced by Agent Davis.

OBJECTIONS TO FACTUAL FINDINGS

1. The Defendant objects to the relevance of the factual finding that "Bad Hand never made mention of the fact that he was scheduled to take a polygraph examination", in order to suggest that the Defendant was not truthful with Attorney Mesteth. (Doc. 157 at page 3). The Government presented no showing that the Defendant's polygraph examination was scheduled on February 24, 1995. In fact Agent Asbury admitted that she contacted a "third party", that her phone calls were "not direct", and "it took a while to arrange it." (Transcript of January 31, and February 2, 1996 Evidentiary Hearing page 11, hereafter EH 1).

2. The Defendant objects to the finding that Bad Hand approached Davis. (Doc. 30 at 4). Bad Hand requested an attorney, and communicated to Agent Davis that he wanted his attorney present for the polygraph interview. Agent Davis responded:

I said that he's probably a tribal attorney, but this is a federal charge, I do not believe that he's qualified to handle anything in federal court. (EH 1 at page 62).

3. The Defendant objects to the finding that Bad Hand agreed to take the polygraph examination and exam scheduling was discussed with him. (Doc. 30 at 4). The polygraph examination was scheduled by Agent Asbury, after the Defendant's interview on February 24, 1995. (EH 1 at 8 and EH 1 at 85).

4. The Defendant objects to the finding that Davis explained the polygraph and fairly advised Defendant of his constitutional rights. (Doc. 30 at 4). Defendant was told that since this was a federal case, tribal Attorney Mesteth was not qualified.

5. The Defendant objects to the finding that Bad Hand read and understood the "YOUR RIGHTS" and "CONSENT TO INTERVIEW WITH POLYGRAPH" forms. (Doc. 30 at 5). Defendant was improperly advised regarding his right to an attorney. Defendant was subjected to time pressure. Agent Davis offered legal advice and stated to Defendant that, if you are innocent, you should take the test.

6. The Defendant objects to the Magistrate finding that "he Bad Hand confirmed that he did in fact have sexual intercourse with T.K.". (Doc. 30 at 7).

7. The Defendant objects to any finding that he stated or related to Agent Davis that he had sex with Toni Renee Kimbler in December of 1993. (Doc. 30 at 7).

8. The Defendant objects to the finding that he read and proofed the words written by Agent Davis. (Doc. 30 at 7).

9. The Defendant objects to the finding that he acknowledged that the words written by Agent Davis were true and correct, that no threat promises had been made to him, and that he was aware that the statement could be used in court against him. (Doc. 30 at 7).

Proposed Findings of Fact

A. Agent Davis made a discriminatory statement to deny Defendant's request for an attorney. (EH at 62). Orally, Agent Davis told Martha and Melvin Bad Hand that tribal Attorney Mesteth was not qualified. Shortly thereafter, Agent Davis advised Defendant of his right to an attorney.

B. Agent Davis did not reschedule or offer to reschedule polygraph examination.

C. Agent Davis offered legal advice to the Defendant on the decision to proceed with a polygraph examination.

H. Melvin W. Bad Hand has low level mental abilities, has a low I.Q. and has slow reading and communications ability. Please see testimony of Dr. Frank L. Dame. (EH 1 at 141-173 and EH 2 at 3-21 and EH 1 Exhibit A and EH 2 Exhibit A).

Magistrate Moreno's report does not address the issue of Agent Davis' acknowledged effort to dissuade the Defendant to wait for tribal Attorney Mesteth.

Credibility of Martha Bad Hand.

Agent Davis acknowledged that he was going to Rapid City. Martha Bad Hand recalled that Agent Davis was coming from Rapid City. Martha Bad Hand's entire testimony should not be deemed incredible, on this inconsistency. Martha Bad Hand and the Defendant understood that Defendant was not being arrested and that the polygraph test was over.

Defendant incorporates by reference his Motion to Suppress, with Statement of Authorities, as if fully recited herein. (Doc. 30).

CONCLUSION

Plaintiff requests this court to enter an order that the purported "confession" statement of Melvin W. Bad Hand be excluded from the Government's case in chief for the reasons that (1) the statement was taken in violation of Edwards v. Arizona, alternatively, (2) the Government failed to establish by a preponderance of evidence that the statement was voluntarily taken from Defendant, (3) that Defendant voluntarily, knowingly and intelligently waived his Miranda rights, including the right to have an attorney, and (4) that Agent Davis interfered with the Defendant's request to have an attorney present at his polygraph examination, by the use of a discriminatory statement.

RESPECTFULLY SUBMITTED this 21st day of May, 1996.

MAHER & ARENDT By: /s/ Thomas Maher Thomas P. Maher, Attorney for Melvin W. Bad Hand 201 North Euclid, Suite 1 Pierre, South Dakota XXXXX-XXXX (605) 224-0491

CERTIFICATE OF SERVICE

I, Thomas P. Maher, do hereby certify that I served a true and correct copy of the foregoing Plaintiff/Petitioner's Objections to Report and Recommendations for Disposition upon the persons next designated by mailing same by first class mail, postage prepaid, addressed as follows:

Mr. Thomas J. Wright, AUSA 337 Federal Building 225 S. Pierre Street Pierre, SD 57501 DATED this 21st day of May, 1996. /s/ Thomas P. Maher Thomas...

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