US v. Duncan

Decision Date01 July 1994
Docket NumberNo. 93-CR-0136-S.,93-CR-0136-S.
Citation857 F. Supp. 852
PartiesUNITED STATES of America, Plaintiff, v. Emmett Wesley DUNCAN and Michael Gray, Defendant.
CourtU.S. District Court — District of Utah

Richard N.W. Lambert, Asst. U.S. Atty., U.S. Attorney's Office, Salt Lake City, UT, for plaintiff.

Deirdre A. Gorman, Farr, Kaufman, Sullivan, Gorman, Jensen, Perkins & Medsker, Ogden, UT, for defendant.

ORDER

SAM, District Judge.

The court has before it the Report and Recommendation of the magistrate judge dated May 26, 1994. Defendant Michael Gray has filed a one sentence objection to the Report and Recommendation.

Notwithstanding that defendant has failed to identify "those portions of the report or specified proposed findings or recommendations to which objection is made", 28 U.S.C. § 636(b)(1)(C), the court has considered the entire matter de novo and concludes that the Report and Recommendation is correct in every material respect and adopts it as the court's own opinion.

Accordingly, defendant's Motion to Suppress is DENIED. However, for the reasons outlined in the Report and Recommendation, all counts against defendant, except Count II, are dismissed.

REPORT & RECOMMENDATION

BOYCE, United States Magistrate Judge.

The defendant, Michael Gray, was indicted on nine counts of burglary within Indian Country (File Entry 1). Most of the counts charged conduct occurring in Roosevelt City, Utah. However, following the United States Supreme Court's decision in Hagen v. Utah, ___ U.S. ___, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994) the counts occurring in Roosevelt City were determined not to involve conduct within Indian Country and must be dismissed sua sponte. However, Count II charges a burglary in Ft. Duchesne, Utah. Ft. Duchesne is within Indian Country and that count remains outstanding under 18 U.S.C. § 1153(a) and (b) assimilating Utah Code Ann. § 76-6-202.

The defendant, Michael Gray, made a motion to suppress evidence allegedly based on an illegal search of his home. The portion of the motion for suppression has now been abandoned. The defendant Gray also made a motion to suppress statements taken from the defendant allegedly in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and the Fifth and Sixth Amendments (File Entry 28). A memorandum in support of the motion was submitted (File Entry 30). Included in the memorandum is a claim that the government violated the McNabb-Mallory rule, 18 U.S.C. § 3501 (Point II). Hearing on the motion was continued by the parties. Hearings were held on February 23, 1994 (Tr. 2/13/94), March 31, 1994 (Tr. 3/31/94) and April 22, 1994 (Tr. 4/22/94).

The case was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). This report and recommendation is submitted pursuant to reference on the defendant Michael Gray's motion to suppress his statements.1

Evidence

Officer Tracy Bird of the Roosevelt City Police Department responded to a call from supermarket employees in the city on April 28, 1993 at 2:45 a.m. He observed four persons standing in front of the store. The store was Stewart's Thriftway and some store employees were present (Tr. 2/23, pp. 5-6). Defendant Gray was being restrained by the other men present (Tr. 2/23 p. 6). The store employees said they had caught two individuals on the roof and they believed they were trying to break in. The store employees said the defendant, Michael Gray, said he and his companion were on the roof hunting rabbits and sightseeing. Defendant Gray and the other person with him were armed. He had a .22 caliber pistol (Tr. 2/23 p. 7). Gray said he had a gun and Officer Bird grabbed Gray, handcuffed him and patted him down. He retrieved a pistol and a clip (Tr. 2/23 pp. 7-8). Gray was yelling at another officer and lunged towards him and Gray was put on the ground. He was then placed in a vehicle and taken to the Roosevelt City Police Department. He was under arrest for attempted burglary (Tr. 2/23 p. 8). The firearm taken from defendant was not loaded. (Id.). The arrest was at 2:55 a.m.

Cecil Gurr, Roosevelt City Chief of Police, testified (Tr. 2/23 p. 12). He had been employed as a police officer for Roosevelt City since 1974 and Chief of Police since 1978. Gurr knew the defendant prior to April 28, 1993. Gurr's first contact with defendant on the 28th was when officers called him and said there had been people on top of Stewart's Thriftway with weapons. Gurr saw defendant at 4:00 a.m. at the Roosevelt Police station. The defendant was given a full Miranda warning. The defendant signed a waiver of rights (Gov. Exh. 1) (Tr. 2/23 pp. 14-15). Thereafter, Gurr questioned the defendant. According to Gurr, there were at least two separate interviews of defendant. One on the early morning of April 28, 1993 and one on the morning of the 29th of April 1993. The only thing said at the initial interview on the 28th of April was a statement by defendant about his being on top of the store rabbit hunting (Tr. 2/23 p. 16). At about 5:00 a.m. on the same day a search was made of Unit H-1 of the Stoneridge Apartments in Roosevelt. That search is not an issue in this motion. However, stolen evidence was gathered from the search (Tr. 2/23 p. 17) (Exhibit 2 is a consent search form).

After the search, a second interview of defendant occurred at 8:52 a.m. on the 28th. The defendant executed a written advice and waiver form before this interview (Pl. Exh. 3). Defendant Gray was willing to speak to Officer Gurr (Id.). Gray was confronted with the seized property and admitted he had burglarized the Ute Manufacturing Company in Ft. Duchesne, Utah on two occasions within the last two weeks (Tr. 2/23 p. 20). He gave a statement about how the burglaries were conducted (Tr. 2/23 p. 21).

On the 29th of April, 1993, Gurr again spoke to Gray and he was advised of his rights by Mr. Peter Maybee. Gray waived his rights and gave a statement about the Ute Manufacturing burglaries in Ft. Duchesne. He said that he had acted alone, and identified what he had taken. This was about 11:30 a.m. Gray was advised of his rights at 9:45. The interview ended at 11:45 (Tr. 2/23 pp. 21-22). Gray is an enrolled member of the Ute Tribe (Tr. 2/23 p. 22). At the time, Roosevelt City was considered to be in Indian Country by federal officials but not by the State of Utah.2 The FBI was contacted and advised of defendant's presence in the Roosevelt City Jail. The last interview of Gray was at the Ft. Duchesne Jail on April 29, (Uintah-Ouray Reservation) (Tr. 2/23 p. 23) by an FBI agent. Peter Maybee was a Bureau of Indian Affairs (BIA) officer (Tr. 2/23 p. 24).

The defendant did not make a statement about the Ute Manufacturing burglary when first interviewed by Chief Gurr at about 4:00 a.m. on April 28, 1993. Gray only spoke about rabbit hunting on the roof of the place where he was apprehended. The second interview was at 8:52 a.m. in the Roosevelt City Jail. After that interview defendant was transported to Ft. Duchesne around 9:30 to 10:00 a.m. (Tr. 2/23 p. 26). The second interview lasted 45 minutes. Gurr referred the case to tribal authorities. Some federal action was taken, but Gurr had no knowledge of what happened (Tr. 2/23 p. 27). Defendant was not transported by Gurr to a magistrate before the interviews on the 28th or 29th of April at Ft. Duchesne (Tr. 2/23 p. 28).

The interview on the 29th of April at Ft. Duchesne was conducted by BIA officers (Tr. 2/23 p. 28). According to Chief Gurr, defendant made a statement to Gurr on April 28, at 8:52 p.m. when defendant was confronted with stolen property found in defendant's girlfriend's apartment (Tr. 2/23 p. 29). Defendant may have been told that charges could be filed against defendant's girlfriend because of her having possession of stolen property (Id.). Nothing was said at that time about the children being in foster care, except a statement may have been made that if defendant's girlfriend was arrested the children would have to be cared for (Tr. 2/23 p. 30). No statement was made that defendant's girlfriend would be arrested if the defendant did not confess (Id.). No promise or threat was made to defendant nor any indication made that something bad would happen if he didn't confess (Tr. 2/23 p. 31). Defendant did not invoke his preinterrogation rights.

Chief Gurr on recross examination, after his recollection had been refreshed, admitted that following Gray's arrest on the 28th he was transported to Ft. Duchesne at approximately 5:00 a.m. and then he was returned to Roosevelt at 8:52 a.m. (Tr. 2/23 p. 36) at which time the second interrogation of defendant Gray took place.

FBI Special Agent McPheters testified that he was assigned to the Vernal, Ft. Duchesne, Roosevelt area of Eastern Utah (Tr. 2/23 p. 37). On April 29, 1993 he spoke to the defendant at about 2:00 p.m. The interview took place at the Law Enforcement Services office at Ft. Duchesne (Tr. 2/23 p. 38). McPheters only knew that Gray had been arrested the day before by state officers. At 2:08 p.m. McPheters advised the defendant of his rights from an FBI form. Defendant signed a waiver of rights form (Tr. 2/23 p. 39, Pl. Exh. 4). The defendant was not under the influence of anything, no promises or threats were made to the defendant (Tr. 2/23 p. 40). Defendant indicated a willingness to talk (Id.). He made a written statement admitting burglaries of the Ute Manufacturing Company (Tr. 2/23 pp. 41-42). The interview lasted about 45 minutes. Ute Manufacturing is in Ft. Duchesne on the Uintah-Ouray (Ute) Reservation. No statement was made by McPheters or Agent Johnson, who was also present, about the defendant's girlfriend (Tr. 2/23 p. 45).

Defendant Michael Gray testified (Tr. 2/23 p. 41). He said that on April 28, 1993 when the police came he told them that Gray and his companion had been rabbit hunting and had gone up on the building to look around. A statement was taken from defendant by Chief Gurr at about...

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